EXHIBIT 4.2(iv)
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BIG FLOWER HOLDINGS, INC.
to
THE BANK OF NEW YORK
as Trustee
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INDENTURE
Dated as of October 20, 1997
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6% CONVERTIBLE SUBORDINATED DEBENTURES
DUE OCTOBER 15, 2027
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Reconciliation and tie between the Trust Indenture Act of 1939 (including
cross-references to provisions of Sections 310 to and including 317 which,
pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended by the
Trust Reform Act of 1990, are a part of and govern the Indenture whether or not
physically contained therein) and the Indenture, dated as of October 20, 1997.
Trust Indenture Indenture Section
Act Section
ss. 310(a)(1), (2) and (5)...........................................6.9
(a)(3)..............................................Not Applicable
(a)(4)..............................................Not Applicable
(b)............................................................6.8
........................................................6.10
(c).................................................Not Applicable
ss. 311(a)..........................................................6.13
(b)...........................................................6.13
(b)(2)......................................................7.3(a)
............................................................7.3(a)
ss. 312(a)...........................................................7.1
............................................................7.2(a)
(b).........................................................7.2(b)
(c).........................................................7.2(c)
ss. 313(a)................................................7.3(a), 7.3(b)
(b) ......................................................7.3(a)
(c).........................................................7.3(a)
(d).........................................................7.3(c)
ss. 314(a)(1), (2),(3) and (4).......................................7.4
(b).................................................Not Applicable
(c)(1).........................................................1.2
(c)(2).........................................................1.2
(c)(3)..............................................Not Applicable
(d).................................................Not Applicable
(e)............................................................1.2
(f).................................................Not Applicable
ss. 315(a)........................................................6.1(a)
(b)............................................................6.2
(c).........................................................6.1(b)
(d).........................................................6.1(c)
(d)(1)...................................................6.1(a)(1)
(d)(2)...................................................6.1(c)(2)
(d)(3)...................................................6.1(c)(3)
(e)...........................................................5.14
ss. 316(a)..........................................................5.12
(a)(1)(B).....................................................5.13
(a)(2)..............................................Not Applicable
(b)............................................................5.8
(c).........................................................1.4(f)
ss. 317(a)(1)........................................................5.3
(a)(2).........................................................5.4
(b)...........................................................10.3
ss. 318(a)...........................................................1.7
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Convertible Subor dinated Indenture.
TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions.........................................1
SECTION 1.2. Compliance Certificate and
Opinions...........................................15
SECTION 1.3. Forms of Documents Delivered to
Trustee............................................15
SECTION 1.4. Acts of Holders....................................16
SECTION 1.5. Notices, Etc. to Trustee and
Company............................................17
SECTION 1.6. Notice to Holders; Waiver..........................18
SECTION 1.7. Conflict with Trust Indenture Act..................18
SECTION 1.8. Effect of Headings and Table of
Contents...........................................19
SECTION 1.9. Successors and Assigns.............................19
SECTION 1.10. Separability Clause................................19
SECTION 1.11. Benefits of Indenture..............................19
SECTION 1.12. Governing Law......................................19
SECTION 1.13. Non-Business Days..................................19
ARTICLE 2 DEBENTURE FORM
SECTION 2.1. Forms Generally....................................20
SECTION 2.2. Form of Face of Debenture..........................20
SECTION 2.3. Form of Reverse of Debenture.......................21
SECTION 2.4. Additional Provisions Required
in Global Debenture................................33
SECTION 2.5. Form of Trustee's Certificate of
Authentication.....................................33
SECTION 2.6. Initial Issuance to Property
Trustee............................................33
ARTICLE 3 THE DEBENTURES
SECTION 3.1. Amount of Debentures...............................34
SECTION 3.2. Denominations......................................34
SECTION 3.3. Execution, Authentication,
Delivery and Dating................................34
SECTION 3.4. Temporary Debentures...............................35
SECTION 3.5. Registration, Transfer and
Exchange...........................................36
SECTION 3.6. Mutilated, Destroyed, Lost and
Stolen Debentures..................................38
SECTION 3.7. Payment of Interest; Interest
Rights Preserved...................................39
SECTION 3.8. Persons Deemed Owners..............................40
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SECTION 3.9. Cancellation.......................................40
SECTION 3.10. Computation of Interest............................41
SECTION 3.11. Deferrals of Interest Payment
Dates..............................................41
SECTION 3.12. Right of Set-off...................................42
SECTION 3.13. Agreed Tax Treatment...............................42
SECTION 3.14. CUSIP Numbers......................................43
SECTION 3.15. Global Security....................................43
ARTICLE 4 SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 4.1. Satisfaction and Discharge
of Indenture.......................................45
SECTION 4.2. Application by Trustee of Funds
Deposited for Payment of
Debentures.........................................49
SECTION 4.3. Repayment of Moneys Held by
Paying Agent.......................................49
SECTION 4.4. Return of Moneys Held by Trustee
and Paying Agent Unclaimed for
Three Years........................................49
SECTION 4.5. Indemnity for Government
Obligations........................................50
ARTICLE 5 REMEDIES
SECTION 5.1. Events of Default..................................50
SECTION 5.2. Acceleration of Maturity;
Rescission and Annulment...........................52
SECTION 5.3. Collection of Indebtedness and
Suits for Enforcement by
Trustee............................................53
SECTION 5.4. Trustee May File Proofs of
Claim..............................................54
SECTION 5.5. Trustee May Enforce Claim Without
Possession of Debentures...........................55
SECTION 5.6. Application of Money Collected.....................55
SECTION 5.7. Limitation on Suits................................56
SECTION 5.8. Unconditional Right of Holders
to Receive Principal, Premium
and Interest.......................................57
SECTION 5.9. Restoration of Rights and
Remedies...........................................58
SECTION 5.10. Rights and Remedies Cumulative.....................58
SECTION 5.11. Delay or Omission Not Waiver.......................58
SECTION 5.12. Control by Holders.................................58
SECTION 5.13. Waiver of Past Defaults............................59
SECTION 5.14. Undertaking for Costs..............................60
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SECTION 5.15. Waiver of Usury, Stay, or
Extension Laws.....................................61
ARTICLE 6 THE TRUSTEE
SECTION 6.1. Certain Duties and
Responsibilities...................................61
SECTION 6.2. Notice of Defaults.................................62
SECTION 6.3. Certain Rights of Trustee..........................63
SECTION 6.4. Not Responsible for Recitals or
Issuance of Debentures.............................64
SECTION 6.5. May Hold Debentures................................65
SECTION 6.6. Money Held in Trust................................65
SECTION 6.7. Compensation and Reimbursement.....................65
SECTION 6.8. Disqualification; Conflicting
Interests..........................................66
SECTION 6.9. Corporate Trustee Required;
Eligibility........................................66
SECTION 6.10. Resignation and Removal;
Appointment of Successor...........................67
SECTION 6.11. Acceptance of Appointment by
Successor..........................................69
SECTION 6.12. Merger, Conversion, Consolidation
or Succession to Business..........................69
SECTION 6.13. Preferential Collection of Claims
Against Company....................................70
SECTION 6.14. Appointment of Authenticating
Agent..............................................70
ARTICLE 7 HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Names and
Addresses of Holders...............................72
SECTION 7.2. Preservation of Information;
Communications to Holders..........................72
SECTION 7.3. Reports by Trustee.................................72
SECTION 7.4. Reports by Company.................................73
ARTICLE 8 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc.,
Only on Certain Terms..............................73
SECTION 8.2. Successor Corporation
Substituted........................................75
ARTICLE 9 SUPPLEMENTAL INDENTURES
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SECTION 9.1. Supplemental Indentures Without
Consent of Holders.................................76
SECTION 9.2. Supplemental Indentures with
Consent of Holders.................................77
SECTION 9.3. Execution of Supplemental
Indentures.........................................78
SECTION 9.4. Effect of Supplemental
Indentures.........................................79
SECTION 9.5. Conformity with Trust Indenture
Act................................................79
SECTION 9.6. Reference in Debentures to
Supplemental Indentures............................79
ARTICLE 10 COVENANTS
SECTION 10.1. Payment of Principal, Premium and
Interest...........................................79
SECTION 10.2. Maintenance of Office or Agency....................79
SECTION 10.3. Money for Debenture Payments to
Be Held in Trust...................................80
SECTION 10.4. Payment of Taxes and Other
Claims.............................................82
SECTION 10.5. Statement as to Compliance.........................82
SECTION 10.6. Waiver of Certain Covenants........................82
SECTION 10.7. Additional Sums....................................82
SECTION 10.8. Additional Covenants...............................83
SECTION 10.9. Registration Rights................................84
SECTION 10.10. Payment of Expenses of the Trust...................85
ARTICLE 11 REDEMPTION OR EXCHANGE OF DEBENTURES
SECTION 11.1. Election to Redeem; Notice to
Trustee............................................85
SECTION 11.2. Selection of Debentures to Be
Redeemed...........................................86
SECTION 11.3. Notice of Redemption...............................86
SECTION 11.4. Deposit of Redemption Price........................87
SECTION 11.5. Debentures Payable on Redemption
Date...............................................88
SECTION 11.6. Debentures Redeemed in Part........................88
SECTION 11.7. Mandatory Redemption...............................89
SECTION 11.8. Optional Redemption................................89
SECTION 11.9. Exchange of Trust Securities
for Debentures.....................................90
ARTICLE 12 SUBORDINATION OF DEBENTURES
SECTION 12.1. Debentures Subordinate to Secured
Indebtedness.......................................90
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SECTION 12.2. Payment Over of Proceeds Upon
Dissolution, Etc...................................91
SECTION 12.3. Payment Blockage Upon Acceleration
of Designated Senior Indebtedness,
Etc................................................92
SECTION 12.4. No Payment When Secured
Indebtedness in Default............................93
SECTION 12.5. Payment Permitted If No Default....................94
SECTION 12.6. Subrogation to Rights of Holders
of Secured Indebtedness............................94
SECTION 12.7. Provisions Solely to Define
Relative Rights....................................95
SECTION 12.8. Trustee to Effectuate
Subordination......................................96
SECTION 12.9. No Waiver of Subordination
Provisions.........................................96
SECTION 12.10. Notice to Trustee..................................96
SECTION 12.11. Reliance on Judicial Order or
Certificate of Liquidating
Agent..............................................96
SECTION 12.12. Trustee Not Fiduciary for Holders
of Secured Indebtedness............................97
SECTION 12.13. Rights of Trustee as Holder of
Secured Indebtedness; Preservation
of Trustee's Rights................................97
SECTION 12.14. Article Applicable to Paying
Agents.............................................97
SECTION 12.15. Certain Conversions or Exchanges
Deemed Payment.....................................97
ARTICLE 13 CONVERSION OF DEBENTURES
SECTION 13.1. Conversion Rights..................................98
SECTION 13.2. Conversion Procedures..............................99
SECTION 13.3. Conversion Price Adjustments......................102
SECTION 13.4. Fundamental Change................................108
SECTION 13.5. Notice of Adjustments of Conversion
Price.............................................110
SECTION 13.6. Prior Notice of Certain Events....................110
SECTION 13.7. Dividend or Interest
Reinvestment Plans................................111
SECTION 13.8. Certain Additional Rights.........................112
SECTION 13.9. Restrictions on Common Stock
Issuable Upon Conversion..........................113
SECTION 13.10. Trustee Not Responsible for
Determining Conversion Price
or Adjustments....................................113
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CONVERTIBLE SUBORDINATED INDENTURE, dated as of October 20, 1997 between
BIG FLOWER HOLDINGS, INC., a Delaware corporation (hereinafter called the
"Company") hav ing its principal office at ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, and THE BANK OF NEW YORK, a New York banking corporation, as Trustee
(hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its 6% Convertible Subordinated
Debentures (hereinafter called the "Debentures") of substantially the tenor
hereinafter provided which evidence loans made to the Company of the proceeds
from the issuance by Big Flower Trust I, a Delaware business trust (the
"Trust"), of preferred trust interests in the Trust (the "Preferred Securities")
and common interests in the Trust (the "Common Securities"), and to provide the
terms and conditions upon which the Debentures are to be authenticated, issued
and delivered.
All things necessary to make the Debentures, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with their and its terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Debentures by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Debentures, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles which are generally accepted at the date or time of
such computation; and
(d) the words "herein" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.4.
"Additional Interest" means the interest, if any, that shall accrue on any
interest on the Debentures that is in arrears for more than one interest payment
period or not paid during any Extension Period, which in either case shall
accrue at the stated rate per annum specified or determined as specified in such
Debenture and compounded quarterly.
"Additional Sums" has the meaning specified in Section 10.7.
"Additional Taxes" means the sum of any additional taxes, duties and other
governmental charges to which the Trust has become subject from time to time as
a result of a Tax Event.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Company shall not be deemed to include the Trust to which Debentures have been
issued. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Applicable Price" means (i) in the case of a Non-Stock Fundamental Change
in which the holders of the Common Stock receive only cash, the amount of cash
received by the holder
2
of one share of Common Stock and (ii) in the event of any other Non-Stock
Fundamental Change or any Common Stock Fundamental Change, the average of the
Closing Prices for the Common Stock during the ten trading days prior to and
including the record date for the determination of the holders of Common Stock
entitled to receive such securities, cash, or other property in connection with
such Non-Stock Fundamental Change or Common Stock Fundamental Change or, if
there is no such record date, the date upon which the holders of the Common
Stock shall have the right to receive such securities, cash, or other property,
in each case as adjusted in good faith by the Company to appropriately reflect
any of the events referred to in Section 13.4.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Debentures.
"Bank Credit Agreement" means the Credit Agreement dated as of June 12,
1997, among Big Flower Press Holdings, Inc., the lenders party thereto in their
capacities as lenders thereunder, Credit Suisse First Boston, as documentation
agent, and Bankers Trust Company, as administrative agent, together with the
related documents thereto (including, without limitation, any guarantee
agreements and security documents), in each case as such agreements may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including,
without limitation, increasing the amount of available borrowings thereunder or
adding Subsidiaries of the Company as additional borrowers or guarantors
thereunder) all or any portion of the indebtedness under such agreement or any
successor or replacement agreement and whether by the same or any other agent,
lender or group of lenders.
"Board of Directors" means either the board of directors of the Company or
any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of the resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors, or such committee of the Board of Directors or officers
of the Company to which authority to act on behalf of the Board of Directors has
been delegated, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
3
"Business Day" means any day other than a Saturday or Sunday or a day on
which banking institutions in the City of New York are authorized or required by
law or executive order to remain closed or a day on which the Corporate Trust
Office of the Trustee, or the principal office of the Property Trustee under the
Trust Agreement, is closed for business.
"Closing Price" means on any day the reported last sale price on such day
or, in case no sale takes place on such day, the average of the reported closing
bid and asked prices in each case on the NYSE Consolidated Transactions Tape or,
if the stock is not listed or admitted to trading on such Exchange, on the
principal national securities exchange on which such stock is listed or admitted
to trading or, if not listed or admitted to trading on any national securities
exchange, the average of the closing bid and asked prices as furnished by any
NYSE member firm, selected by the Trustee for that purpose.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Common Securities" has the meaning specified in the first recital of this
Indenture.
"Common Stock" means common stock, par value $0.01, of the Company.
"Common Stock Fundamental Change" means any Fundamental Change in which
more than 50% of the value (as determined in good faith by the Board of
Directors) of the consideration received by holders of Common Stock consists of
common stock that for each of the ten consecutive trading days prior to the
record date for the determination of the holders of Common Stock entitled to
receive such common stock or, if there is no such record date, the date on which
the holders of the Common Stock shall have the right to receive such Common
Stock, has been admitted for listing or admitted for listing subject to notice
of issuance on a national securities exchange or quoted on the Nasdaq National
Market; provided, however, that a Fundamental Change shall not be a Common Stock
Fundamental Change unless either (i) the Company continues to exist after the
occurrence of such Fundamental Change and the outstanding Preferred Securities
continue to exist as outstanding Preferred Securities or
4
(ii) not later than the occurrence of such Fundamental Change, the outstanding
Preferred Securities are converted into or exchanged for shares of convertible
preferred stock of an entity succeeding to the business of the Company or a
subsidiary thereof, which convertible preferred stock has powers, preferences,
and relative, participating, optional, or other rights, and qualifications,
limitations, and restrictions, substantially similar to those of the Preferred
Securities.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" and "Company Order" mean, respectively, the written
request or order signed in the name of the Company by its Chairman of the Board,
its Vice Chairman, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Controller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Conversion Agent" has the meaning specified in Section 13.2.
"Conversion Date" has the meaning specified in Section 13.2.
"Conversion Price" has the meaning specified in Section 13.1.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered
which office at the date hereof is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 21 West,
New York, New York 10286, Attention: Corporate Trust Administration.
"Current Market Price" means for any day the last reported sale price,
regular way, on such day of Common Stock, or, if no sale takes place on such
day, the average of the reported closing bid and asked prices on such day,
regular way, in either case as reported on the NYSE Composite Transactions Tape,
or, if the Common Stock is not listed or admitted to trading on the NYSE on such
day, on the principal national securities exchange on which the Common Stock is
listed or admitted to trading, if the Common Stock is listed on a national
securities exchange, or the Nasdaq National Market, or, if the Common Stock is
not
5
quoted or admitted to trading on such quotation system, on the principal
quotation system on which the Common Stock may be listed or admitted to trading
or quoted, or, if not listed or admitted to trading or quoted on any national
securities exchange or quotation system, the average of the closing bid and
asked prices of the Common Stock in the over-the-counter market on the day in
question as reported by the National Quotation Bureau Incorporated, or a similar
generally accepted reporting service, or, if not so available in such manner, as
furnished by any NYSE member firm selected from time to time by the Board of
Directors for that purpose or, if not so available in such manner, as otherwise
determined in good faith by the Board of Directors.
"Debentures" or "Debenture" means any debt securities or debt security, as
the case may be, authenticated and delivered under this Indenture.
"Debt" means, with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person, and (vi) every
obligation of the type referred to in clauses (i) through (v) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has guaranteed or is responsible for or liable, directly or indirectly,
as obligor or otherwise.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to the Debentures issuable or issued in
whole or in part in the form of one or more Global Debentures, the Person
designated as Depositary by the Company (or any successor thereto).
"Designated Senior Indebtedness" means (x) all Secured Indebtedness of the
Company under, or as a result of its guarantee of, Indebtedness pursuant to the
Bank Credit
6
Agreement and (y) at any time when no Indebtedness described in preceding clause
(x) is outstanding, any issue of Secured Indebtedness with an aggregate
principal amount in excess of $15.0 million that is designated as "Designated
Senior Indebtedness" by written notice from the Company to the Trustee.
"Dollar" means the currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
"Events of Default" has the meaning specified in Article 5.
"Expiration Time" has the meaning specified in Section 13.3(e).
"Extension Period" has the meaning specified in Section 3.11.
"Fundamental Change" means the occurrence of any Transaction or event in
connection with a plan pursuant to which all or substantially all of the Common
Stock shall be exchanged for, converted into, acquired for, or constitute solely
the right to receive securities, cash, or other property (whether by means of an
exchange offer, liquida tion, tender offer, consolidation, merger, combination,
reclassification, recapitalization, or otherwise), provided, that, in the case
of a plan involving more than one such Transaction or event, for purposes of
adjustment of the conversion price, such Fundamental Change shall be deemed to
have occurred when substantially all of the Common Stock shall be exchanged for,
converted into, or acquired for or constitute solely the right to receive
securities, cash, or other property, but the adjustment shall be based upon
consideration that a holder of Common Stock received in such Transaction or
event as a result of which more than 50% of the Common Stock shall have been
exchanged for, converted into, or acquired for or constitute solely the right to
receive securities, cash, or other property.
"Global Debenture" means a Debenture in the form prescribed in Section 2.4
evidencing all or part of the Debentures, issued to the Depositary or its
nominee, and registered in the name of such Depositary or its nominee.
"Guarantee" means the guarantee by the Company of distributions on the
Preferred Securities of the Trust to the extent provided in the Guarantee
Agreement, substan tially in the form attached hereto as Annex C, as amended
from time to time.
7
"Holder" means a Person in whose name a Debenture is registered in the
Securities Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means as to the Debentures the Stated Maturity of
an installment of interest on such Debentures.
"Interest Rate" means the rate of interest specified or determined as
specified in each Debenture as being the rate of interest payable on such
Debenture.
"Investment Company Event" means, in respect of the Trust, the receipt by
the Property Trustee on behalf of the Trust of an Opinion of Counsel, rendered
by a law firm having a recognized national tax and securities practice, to the
effect that, as a result of the occurrence of a change in law or regulation or a
change in interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority (a "Change in 1940 Act
Law"), that there is more than an insubstantial risk that the Trust is or will
be considered an "investment company" that is required to be registered under
the 1940 Act, which Change in 1940 Act Law becomes effective on or after the
date of original issuance of the Preferred Securities of the Trust.
"Liquidated Damages" has the meaning specified in the form of reverse of
Debenture set forth in Section 2.3.
"Maturity" when used with respect to the Debentures, means the date on
which the principal of the Debentures become due and payable as herein provided,
whether at the Stated Maturity or by declaration of acceleration, call or
redemption or otherwise.
"1940 Act" means the Investment Company Act of 1940, as amended.
"Non Book-Entry Preferred Securities" has the meaning specified in Section
3.15.
"Non-Stock Fundamental Change" means any Fundamental Change other than a
Common Stock Fundamental Change.
"Notice of Conversion" means the notice given by a holder of Preferred
Securities to the Conversion Agent
8
directing the Conversion Agent to exchange such Preferred Securities for
Debentures and to convert such Debentures into Common Stock on behalf of such
holder.
"Notice of Default" has the meaning specified in Section 5.1(c).
"NYSE" means the New York Stock Exchange.
"Officers' Certificate" means a certificate signed by (i) the Chairman,
Chief Executive Officer, President or a Vice President, and by (ii) the
Treasurer, an Assistant Treasurer, the Controller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, the Trust, or the Trustee, but who may be an employee
thereof, and who shall be reasonably acceptable to the Trustee.
"Outstanding" means, as of the date of determination, all Debentures
theretofore authenticated and delivered under this Indenture, except:
(i) Debentures theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Debentures for the payment of which money in the necessary
amount has been theretofore irrevocably deposited with the Trustee or any
Paying Agent in trust for the Holders of such Debentures; and
(iii) Debentures in substitution for or in lieu of which other
Debentures have been authenticated and delivered or which have been paid
pursuant to Sec tion 3.6, or which have been converted into Common Stock
pursuant to Section 13.1, unless proof satisfactory to the Trustee is
presented that any Debentures are held by Holders in whose hands such
Debentures are valid, binding and legal obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Debentures have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debentures owned
by the Company or any other obligor upon the Debentures or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Debentures which
9
the Trustee actually knows to be so owned shall be so disregarded. Debentures so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Debentures and that the pledgee is not the
Company or any other obligor upon the Debentures or any Affiliate of the Company
or such other obligor. Upon request of the Trustee, the Company shall furnish to
the Trustee promptly an Officers' Certificate listing and identifying all
Debentures, if any, known by the Company to be owned or held by or for the
account of the Company, or any other obligor on the Debentures or any Affiliate
of the Company or such obligor, and, subject to the provisions of Section 6.1,
the Trustee shall be entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Debentures not
listed therein are Outstanding for the purpose of any such determination.
"Paying Agent" means the Trustee or any Person authorized by the Company
to pay the principal of or interest on any Debentures on behalf of the Company.
"Payment Blockage Period" has the meaning specified in Section 12.3.
"Person" means any individual, corporation, partner ship, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Debenture" of any particular Debenture means every previous
Debenture evidencing all or a portion of the same debt as that evidenced by such
particular Debenture, and, for the purposes of this definition, any Debenture
authenticated and delivered under Section 3.6 in lieu of a lost, destroyed or
stolen Debenture shall be deemed to evidence the same debt as the lost,
destroyed or stolen Debenture.
"Preferred Securities" has the meaning specified in the first recital of
this Indenture.
"Proceeding" has the meaning specified in Section 12.2.
"Property Trustee" means, in respect of the Trust, the commercial bank or
trust company identified as the "Property Trustee" in the Trust Agreement,
solely in its capacity as Property Trustee of the Trust under the Trust
Agreement and not in its individual capacity, or its successor in interest
10
in such capacity, or any successor property trustee appointed as therein
provided.
"Purchase Agreement" means the Purchase Agreement dated October 14, 1997
by and among the Trust, the Company, Big Flower Press Holdings, Inc. and the
Purchasers.
"Purchased Shares" has the meaning specified in Section 13.4(e).
"Purchasers" with respect to the Preferred Securities, means ▇▇▇▇▇▇▇,
Sachs & Co., Bear ▇▇▇▇▇▇▇ & Co. Inc., BT Alex. ▇▇▇▇▇ Incorporated, Credit Suisse
First Boston Corporation and ▇.▇. ▇▇▇▇▇▇ Securities Inc.
"Purchaser Stock Price" means, with respect to any Common Stock
Fundamental Change the average of the Closing Prices for the common stock
received in such Common Stock Fundamental Change for the ten consecutive trading
days prior to and including the record date for the determination of the holders
of Common Stock entitled to receive such common stock or if there is no such
record date, the date on which the holders of Common Stock shall have the right
to receive such common stock, as adjusted in good faith by the Company to
appropriately reflect any of the events referred to in Section 13.4.
"Redemption Date", when used with respect to any Debenture to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" has the meaning specified in Section 11.3.
"Reference Date" has the meaning specified in Section 13.4(c).
"Reference Market Price" initially means $15.375 (which is an amount equal
to 66 2/3% of the reported last sale price for the Common Stock on the NYSE
Consolidated Transactions Tape on October 14, 1997), and in the event of any
adjustment of the Conversion Price other than as a result of a Non-Stock
Fundamental Change, the Reference Market Price shall also be adjusted so that
the ratio of the Reference Market Price to the Conversion Price after giving
effect to any such adjustment shall always be the same as the ratio of the
initial Reference Market Price to the initial Conversion Price of the
Debentures.
11
"Regular Record Date" means for the interest payable on any Interest
Payment Date the Business Day next preceding such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee means any
officer of the Trustee assigned by the Trustee from time to time to administer
its corporate trust matters, or any other officer to whom such matters may be
referred.
"Restricted Preferred Securities" means all Preferred Securities required
to bear any restricted securities legend pursuant to the Trust Agreement.
"Restricted Securities" means all the Debentures required pursuant to
Section 2.6 to bear a Restricted Securities Legend.
"Restricted Securities Legend" has the meaning specified in Section 2.6.
"Rights" has the meaning specified in Section 13.2(g).
"Secured Indebtedness" means the principal (including without limitation
all unpaid drawings with respect to letters of credit) of and premium, if any,
and interest (including interest accruing on or after the filing of any petition
in bankruptcy relating to the Company at the relevant contractual rate whether
or not such claim for post-petition interest is allowed in such proceeding) on,
and all other amounts owing with respect to, the following, whether outstanding
on the date of execution of this Indenture or thereafter incurred, created or
assumed, to the extent (but only to the extent) the same is secured by a lien,
charge, mortgage or other encumbrance on property or assets of the Company or
its subsidiaries: (i) indebtedness of the Company for money borrowed (including
purchase money obligations, except indebtedness to trade creditors) or evidenced
by debentures (other than the Debentures), notes, bankers' acceptances or other
corporate debentures or similar instruments; (ii) all capital lease obligations
of the Company; (iii) all obligations with respect to letters of credit; (iv)
all obligations with respect to currency hedging agreements, interest rate
protection agreements and other similar agreements; (v) all indebtedness of
others of the type referred to in the preceding clauses (i) through (iv) assumed
by or guaranteed in any manner by the Company or in effect guaranteed by the
Company; and (vi) renewals, extensions or refundings of any of the indebtedness
referred to in the preceding clauses (i), (ii), (iii), (iv) and (v) and in this
clause (vi). For purposes of the foregoing
12
definition, all indebtedness secured by a lien, charge, mortgage or other
encumbrance on property or assets of the Company or its Subsidiaries shall be
deemed to be secured for purposes of said definition, notwithstanding any
determination that the amount of indebtedness so secured exceeds the value of
the assets serving as security therefor and notwithstanding any determination in
any bankruptcy or other proceeding that a portion of such indebtedness shall be
treated as unsecured because of any insufficiency in the value of the collateral
securing such indebtedness. Without limiting the foregoing, in any event all
obligations of the Company with respect to (including its guaranties of
obligations under) the Bank Credit Agreement shall constitute Secured
Indebtedness.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.5.
"Shareholders Rights Plan" means the Rights Agreement dated as of October
17, 1997 by and between Big Flower Holdings, Inc. and The Bank of New York as
Rights Agent, as amended from time to time.
"Special Event" means a Tax Event or an Investment Company Event.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to the Deben tures or any
installment of principal thereof or interest thereon means the date specified in
the Debentures as the fixed date on which the principal of the Debentures or
such installment of interest is due and payable.
"Subsidiary" means any corporation of which at the time of determination
the Company and/or one or more Subsidiaries owns or controls directly or
indirectly more than 50% of the outstanding shares of voting stock. For purposes
of this definition, "voting stock" means stock which has voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
"Tax Event" means the receipt by the Property Trustee on behalf of the
Trust of an Opinion of Counsel, rendered by a law firm having a recognized
national tax and securities practice (which opinion shall not have been
rescinded by such law firm), to the effect that, as a result of any amendment
to, or change (including any announced prospective
13
change) in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein affecting taxation,
or as a result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date of
issuance of the Preferred Securities under the Trust Agreement, there is more
than an insubstantial risk in each case after the date hereof that (i) the Trust
is, or will be within 90 days of the date thereof, subject to United States
Federal income tax with respect to income received or accrued on the Debentures,
(ii) interest payable by the Company on the Debentures is not, or within 90 days
of the date thereof will not be, deductible by the Company, in whole or in part,
for United States Federal income tax purposes or (iii) the Trust is, or will be
within 90 days of the date thereof, subject to more than a de minimis amount of
other taxes, duties or other governmental charges.
"Transaction" has the meaning specified in Sec tion 13.5(a).
"Trust" has the meaning specified in the first recital of this Indenture.
"Trust Agreement" means the Trust Agreement substan tially in the form
attached hereto as Annex A, as amended by the Amended and Restated Trust
Agreement substantially in the form attached hereto as Annex B, as amended from
time to time.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder if at any time there is
more than one such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
▇▇.▇▇. 77aaa-77bbb), as amended and as in effect on the date as of this
Indenture.
"Trust Securities" means the Common Securities and Preferred Securities.
"Vice President" when used with respect to the Company, means any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president."
14
SECTION 1.2. Compliance Certificate and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent (including covenants,
compliance with which constitutes a condition precedent), if any, provided for
in this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent (including covenants compliance with which constitutes a
condition precedent), if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than the certificates provided
pursuant to Section 10.5) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3. Forms of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
15
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given to or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
is or are delivered to the Trustee, and, where it is hereby expressly required,
to the Company. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1) conclusive in favor of
the Trustee and the Company and any agent of the Trustee or the Company, if made
in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged
16
to him the execution thereof. Where such execution is by a Person acting in
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.
(d) The ownership of Debentures shall be proved by the Securities
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Debenture shall bind every future
Holder of the same Debenture and the Holder of every Debenture issued upon the
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Debenture.
(f) The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to take any action
under this Indenture by vote or consent. Except as otherwise provided herein,
such record date shall be the later of 30 days prior to the first solicitation
of such consent or vote or the date of the most recent list of Holders furnished
to the Trustee pursuant to Section 7.1 prior to such solicitation. If a record
date is fixed, those persons who were Holders at such record date (or their duly
designated proxies), and only those persons, shall be entitled to take such
action by vote or consent or to revoke any vote or consent previously given,
whether or not such persons continue to be Holders after such record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to
give or take any such action with regard to any particular Debenture may do so
with regard to all or any part of the principal amount of such Debenture or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
SECTION 1.5. Notices, Etc. to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided
17
or permitted by this Indenture to be made upon, given or furnished to, or filed
with
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose (except as otherwise provided in Section 5.1 hereof)
hereunder if in writing and mailed, first class, postage prepaid, to the
Company addressed to it at the address of its principal office specified
in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 1.6. Notice to Holders; Waiver. Where this Indenture provides for
notice to Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first class
postage prepaid, to each Holder affected by such event, at the address of such
Holder as it appears in the Securities Register on the date such notice is
mailed, which shall be not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.7. Conflict with Trust Indenture Act. If any provision of this
Indenture limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under such act to be a part of and govern this Indenture,
the latter provision shall control. If any provision of this Indenture modifies
or excludes any
18
provision of the Trust Indenture Act that may be so modified or excluded, the
former provision shall be deemed to apply.
SECTION 1.8. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.9. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.10. Separability Clause. In case any provision in this Indenture
or in the Debentures shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or in the
Debentures, express or implied, shall give to any Person, other than the parties
thereto, any Paying Agent and their successors and assigns and the Holders of
the Debentures, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 1.12. Governing Law. This Indenture and the Debentures shall be
governed by and construed in accordance with the laws of the State of New York
without regard to its principles of conflicts of laws.
SECTION 1.13. Non-Business Days. In any case where any Interest Payment
Date, Redemption Date, or Stated Maturity of any Debenture shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or the
Debentures) payment of interest or principal payable on such date will be made
on the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) with the same force and effect as if
made on the Interest Payment Date or Redemption Date or at the Stated Maturity.
ARTICLE 2
DEBENTURE FORM
SECTION 2.1. Forms Generally. The Debentures and the Trustee's certificate
of authentication shall be in substantially the forms set forth in this Article
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be
19
required to comply with applicable tax laws or the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Debentures, as evidenced by their execution of the Debentures.
The definitive Debentures shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods, if required by any
securities exchange on which the Debentures may be listed, on a steel engraved
border or steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Debentures may be
listed, all as determined by the officers executing such Debentures, as
evidenced by their execution of such Debentures.
SECTION 2.2. Form of Face of Debenture.
6% Convertible Subordinated Debenture due October 15, 2027
No. $
Big Flower Holdings, Inc., a corporation organized and existing under the
laws of Delaware (hereinafter called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ___________________________________________
__, or registered assigns, the principal sum of ________________________________
____________________________________________________ on October 15, 2027 and to
pay interest on said principal sum from October 20, 1997 or from the most recent
interest payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, at the rate of 6% per annum
together with subject to deferral as set forth herein, on January 15, April 15,
July 15 and October 15 of each year, commencing January 15, 1998 until the
principal hereof is paid or duly provided for or made available for payment.
Reference is hereby made to the further provisions of this Debenture set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Debenture
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
20
IN WITNESS WHEREOF, the Company has caused this instru ment to be duly
executed.
Dated:
By:
---------------------------------
SECTION 2.3. Form of Reverse of Debenture. This Debenture is one of a duly
authorized issue of Debentures of the Company (herein called the "Debentures")
limited to the aggregate principal amount of $118,600,000, issued under an
Indenture, dated as of October 20, 1997 (herein called the "Indenture"), between
the Company and The Bank of New York, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which the
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Debentures, and of
the terms upon which the Debentures are, and are to be, authenticated and
delivered. All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. For periods less than a full
month, interest shall be computed on the actual number of elapsed days over 360
days. In the event that any date on which interest is payable on this Debenture
is not a Business Day, then a payment of the interest on such date will be made
on the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay) with the same force and effect as if
made on the date the payment was originally payable. A "Business Day" shall mean
any day other than a Saturday or a Sunday or a day on which banking institutions
in the City of New York are authorized or required by law or executive order to
remain closed or a day on which the Corporate Trust Office of the Trustee, or
the principal office of the Property Trustee under the Trust Agreement is closed
for business. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Debenture (or one or more Predecessor
Debentures, as defined in the Indenture) is registered at the close of business
on the Regular Record Date, for such interest installment which shall be the
date which is the Business Day next preceding such Interest Pay ment Date. Any
such interest installment not so punctually
21
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Debenture (or one or more Predecessor Debentures) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Debentures
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debentures may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture.
The Company shall have the right at any time during the term of this
Debenture, from time to time, to extend the interest payment period of such
Debenture for up to 20 consecutive quarters with respect to each deferral period
(each such deferral period an "Extension Period"), during which periods the
Company shall have the right not to make payments of interest on any Interest
Payment Date, and at the end of which the Company shall pay all interest then
accrued and unpaid (together with Additional Interest and Liquidated Damages, if
any, thereon to the extent permitted by applicable law); provided that during
any such Extension Period, the Company will not, and will not permit any Sub
sidiary to (a) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any shares of
the Company's capital stock or (b) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees of indebtedness for money borrowed) of the Company that
rank pari passu with or junior to the Debentures (other than (i) any dividend,
redemption, liquidation, interest, principal or guarantee payment by the Company
where the payment is made by way of securities (including capital stock) that
rank pari passu with or junior to the securities on which such dividend,
redemption, interest, principal or guarantee payment is being made, (ii)
redemptions or purchases of any rights pursuant to the Company's Shareholders
Rights Plan, or any successor to such Shareholders Rights Plan, and the
declaration of a dividend of such rights or the issuance of preferred stock
under such plans in the future, (iii) payments under the Guarantee, (iv)
purchases of Common Stock related to the issuance of Common Stock under any of
the Company's benefit plans for its directors, officers or employees, (v) as a
result of a reclassification of the Company's capital stock or the ex change or
conversion of one series or class of the Company's capital stock for another
series or class of the Company's capital stock and (vi) the purchase of
fractional interests
22
in shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged).
Prior to the termination of any such Extension Period, the Company may further
extend the interest payment period, provided that no Extension Period shall
exceed 20 consecutive quarters or extend beyond the Stated Maturity of this
Debenture. Upon the termination of any such Extension Period and upon the
payment of all accrued and unpaid interest and any Additional Interest then due,
the Company may elect to begin a new Extension Period, subject to the above
requirements. No interest shall be due and payable during an Extension Period
except at the end thereof. The Company shall give the Trustee, the Property
Trustee and the Administrative Trustees (as defined in the Trust Agreement)
notice of its selection of an Extension Period at least one Business Day prior
to the earlier of (i) the record date for the date the distributions on the
Preferred Securities (or if no Preferred Securities are outstanding, for the
date interest on the Debentures) would have been payable except for the election
to begin such Extension Period and (ii) the date the Property Trustee (or if no
Preferred Securities are outstanding, the Debenture Trustee) is required to give
notice to the NYSE or other applicable self-regulatory organizations or to
holders of such Preferred Securities (or, if no Preferred Securities are
outstanding, to the holders of such Debentures) of the record date.
Payment of the principal of (and premium, if any) and interest on this
Debenture will be made [Insert, if a global security is issued - to the
Depositary Trust Company or its nominee] [Insert if securities in definitive
form are issued - at the office or agency of the Paying Agent maintained for
that purpose in the United States], in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts provided, however, that at the option of the Company
payment of interest may be made (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Securities Register or (ii)
by wire transfer in immediately available funds at such place and to such
account as may be designated by the Person entitled thereto as specified in the
Securities Register.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and subject in right of payments to the prior payment
in full of all Secured Indebtedness (as defined in the Indenture), and this
Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Debenture, by accepting the same, (a) agrees to and
shall be
23
bound by such provisions, (b) authorizes and directs the Trustee on his behalf
to take such actions as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof, waives
all notice of the acceptance of the subordination provisions contained herein
and in the Indenture by each holder of Secured Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
At any time on or after October 15, 2000, the Company may, at its option,
subject to the terms and conditions of Article 11 of the Indenture, redeem this
Debenture in whole at any time or in part from time to time, at the Redemption
Prices set forth in Section 11.8 of the Indenture.
In the event of redemption of this Debenture in part only, a new Debenture
or Debentures for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.
If a Special Event shall occur and be continuing, this Debenture shall be
exchangeable for Preferred Securities in accordance with Section 11.9 of the
Indenture or, in certain circumstances, redeemable by the Company in accordance
with Section 11.8 of the Indenture.
Subject to the terms and conditions set forth in Article 13 of the
Indenture, this Debenture is convertible, at the option of the Holder hereof,
into shares of Common Stock.
If an Event of Default shall occur and be continuing, the principal of the
Debentures may be declared due and payable in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions for satisfaction, discharge and
defeasance of the entire indebtedness of this Debenture upon compliance by the
Company with certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Debentures to be affected under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in principal amount of the Debentures. The Indenture also
contains provisions permitting Holders of specified percentages in principal
24
amount of the Debentures at the time Outstanding, on behalf of the Holders of
all Debentures, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver shall be conclusive and binding upon
the Holder of this Debenture and upon all future Holders of this Debenture and
of any Debenture issued upon the registration of transfer hereof or in exchange
therefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Debenture.
As provided in and subject to the provisions of the Indenture, if an Event
of Default occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Debentures may declare the principal amount of all the Debentures to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), provided that, if upon an Event of Default, the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Debentures fail to declare the principal of all the Debentures to be immediately
due and payable, the holders of at least 25% in aggregate liquida tion amount of
the Preferred Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee; and upon any such declaration such
princi pal amount (or specified amount) of and the accrued interest (including
any Additional Interest) on all the Debentures shall become immediately due and
payable, provided that the payment of principal and interest (including any
Additional Interest) on such Debentures shall remain subordinated to the extent
provided in Article 12 of the Indenture.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and uncon ditional, to pay the principal of (and premium, if any) and
interest on this Debenture at the times, place and rate, and in the coin or
currency, herein prescribed.
The holders of the Preferred Securities, the Deben tures, the Guarantee
and the shares of Common Stock of the Company issuable upon conversion of the
Securities (collectively, the "Registrable Securities") are entitled to the
benefits of a Registration Rights Agreement, dated as of October 20, 1997, among
Big Flower Trust I, the Company and the Purchasers (the "Registration Rights
Agreement"). Pursuant to the Registration Rights Agreement, the Company has
agreed for the benefit of the holders of Registrable Securities that (i) it
will, at its cost, within 90 days after the date of issuance of the Registrable
Securities,
25
file a shelf registration statement (the "Shelf Registration Statement") with
the Commission with respect to the resales of the Registrable Securities, (ii)
it will use its best efforts to cause such Shelf Registration Statement to be
declared effective by the Commission as promptly as practicable and in no event
later than 180 days after the date of issuance of the Registrable Securities and
(iii) the Depositor (as defined in the Trust Agreement) will use its best
efforts to maintain such Shelf Registration Statement continuously effective
under the Securities Act until the third anniversary of the date of issuance of
the Registrable Securities or such earlier date as is provided in the
Registration Rights Agreement (the "Effectiveness Period".) The Company will be
permitted to suspend the use of the prospectus (which is a part of the Shelf
Registration Statement) in connection with sales of Registrable Securi ties by
holders during certain periods of time under certain circumstances relating to
pending corporate developments relating to the Company and public filings with
the Commission and similar events.
If (i) on or prior to 90 days following the date of original issuance of
the Registrable Securities, a Shelf Registration Statement has not been filed
with the Commis sion, or (ii) on or prior to the 180th day following the issuing
of the Registrable Securities, such Shelf Registra tion Statement is not
declared effective (each such event a "Registration Default"), additional
interest ("Liquidated Damages") will accrue on the Debentures and, accordingly,
additional distributions will accrue on the Preferred Securities, from and
including the day following such Regis tration Default until such time as such
Shelf Registration Statement is filed or such Shelf Registration Statement is
declared effective, as the case may be. Liquidated Damages will be paid
quarterly in arrears (subject to the Company's ability to defer payment of
Liquidated Damages during any Extension Period), with the first quarterly
payment due on the first Interest Payment Date following the date on which such
Liquidated Damages begin to accrue, and will accrue at a rate per annum equal to
an additional 0.25% of the principal amount, to and including the 90th day
following such Registration Default and 0.50% thereof from and after the 91st
day following such Registration Default. In the event that during the
Effectiveness Period the Shelf Regis tration Statement ceases to be effective,
or the Company suspends the use of the prospectus which is a part thereof, for
more than 90 days, whether or not consecutive, during any 12-month period then
the interest rate borne by the Debentures and the distribution rate borne by the
Preferred Securities will each increase by an additional 0.50% per annum from
the 91st day of the applicable 12-month period
26
such Shelf Registration Statement ceases to be effective or the Company suspends
the use of the prospectus which is a part thereof, as the case may be, until the
earlier of such time as (i) the Shelf Registration Statement again becomes
effective, (ii) the use of the related prospectuses ceases to be suspended or
(iii) the Effectiveness Period expires.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Debenture is registrable in the Securities
Register, upon surrender of this Debenture for registration of transfer at the
office or agency of the Company maintained under Section 10.2 of the Indenture
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Debentures, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees. No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to due presentment of this Debenture for regis tration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Debenture is registered as the owner hereof for
all purposes, whether or not this Debenture be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
The Debentures are issuable only in registered form without coupons in
denominations of $50 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Debentures are
exchangeable for a like aggregate principal amount of Debentures of a different
authorized denomination, as requested by the Holder surrendering the same.
The Company and, by its acceptance of this Debenture or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Debenture agree that for United States Federal, state and
local tax purposes it is intended that this Debenture constitute indebtedness.
THE INDENTURE AND THIS DEBENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAW PRINCIPLES THEREOF.
27
28
ASSIGNMENT FORM
To assign this Debenture, fill in the form below:
(I) or (we) assign and transfer this Security to
________________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________ agent to
transfer this Debenture on the books of the Company. The agent may substitute
another to act for him.
Your Signature: ___________________________________________
(Sign exactly as your name appears on
the other side of this Security)
Date: _____________
Signature Guarantee:* __________________________________________
[Include the following if the Debenture bears a Restricted
Securities Legend --
In connection with any transfer of any of the Securities evidenced by this
certificate, the undersigned confirms that such Debentures are being:
CHECK ONE BOX BELOW
(1) |_| exchanged for the undersigned's own account
without transfer; or
----------
* Signature must be guaranteed by an institution which is a member of one of
the following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MSP); (iii) The Stock Exchange Medallion Program
(SEMP); or (iv) in such other guarantee programs acceptable to the
Trustee.
29
(2) |_| transferred pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(3) |_| transferred pursuant to and in compliance with Regulation
S under the Securities Act of 1933; or
(4) |_| transferred pursuant to another available exemption from
the registration requirements of the Securities Act of 1933;
or
(5) |_| transferred pursuant to an effective Registration
Statement under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Debentures evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided, however, that if box (3) or (4) is
checked, the Trustee may require, prior to registering any such transfer of the
Securities, such legal opinions, certifications and other information as the
Company has reasonably requested in writing and directed the Trustee to require
confirmation that such transfer is being made pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the Securities
Act of 1933, such as the exemption provided by Rule 144 under such Act;
provided, further, that after the date that a shelf Registration Statement under
the Securities Act of 1933 has been filed and so long as such shelf Registration
Statement continues to be effective, the Trustee may only permit transfers for
which box (4) or (5) has been checked.
----------------------------------
Signature
Signature Guarantee:*
____________________________________ __________________________________]
Signature must be guaranteed Signature
----------
* Signature must be guaranteed by an institution which is a member of one of
the following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MSP); (iii) The Stock Exchange Medallion Program
(SEMP); or (iv) in such other guarantee programs acceptable to the
Trustee.
30
________________________________________________________________________________
[TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Debenture for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Dated: __________________________ _____________________________________
NOTICE: To be executed by
an executive
officer]
31
NOTICE OF CONVERSION
To: Big Flower Holdings, Inc.
The undersigned owner of this Debenture hereby irrevocably exercises
the option to convert this Debenture, or the portion below designated, into
Common Stock of BIG FLOWER HOLDINGS, INC. in accordance with the terms of the
Indenture referred to in this Debenture, and directs that the shares issuable
and deliverable upon conversion, together with any check in payment for
fractional shares, be issued in the name of and delivered to the undersigned,
unless a different name has been indicated in the assignment below. If shares
are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto.
Any Holder, upon the exercise of its conversion rights in accordance
with the terms of the Indenture and the Debenture, agrees to be bound by the
terms of the Registration Rights Agreement relating to the Common Stock issuable
upon conversion of the Debenture.
Date: ____________, ____
in whole __
Portions of Debenture to be
in part __ converted ($50 or integral
multiples thereof):
$_________________________
__________________________________________
Signature (for conversion only)
Please Print or Typewrite Name
and Address, Including Zip
Code, and Social Security or
Other Identifying Number
__________________________________________
__________________________________________
__________________________________________
Signature Guarantee:* ________________________
----------
* Signature must be guaranteed by an institution which is a member of one of
the following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock
(continued...)
32
SECTION 2.4. Additional Provisions Required in Global Debenture. Any
Global Debenture issued hereunder shall, in addition to the provisions contained
in Sections 2.2 and 2.3 bear a legend in substantially the following form:
"This Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture and may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary."
SECTION 2.5. Form of Trustee's Certificate of Authentication. The form of
Trustee's Certificate of Authentication shall be as follows:**
"This is one of the Debentures designated therein referred to in the within
mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
Authorized Signatory
Dated: "
SECTION 2.6. Initial Issuance to Property Trustee. The Debentures
initially issued to the Property Trustee of the Trust shall be in the form of
one or more individual certificates in definitive, fully registered form without
distribution coupons and shall bear the following legend (the "Restricted
Securities Legend") unless the Company determines otherwise in accordance with
applicable law:
--------
* (...continued)
Exchange Medallion Program (MSP); (iii) The Stock Exchange Medallion
Program (SEMP); or (iv) in such other guarantee programs acceptable to the
Trustee.
** Or in the form provided in Section 6.14 in the event that a separate
Authenticating Agent is appointed pursuant thereto.
33
"THE SECURITIES EVIDENCED HEREBY AND THE COMMON STOCK ISSUABLE UPON THEIR
CONVERSION HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (1) TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE 144A, (2) IN AN
OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER
THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT OR, IN EACH CASE, IN COMPLIANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.
ARTICLE 3
THE DEBENTURES
SECTION 3.1. Amount of Debentures. The aggregate principal amount of
Debentures which may be authenticated and delivered under this Indenture is
$118,600,000 except for Debentures authenticated and delivered upon registration
of, transfer of, or in exchange for, or in lieu of, other Debentures pursuant to
Sections 3.4, 3.5 or 3.6.
SECTION 3.2. Denominations. The Debentures shall be in registered form
without coupons and shall be issuable in denominations of $50 and any integral
multiple thereof.
SECTION 3.3. Execution, Authentication, Delivery and Dating. The
Debentures shall be executed on behalf of the Company by two duly authorized
officers on behalf of the Company. The signature of any of these officers on the
Debentures may be manual or facsimile.
Debentures bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Debentures or did not
hold such offices at the date of such Debentures. Upon the execution and
delivery of this Indenture, or from time to time thereafter, Debentures may be
executed by the Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and make available for delivery said
Securities to or upon
34
Company Order without any further action by the Company. Debentures may be
authenticated on original issuance from time to time and delivered pursuant to
such procedures acceptable to the Trustee ("Procedures") as may be specified
from time to time by Company Order. Procedures may authorize authentication and
delivery pursuant to oral instructions of the Company or a duly authorized
agent, which instructions shall be promptly confirmed in writing.
Each Debenture shall be dated the date of its authentication.
No Debenture shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Debenture a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
officers, and such certificate upon any Debenture shall be conclusive evidence,
and the only evidence, that such Debenture has been duly authenticated and
delivered hereunder.
SECTION 3.4. Temporary Debentures. Pending the preparation of definitive
Debentures, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Debentures which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any denomination,
substantially of the tenor of the definitive Debentures in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Debentures may determine, as
evidenced by their execution of such Debentures.
If temporary Debentures are issued, the Company will cause definitive
Debentures to be prepared without unreasonable delay. After the preparation of
definitive Debentures, the temporary Debentures shall be exchangeable for
definitive Debentures upon surrender of the temporary Debentures at the office
or agency of the Company designated for the purpose without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Debentures,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debentures of authorized
denominations. Until so exchanged, the temporary Debentures shall in all
respects be entitled to the same benefits under this Indenture as definitive
Debentures.
35
SECTION 3.5. Registration, Transfer and Exchange. The Company shall cause
to be kept at the Corporate Trust Office of the Trustee a register in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Debentures and of transfers of Debentures. Such
register is herein sometimes referred to as the "Securities Register." The
Trustee is hereby appointed "Securities Registrar" for the purpose of
registering Debentures and transfers of Debentures as herein provided.
Upon surrender for registration of transfer of any Debenture at the office
or agency of the Company designated for that purpose the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the desig nated
transferee or transferees, one or more new Debentures of any authorized
denominations, of a like aggregate principal amount.
At the option of the Holder, Debentures may be exchanged for other
Debentures of any authorized denominations, of a like aggregate principal
amount, upon surrender of the Debentures to be exchanged at such office or
agency. Whenever any Debentures are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Debentures
which the Holder making the exchange is entitled to receive.
All Debentures issued upon any transfer or exchange of Debentures shall be
the valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Debentures surrendered upon such
transfer or exchange.
Every Debenture presented or surrendered for transfer or exchange shall
(if so required by the Company or the Securities Registrar) be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
36
No service charge shall be made to a Holder for any transfer or exchange
of Debentures, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Debentures.
Notwithstanding any of the foregoing, the Global Debenture shall be
exchangeable pursuant to this Section 3.5 for Debentures registered in the names
of Persons other than the Depositary for such Debenture or its nominee only if
(a) such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for the Global Debenture and the Company shall not have
appointed a successor depositary within 90 days after such notice, or if at any
time such Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (b) the Company executes and
delivers to the Trustee a Company Order that the Global Debenture shall be so
exchangeable or (c) there shall have occurred and be continuing an Event of
Default. The Global Debenture shall be exchangeable for Debentures registered in
such names as such Depositary shall direct.
Notwithstanding any other provisions in this Indenture, the Global
Debenture may not be transferred except as a whole by the Depositary with
respect to the Global Debenture to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of such Depositary.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (a) to issue, transfer or exchange any Debenture
during a period beginning at the opening of business 15 days before the day of
selection for redemption of Debentures pursuant to Article 11 and ending at the
close of business on the day of mailing of notice of redemption or (b) to
transfer or exchange any Debenture so selected for redemption in whole or in
part, except, in the case of any Debenture to be redeemed in part, any portion
thereof not to be redeemed.
The Debentures may not be transferred except in compliance with the
Restricted Securities Legend unless otherwise determined by the Company in
accordance with applicable law. Upon any distribution of the Debentures to the
holders of the Preferred Securities in accordance with the Trust Agreement, the
Company and the Trustee shall enter into a supplemental indenture pursuant to
Section 9.1(h) to provide for transfer procedures and restrictions with respect
to the Debentures substantially similar to those
37
contained in the Trust Agreement to the extent applicable in the circumstances
existing at the time of such distribution.
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Debentures. If any
mutilated Debenture is surrendered to the Trustee together with such security or
indemnity as may be required by the Company or the Trustee to save each of them
harmless, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Debenture and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (a) evidence
to their satisfaction of the destruc tion, loss or theft of any Debenture, and
(b) such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of actual notice to the Company or the Trustee
that such Debenture has been acquired by a bona fide purchaser, the Company
shall execute and upon a Company Order the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Debenture, a new
Debenture bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debenture has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debenture, pay such Debenture.
Upon the issuance of any new Debenture under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Debenture issued pursuant to this Section in lieu of any
destroyed, lost or stolen Debenture shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debenture shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Debentures duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debentures.
38
SECTION 3.7. Payment of Interest; Interest Rights Preserved. Interest on
any Debenture which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date, shall be paid to the Person in whose name that
Debenture (or one or more Predecessor Debentures) is registered at the close of
business on the Regular Record Date, except that interest payable on the Stated
Maturity of the Debentures shall be paid to the Person to whom principal is
paid.
Any interest on the Debentures which is payable, but is not timely paid or
duly provided for, on an Interest Payment Date (herein called "Defaulted
Interest"), shall forthwith cease to be payable to the registered Holder on the
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Debentures (or their respective
Predecessors Debentures) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on the Debentures and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first class, postage prepaid, to each Holder of the Debentures
at the address of such Holder as it appears in the Securities Register not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the
39
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Debentures (or their respective Predecessor Debentures) are registered on
such Special Record Date and shall no longer be payable pursuant to the
following clause (b).
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debentures may be listed and, upon such
notice as may be required by such exchange (or by the Trustee if the
Debentures are not listed), if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debenture
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Debenture shall carry the rights to interest accrued and unpaid, and
to accrue, which were carried by such other Debenture.
SECTION 3.8. Persons Deemed Owners. The Company, the Trustee, the Paying
Agent and any agent of the Company or the Trustee or the Paying Agent may treat
the Person in whose name any Debenture is registered as the owner of such
Debenture for the purpose of receiving payment of principal of and (subject to
Section 3.7) interest on such Debenture and for all other purposes whatsoever,
whether or not such Debenture be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 3.9. Cancellation. All Debentures surrendered for payment,
redemption, conversion transfer or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee, and any such Debentures and
Debentures surrendered directly to the Trustee for any such purpose shall be
promptly canceled by it. The Company may at any time deliver or cause to be
delivered to the Trustee for cancellation any Debentures previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Debentures so delivered shall be promptly canceled by
the Trustee. No Debentures shall be authenticated in lieu of or in exchange for
any Debentures canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Debentures shall be destroyed by the
Trustee and upon request, the Trustee
40
shall deliver to the Company a certificate of such destruction.
SECTION 3.10. Computation of Interest. Interest on the Debentures shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.11. Deferrals of Interest Payment Dates. The Company shall have
the right, at any time during the term of the Debentures, so long as no Event of
Default has occurred and is continuing, from time to time to extend the interest
payment period for the Debentures for up to 20 consecutive quarters with respect
to each deferral period (each, an "Extension Period") during which periods the
Com pany shall have the right to not make payments of interest (including any
Liquidated Damages) on any Interest Payment Date, and at the end of such
Extension Period the Company shall pay all interest then accrued and unpaid
thereon (together with Additional Interest thereon, if any, at the rate
specified for the Debentures to the extent permitted by applicable law),
provided, however, that during any such Extension Period, the Company shall not,
and shall cause any Subsidiary not to, (a) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any shares of the Company's capital stock or (b) make any
payment of principal, interest or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees of indebtedness for money
borrowed) of the Company that rank pari passu with or junior to the Debentures
(other than (i) any dividend, redemption, liquidation, interest, principal or
guarantee payment by the Company where the payment is made by way of securities
(including capital stock) that rank pari passu with or junior to the securities
on which such dividend, redemption, interest, principal or guarantee payment is
being made, (ii) redemptions or purchases of any rights pursuant to the
Company's Shareholders Rights Plan, or any successor to such Shareholders Rights
Plan, and the declaration of a dividend of such rights or the issuance of
preferred stock under such plans in the future, (iii) payments under the
Guarantee, (iv) purchases of Common Stock related to the issuance of Common
Stock under any of the Company's benefit plans for its directors, officers or
employees, (v) as a result of a reclassification of the Company's capital stock
or the exchange or conversion of one series or class of the Company's capital
stock for another series or class of the Company's capital stock and (vi) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security
41
being converted or exchanged). Prior to the termination of any such Extension
Period, the Company may further extend the interest payment period, provided
that no such Extension Period shall exceed 20 consecutive quarters or extend
beyond the Stated Maturity of the Debentures. Upon termination of any Extension
Period and upon the payment of all accrued and unpaid interest and any
Additional Interest then due, the Company may select a new Extension Period,
subject to the above requirements. No interest including Additional Interest
and Liquidated Damages, if any, shall be due and payable during an Extension
Period, except at the end thereof. The Company shall give the Trustee, the
Property Trustee and the Administrative Trustees notice of its selection of such
Extension Period at least one Business Day prior to the earlier of (i) the
record date for the date the distribu tions on the Preferred Securities of the
Trust (or if no Preferred Securities are outstanding, for the date interest on
the Debentures) would have been payable except for the election to begin such
Extension Period and (ii) the date the Property Trustee (or, if no Preferred
Securities are outstanding, the Trustee) is required to give notice to the NYSE
or other applicable self-regulatory organization or to holders of such Preferred
Securities (or, if no Preferred Securities are outstanding, to the holders of
such Debentures) of such record date, but in any event not less than one
Business Day prior to such record date. Such notice shall specify the period
selected.
The Trustee shall promptly give notice of the Company's selection of such
Extension Period to the Holders of the outstanding Debentures.
SECTION 3.12. Right of Set-off. Notwithstanding anything to the contrary
in the Indenture, the Company shall have the right to set-off any payment it is
otherwise required to make thereunder in respect of the Debenture to the extent
the Company has theretofore made, or is concurrently on the date of such payment
making, a payment relating to the Debentures under the Guarantee.
SECTION 3.13. Agreed Tax Treatment. Each Debenture issued hereunder shall
provide that the Company and, by its acceptance of a Debenture or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, such Debenture agree that for United States Federal, state and
local tax purposes it is intended that such Debenture constitute indebtedness.
SECTION 3.14. CUSIP Numbers. The Company in issuing the Debentures may use
"CUSIP" numbers (if then generally in
42
use), and, if so, the Trustee shall use such "CUSIP" number in notices of
redemption as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such number either as
printed on the Debentures or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Debentures, and any such redemption shall not be affected by any defect in or
omission of such numbers.
SECTION 3.15. Global Security. (a) In connection with distribution of
Debentures to holders of the Preferred Securities in connection with the
involuntary or voluntary dissolution, winding up or liquidation of the Trust,
(i) the Debentures in certificated form may be presented to
the Trustee by the Property Trustee in exchange for one or more global
certificates in an aggregate principal amount equal to the aggregate principal
amount of all outstanding Debentures (each a "Global Debenture"), to be
registered in the name of the Depositary, or its nominee, and delivered by the
Trustee to the Depositary, or its custodian, for crediting to the accounts of
its participants pursuant to the procedures of the Depositary. The Company upon
any such presentation shall execute a Global Debenture in such aggregate
principal amount and deliver the same to the Trustee for authentication and
delivery in accordance with this Indenture; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Debentures in certificated form may be presented to the
Trustee by the Property Trustee and any Preferred Security certificate which
repre sents Preferred Securities other than Preferred Securities held by the
Depositary or its nominee ("Non Book-Entry Preferred Securities") will be
deemed to represent beneficial interests in Debentures presented to the Trustee
by the Property Trustee having an aggregate principal amount equal to the
aggregate liquidation amount of the Non Book-Entry Preferred Securities until
such Preferred Security certificates are presented to the Securities Registrar
for transfer or reissuance at which time such Non-Book Entry Preferred Security
certificates will be canceled and a Debenture, registered in the name of the
holder of the Preferred Security certificate or the transferee of the holder of
such Preferred Security certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Security certificate canceled, will be executed by the Company and delivered to
the Trustee for authentication and delivery in
43
accordance with this Indenture. On issue of such Deben tures, Debentures with an
equivalent aggregate principal amount that were presented by the Property
Trustee to the Trustee will be deemed to have been canceled.
(b) A Global Debenture may be transferred, in whole but not in part,
only to another nominee of the Depositary, or to a nominee of such successor
Depositary.
(c) If (i) the Depositary notifies the Company that it is unwilling
or unable to continue as a depositary for such Global Debenture and no successor
depositary shall have been appointed within 90 days by the Company, (ii) the
Depositary, at any time, ceases to be a clearing agency registered under the
Exchange Act at which time the Depositary is required to be so registered to act
as such depositary and no successor depositary shall have been appointed within
90 days by the Company, (iii) the Company, in its sole discretion, determines
that such Global Debenture shall be so exchangeable or (iv) there shall have
occurred an Event of Default with respect to such Debentures, as the case may
be, the Company will execute, and, subject to Article 3 of this Indenture, the
Trustee, upon written notice from the Company and receipt of a Company Order,
will authenticate and deliver the Debentures in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Debenture in exchange for
such Global Debenture. In addition, upon an Event of Default or if the Company
may at any time determine that the Debenture shall no longer be represented by a
Global Debenture, in such event the Company will execute, and subject to
Section 3.5 of this Indenture, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company and a Company Order,
will authenticate and make available for delivery the Debentures in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Debenture
in exchange for such Global Debenture. Upon the exchange of the Global Debenture
for such Debentures in definitive registered form without coupons, in authorized
denominations, the Global Debenture shall be canceled by the Trustee. Such
Debentures in definitive registered form issued in exchange for the Global
Debenture shall be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Debentures to the Depositary for delivery to
44
the Persons in whose names such Debentures are so registered.
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 4.1. Satisfaction and Discharge of Indenture. (A) If at any
time (a) the Company shall have paid or caused to be paid the principal of, and
interest, if any, on all the Debentures theretofore authenticated (other than
Debentures which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6), in accordance with the terms of
this Indenture and such Debentures or (b) as to Debentures not so paid, the
Company shall have delivered to the Trustee for cancellation all Debentures
theretofore authenticated (other than any Debentures which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 3.6) or (c) as to Debentures not so paid or delivered for
cancellation, (i) all the Debentures shall have become due and payable, or are
by their terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and (ii) the Company shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds money in an
amount (other than moneys repaid by the Trustee or any paying agent to the
Company in accordance with Section 4.4) or Government Obligations, maturing as
to principal and interest at such times and in such amounts as will insure the
availability of money, or 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 (A) the principal
and interest, if any, on all Debentures of such series on each date that such
principal or interest, if any, is due and payable and (B) any mandatory sinking
fund or analogous payments on the dates on which such payments are due and
payable in accordance with the terms of this Indenture and the Debentures; and
if, in any such case, the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company then this Indenture shall cease to be of
further effect (except as to (i) rights of registration of transfer and exchange
of Debentures and the Company's right of optional redemption, if any, (ii)
substitution of mutilated, defaced, destroyed, lost or
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, (▇▇▇) the rights of Holders to receive Debentures, payments
of principal thereof, and interest, if any, thereon, upon the original stated
due dates therefor or any date of redemption (but not upon acceleration), and
remaining rights of such Holders to receive mandatory sinking fund or analogous
payments, if any, (iv) the rights, obligations, duties and immunities of the
Trustee hereunder, (v) the rights of Holders as beneficiaries hereof with
respect to the property so deposited with the Trustee and payable to all or any
of them, (vi) conversion of the Debentures under Article 13, (vii) maintenance
of the Trust as a grantor trust under Section 10.8 and (viii) the obligations of
the Company under Section 10.2) and the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with, and at the cost and
expense of the Company, shall execute proper instruments acknowledging such
satisfaction and discharge of this Indenture. The Company agrees to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly
incurred and to compensate the Trustee for any services thereafter reasonably
and properly rendered by the Trustee in connection with this Indenture or the
Debentures.
(B) In addition to discharge of this Indenture pursuant to the next
preceding paragraph (A) the Company shall be deemed to have paid and discharged
the entire indebtedness on all the Debentures on the 123rd day after the date of
making the deposit referred to in clause (a), and the provisions of this
Indenture with respect to the Debentures shall no longer be in effect (except as
to (i) rights of registration of transfer and exchange of Debentures and the
Company's right of optional redemption, if any, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Debentures, (iii) the rights of Holders of
Debentures to receive payments of principal thereof and interest, if any,
thereon upon the original stated due dates therefor or any date of redemption
(but not upon acceleration), and remaining rights of such Holders to receive
mandatory sinking fund or analogous payments, if any, solely from the trust fund
referred to in subparagraph (a) below, (iv) the rights, obligations, duties and
immunities of the Trustee hereunder, (v) the rights of Holders as beneficiaries
hereof with respect to the property so deposited with the Trustee and payable to
all or any of them, (vi) conversion of the Debentures under Article 13, (vii)
maintenance of the Trust as a grantor trust under Section 10.8 and (viii) the
obligations of the Company under
46
Section 10.2), and the Trustee, at the cost and expense of the Company, shall,
at the Company's written request, execute proper instruments acknowledging the
same, if:
(a) the Company shall have irrevocably deposited or caused to be
irrevocably deposited with the Trustee as a trust fund specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of the
Debentures of such series (i) money in an amount, or (ii) Government
Obligations, maturing as to principal and interest at such times and in such
amounts as will insure the availability of money, or (iii) a combination
thereof, sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification therefor
delivered to the Trustee, to pay (A) the principal and interest, if any, on all
Debentures of such series on each date that such principal or interest, if any,
is due and payable and (B) any mandatory sinking fund or analogous payments on
the dates on which such payments are due and payable in accordance with the
terms of this Indenture and the Debentures;
(b) no Event of Default or event which, with notice or lapse of time
or both, would become an Event of Default with respect to the Debentures shall
have occurred and be continuing on the date of such deposit or at any time
during the period ending on the 123rd day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period);
(c) such deposit shall not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is bound;
(d) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (i) if such deposits shall include Government
Obligations in respect of any government other than the United States of
America, such deposit shall not result in the Company, the Trustee or such trust
constituting an 'investment company' under the Investment Company Act of 1940,
as amended, and (ii) if any such deposit occurs more than one year prior to the
stated maturity or redemption date of the Debentures, the Holders will not
recognize income, gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to Federal income tax
on the same amounts, in the same manner and at the same times as
47
would have been the case if such deposit, defeasance and discharge had not
occurred; and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated by this
paragraph have been complied with.
(C) The Company shall be released from its obligations under Article
Eight and Article Ten (except with respect to maintenance of the Trust as a
grantor trust under Section 10.8) with respect to the Debentures Outstanding on
and after the date the conditions set forth below are satisfied (hereinafter,
'covenant defeasance'). Covenant defeasance means that, with respect to the
Outstanding Debentures, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in Article
Ten, whether directly or indirectly by reason of any reference elsewhere herein
to such Article by reason of any reference in such Article to any other
provision herein or by reason of any reference to such Article in any other
document, and such omission to comply shall not constitute an Event of Default
under Section 5.1. The following shall be the conditions to application of this
paragraph (C):
(a) the Company shall have irrevocably deposited or caused to be
irrevocably deposited with the Trustee as a trust fund specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of the
Debentures, (i) money in an amount, or (ii) Government Obligations, maturing as
to principal and interest at such times and in such amounts as will insure the
availability of nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
(A) the principal and interest, if any, on all Debentures of such series on each
date that such principal or interest, if any, is due and payable and (B) any
mandatory sinking fund or analogous payments on the dates on which such payments
are due and payable in accordance with the terms of this Indenture and the
Debentures;
(b) no Event of Default or event which, with notice or lapse of time
or both, would become an Event of Default shall have occurred and be continuing
on the date of such deposit or at any time during the period ending on the 123rd
day after the date of such deposit (it being
48
understood that this condition shall be deemed satisfied until the expiration of
such period);
(c) such covenant defeasance shall not result in a breach or
violation of, or constitute of a default under, this Indenture or any other
material agreement or instrument to which the Company is a party or by which it
is bound;
(d) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (i) if such deposits shall include Government
Obligations in respect of any government other than the United States of
America, such deposit shall not result in the Company, the Trustee or such trust
constituting an 'investment company' under the Investment Company Act of 1940,
as amended, and (ii) the Holders will not recognize income, gain or loss for
Federal income tax purposes as a result of such covenant defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had not
occurred; and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such covenant defeasance have been
complied with.
SECTION 4.2. Application by Trustee of Funds Deposited for Payment
of Debentures. Subject to Section 4.4, all moneys and Government Obligations
deposited with the Trustee (or other trustee), and all money received by the
Trustee in respect of Government Obligations deposited with the Trustee,
pursuant to Section 4.1 shall be held in trust and applied by it to the payment,
either directly or through any paying agent (including the Company acting as its
own paying agent), to the Holders of all sums due and to become due thereon for
principal and interest, if any; but such money need not be segregated from other
funds except to the extent required by law.
SECTION 4.3. Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture, all moneys then held by
any paying agent under the provisions of this Indenture shall, upon 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 moneys.
49
SECTION 4.4. Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Three Years. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of principal or interest, and not applied but
remaining unclaimed for three years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request of
the Company and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Company by the
Trustee or such paying agent, and any Holder shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Company for any payment which such Holder may
be entitled to collect, and all liability of the Trustee or any paying agent
with respect to such moneys shall thereupon cease; provided, however, that the
Trustee or such paying agent, before being required to make any such repayment
with respect to moneys deposited with it for any payment shall at the expense of
the Company, mail by first-class mail to Holders Debentures at their addresses
as they shall appear on the Security Register for the Debentures of such series,
notice that such moneys remain and that, after a date specified therein, which
shall not be less than 30 days from the date of such mailing any unclaimed
balance of such moneys then remaining will be repaid to the Company.
SECTION 4.5. Indemnity for Government Obligations. The Company shall
pay and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the Government Obligations deposited pursuant to Section 4.1 or
the principal or interest received in respect of such Government Obligations,
other than any such tax, fee or other charge which by law is for the account of
the Holders for whose benefit such Government Obligations are held.
ARTICLE 5
REMEDIES
SECTION 5.1. Events of Default. "Event of Default", wherever used herein
with respect to the Debentures, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
50
(a) default in the payment of any interest upon the Debenture,
including any Additional Interest in respect thereof, when it becomes due
and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any due date in the case of an Extension
Period); or
(b) default in the payment of the principal of (or premium, if any,
on) the Debentures when due whether at Stated Maturity, upon redemption by
declaration or otherwise; or
(c) failure on the part of the Company duly to observe or perform in
any material respect any other of the covenants or agreements on the part
of the Company contained in the Debentures or contained in this Indenture
(other than a covenant or agreement which has been expressly included in
this Indenture solely for the benefit of the Company) and continuance for
such failure for a period of 90 days after the date on which written
notice of such failure, requiring the same to be remedied and stating that
such notice is a "Notice of Default" hereunder, shall have been given to
the Company by the Trustee, by registered or certified mail, or to the
Company and the Trustee by a Holder or Holders of at least 25% in
aggregate principal amount of the Debentures at the time Outstanding or
the holder or holders of at least 25% in aggregate liquidation preference
of the Preferred Securities;
(d) failure by the Company to issue the Common Stock upon an
appropriate election by the Holder or Holders of the Debentures to convert
the Debentures into shares of Common Stock;
(e) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company as bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of the Company under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or of any
substantial part of its property or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; or
51
(f) the institution by the Company of proceedings to be adjudicated
as bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law, or the consent by it to the filing of any such petition
or to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or of any
substantial part of its property or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due and its
willingness to be adjudicated as bankrupt, or the taking of corporate
action by the Company in furtherance of any such action.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debentures may declare the principal amount of all the Debentures to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), provided that, if upon an Event of Default,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debentures fail to declare the principal of all the Debentures to be
immediately due and payable, the holders of at least 25% in aggregate
liquidation amount of the Preferred Securities then outstanding shall have such
right by a notice in writing to the Company and the Trustee, and upon any such
declaration such principal amount (or specified amount) of and the accrued
interest (including any Additional Interest) on all the Debentures shall become
immediately due and payable, provided that the payment of principal and
interest (including any Additional Interest) on the Debentures shall remain
subordinated to the extent provided in Article 12.
At any time after such a declaration of acceleration with respect to
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding
Debentures, by written notice to the Company and the Trustee may rescind and
annul such declaration and its consequences if:
52
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest (including any
Additional Interest) on the Debentures;
(B) the principal of (and premium, if any, on) the Debentures
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the
Debentures;
(C) to the extent that payment of such interest is lawful,
interest (including any Additional Interest) upon overdue
installments of interest at the rate borne by the Debentures;
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(ii) all Events of Default with respect to Debentures, other than the
non-payment of the principal of the Debentures which has become due solely
by such acceleration, have been cured or waived as provided in Section
5.13. If the holders of a majority in principal amount of the Outstanding
Debentures fail to rescind and annul such declaration and its
consequences, the holders of a majority in liquidation amount of the
Preferred Securities then outstanding shall have such right.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(a) default is made in the payment of any installment of interest
(including any Additional Interest) on the Debentures when such interest becomes
due and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (and premium, if
any, on) the Debentures whether at the Stated Maturity thereof upon redemption
by declaration or otherwise, the Company will, upon demand of the Trustee, pay
to it, for the benefit of the Holders of the Debentures, the whole amount then
due and payable on the Debentures for
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principal (and premium, if any) and interest (including any Additional
Interest), including, to the extent that payment of such interest shall be
lawful, interest on any overdue principal (and premium, if any) and on any
overdue installments of interest (including any Additional Interest) at the
rate borne by the Debentures, and, in addition thereto, all amounts owing the
Trustee under Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgement or final decree, and may enforce the same
against the Company or any other obligor upon the Debentures and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Debentures, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of the Debentures by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 5.4. Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Debentures or the property of the
Company or of such other obligor or their creditors:
(a) the Trustee (irrespective of whether the principal of the Debentures
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal (and premium, if any) or
interest (including any Additional Interest)) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest (including any Additional Interest) owing
and unpaid in respect to the Debentures and to file such other papers
54
or documents as may be necessary or advisable and to take any and all
actions as are authorized under the Trust Indenture Act in order to have
the claims of the Holders and any predecessor to the Trustee under Section
6.7 allowed in any such judicial proceedings; and
(ii) in particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such
claims and to distribute the same in accordance with Section 5.6; and
(b) any custodian, receiver, assignee, trustee, liquidator, sequestrator
(or other similar official) in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee for distribution in
accordance with Section 5.6, and in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due to it and any predecessor Trustee under Section 6.7;
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrange ment, adjustment or composition affecting the Debentures
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 5.5. Trustee May Enforce Claim Without Possession of Debentures.
All rights of action and claims under this Indenture or the Debentures may be
prosecuted and enforced by the Trustee without the possession of any of the
Debentures or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgement shall, after
provision for the payment of all the amounts owing the Trustee and any
predecessor Trustee under Section 6.7, its agents and counsel, be for the
ratable benefit of the Holders of the Debentures in respect of which such
judgement has been recovered.
SECTION 5.6. Application of Money Collected. Any money or property
collected or to be applied by the Trustee with respect to the Debentures
pursuant to this Article
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shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money or property on account of
principal (or premium, if any) or interest (including any Additional Interest),
upon presentation of the Debentures and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor
Trustee under Section 6.7;
SECOND: To the payment of the amounts then due and unpaid upon the
Debentures for principal (and premium, if any) and interest (including any
Additional Interest), in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Debentures for principal (and
premium, if any) and interest (including any Additional Interest), respectively;
THIRD: The balance, if any, to the Person or Persons
entitled thereto; and
FOURTH: To the Company.
SECTION 5.7. Limitation on Suits. No Holder of the Debentures, including a
holder of Preferred Securities acting to enforce the rights of the Property
Trustee as a Holder of the Debentures pursuant to Section 6.8 of the Trust
Agreement, shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture or for the appointment of a receiver,
assignee, trustee, liquidator, sequestrator (or other similar official) or for
any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(b) if the Trust is not the sole holder of the Outstanding
Debentures, the Holders of not less than 25% in principal amount of the
Outstanding Debentures shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
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(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60- day period by the Holders of a
majority in principal amount of the Outstanding Debentures;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of the Debentures, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest. Notwithstanding any other provision in this Indenture, the Holder
of any Debenture shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.7) interest (including any Additional Interest) on such Debenture on
the Maturity or to convert such Debenture in accordance with Article 13 and to
institute suit for the enforcement of any such payment and right to convert, and
such right shall not be impaired without the consent of such Holder. For so long
as any Preferred Securities remain Outstanding, to the fullest extent permitted
by law and subject to the terms of this Indenture and the Trust Agreement, upon
an Event of Default specified in Sections 5.1(a) or 5.1(b), any holder of
Preferred Securities shall have the right to institute a proceeding directly
against the Company, for enforcement of payment to such holder of the principal
amount of or interest on Debentures having a principal amount equal to the
liquidation preference of the Preferred Securities of such holder (a "Direct
Action"). Notwithstanding any payment made to such holder of Preferred
Securities by the Company in connection with a Direct Action, the Company shall
remain obligated to pay the principal of or interest on the Debentures held by
the Trust or the Property Trustee.
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In connection with any such Direct Action, the rights of the Company will be
subrogated to the rights of any holder of the Preferred Securities to the extent
of any payment made by the Company to such holder of Preferred Securities as a
result of such Direct Action. Except as set forth in this Section, the holders
of Preferred Securities shall have no right to execute any right or remedy
available to the Holders of or in respect of, the Debentures.
SECTION 5.9. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case the Company, the Trustee and the Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as otherwise provided
in the last paragraph of Section 3.6, no right or remedy herein conferred upon
or reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 5.11. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of the Deben tures to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy, or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or
to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders. The Holders of a majority in principal
amount of the Outstanding Debentures shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
58
Trustee or exercising any trust or power conferred on the Trustee, with respect
to the Debentures, provided that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that
the proceeding so directed would be unjustly prejudicial to the Holders
not joining in any such direction or would involve the Trustee in personal
liability.
Upon receipt by the Trustee of any written notice directing the time,
method or place of conducting any such proceeding or exercising any such trust
or power, with respect to the Debentures and, if all or part of the Debentures
is represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Debentures entitled to join in such notice,
which record date shall be at the close of business on the day the Trustee
receives such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice,
whether or not such Holders remain Holders after such record date, provided,
that, unless the Holders of a majority in principal amount of the Outstanding
Debentures shall have joined in such notice prior to the day which is 90 days
after such record date, such notice shall automatically and without further
action by any Holder be canceled and of no further effect. Nothing in this
paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after
expiration of such 90-day period, a new notice identical to a notice which has
been canceled pursuant to the proviso to the preceding sentence, in which event
a new record date shall be established pursuant to the provisions of this
Section 5.12.
SECTION 5.13. Waiver of Past Defaults. Subject to Section 9.2 hereof, the
Holders of not less than a majority in principal amount of the Outstanding
Debentures may on behalf of the Holders of all the Debentures waive any past
default hereunder with respect to Debentures and its consequences, except a
default:
59
(a) in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on the Debentures (unless
such default has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration
has been deposited with the Trustee), or
(b) in respect of a covenant or provision hereof which under Article
9 cannot be modified or amended without the consent of the Holder of each
Outstanding Debenture; provided, however, that if the Debentures are held
by the Trust or a trustee of the Trust, such waiver shall not be effective
until the holders of a majority in liquidation amount of Preferred
Securities shall have consented to such waiver; provided, further, that if
the consent of the Holder of each outstanding Debenture is required, such
waiver shall not be effective until each holder of the Trust Securities
shall have consented to such waiver.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture, but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon. If the Holders of a majority in
aggregate principal amount of the Outstanding Debentures fail to waive such
Event of Default, the holders of a majority in aggregate liquidation amount of
Preferred Securities shall have such right. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Debenture by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Debentures, or to any suit instituted by any
60
Holder for the enforcement of the payment of the principal of (or premium, if
any) or interest (including any Additional Interest) on the Debentures on or
after the Maturity of the Debentures or to convert a Debenture in accordance
with Article 13.
SECTION 5.15. Waiver of Usury, Stay, or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities. (a)
Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture, but in the case of any such certificates or
opinions which by any provisions hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and
61
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.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct except that
(i) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direc tion of Holders pursuant to Section 5.12
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power con ferred upon the Trustee, under this Indenture.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or other wise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if there shall be reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.2. Notice of Defaults. Within 90 days after actual knowledge by
a Responsible Officer of the Trustee of the occurrence of any default hereunder,
the Trustee shall transmit by mail to all Holders of Debentures, as their names
and addresses appear in the Securities Register, notice of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived;
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provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest (including any Additional
Interest) on Debenture, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders of Debentures; and provided, further, that, except in the case of any
default of the character specified in Section 5.1(c), no such notice to Holders
of the Debentures shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default.
SECTION 6.3. Certain Rights of Trustee. Subject to the provisions of
Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, Debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate and an Opinion
of Counsel;
(d) the Trustee may consult with counsel of its selection, and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
63
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee is not required to expend or risk its own funds or
otherwise incur personal financial liability in the performance of its
duties if the Trustee reasonably believes that repayment or adequate
indemnity is not reasonably assured to it.
(g) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, indenture, Debenture or other paper or document, but the Trustee in
its discretion may make such inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make
such inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
and
(h) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on any part of any agent or attorney appointed with due care by
it hereunder.
SECTION 6.4. Not Responsible for Recitals or Issuance of Debentures. The
recitals contained herein and in the Debentures, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debentures. The Trustee shall not be accountable for the use
or application by the Company of the Debentures or the proceeds thereof.
SECTION 6.5. May Hold Debentures. The Trustee, any Paying Agent,
Securities Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Debentures and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Company with the
64
same rights it would have if it were not Trustee, Paying Agent, Securities
Registrar or such other agent.
SECTION 6.6. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability of interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 6.7. Compensation and Reimbursement. The Company agrees
(a) to pay to the Trustee from time to time such compensation for
all services rendered by it hereunder in such amounts as the Company and
the Trustee shall agree from time to time (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursements of its agents and
counsel); and
(c) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense (including the reasonable compensation and
the expenses and disbursements of its agents and counsel) incurred without
negligence or bad faith, arising out of or in connection with the
acceptance or administration of this trust or the performance of its
duties hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. This Indemnification
shall survive the termination of this Agreement.
To secure the Company's payment obligations in this Section, the Company
and the Holders agree that the Trustee shall have a lien prior to the Debentures
on all money or property held or collected by the Trustee except assets held in
trust to pay principal and premium, if any, or interest on particular Debentures
pursuant to the discharge and defeasance provisions pursuant to Article 4, or
pursuant to any redemption pursuant to Article 11 hereof if monies have been
deposited for such redemption and notice has been given
65
and the Redemption Date has passed. Such lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(e) or (f) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Reform Act of 1978 or a successor statute.
SECTION 6.8. Disqualification; Conflicting Interests. The Trustee shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of Section 310(b) of the Trustee
Indenture Act. The Trust Agreement and the Guarantee shall be deemed to be
specifically described in this Indenture for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 6.9. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of the
United States of America or of any State, Territory or the District of
Columbia, authorized under such laws to exercise corporate trust powers
and subject to supervision or examination by Federal, State, Territorial
or District of Columbia authority, or
(b) a corporation or other Person organized and doing business under
the laws of a foreign government that is permitted to act as Trustee
pursuant to a rule, regulation or order of the Commission, authorized
under such laws to exercise corporate trust powers, and subject to
supervision or examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to supervision or
examination applicable to United States institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then,
to the purposes of this Section, the combined capital and surplus of such
corporation shall be
66
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article. Neither the Company nor any Person directly or indirectly controlling,
controlled by or under common control with the Company shall serve as Trustee
hereunder.
SECTION 6.10. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of
a majority in principal amount of the Outstanding Debentures, delivered to
the Trustee and to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Debenture for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged as bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer
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shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Company by Board Resolution may remove the
Trustee, or (B) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Debenture for at least six months may, on behalf of himself and all
other similarly situated Holders, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause
with respect to the Debentures, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If, within one year after such
resignation, removal or incapabili ty, or the occurrence of such vacancy,
a successor Trustee with respect to the Debentures shall be appointed by
Act of the Holders of a majority in principal amount of the Outstanding
Debentures delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have been
appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of
a Debenture for at least six months may, subject to Section 5.14, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by
mailing written notice of such event by first-class mail, postage prepaid,
to the Holders of the Debentures as their name and addresses appear in the
Securities Register. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor. (a) In case of the
appointment hereunder of a successor Trustee, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment,
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and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee, but, on the request of the Company or the Successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transfer ring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all rights, power and trusts referred to in paragraph
(a) of this Section.
(c) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Debentures shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Debentures so authenticated, and in case any
Debentures shall not have been authenticated, any successor to the Trustee may
authenticate such Debentures either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Debentures or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against Company. If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Debentures), the Trustee shall be subject to the provisions
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of the Trust Indenture Act regarding the collection of claims against the
Company (or any such other obligor).
SECTION 6.14. Appointment of Authenticating Agent. The Trustee may appoint
an Authenticating Agent or Agents with respect to the Debentures which shall be
authorized to act on behalf of the Trustee to authenticate the Debentures issued
upon exchange, registration of transfer or partial redemption thereof, and
Debentures so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Debentures by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, or of any State, Territory or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the
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Company. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment in the manner provided in Section 1.6 to
all Holders of the Debentures. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provision of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 6.7.
If an appointment is made pursuant to this Section, the Debentures may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Debentures referred to in the within mentioned
indenture.
Dated:_________________ THE BANK OF NEW YORK
As Trustee
By: _______________________
As Authenticating Agent
By: _______________________
Authorized Officer
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ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Names and Addresses of Holders. The
Company will furnish or cause to be furnished to the Trustee (unless the Trustee
is acting as the Securities Registrar).
(a) quarterly at least 5 Business Days before each Interest Payment
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of each such date.
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished.
SECTION 7.2. Preservation of Information; Communica tions to Holders. (a)
The Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders contained in the most recent list furnished
to the Trustee as provided in Section 7.1 and the names and addresses of Holders
received by the Trustee in its capacity as Securities Registrar. The Trustee may
destroy any list furnished to it as provided in Section 7.1 upon receipt of a
new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Debentures, and the
corresponding rights and privileges of the Trustee, shall be as provided in the
Trust Indenture Act.
(c) Every Holder of Debentures, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
SECTION 7.3. Reports by Trustee. (a) The Trustee shall transmit to Holders
such reports concerning the Trustee and its actions under this Indenture as may
be required pursuant to the Trust Indenture Act, at the times and in the manner
provided pursuant thereto.
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(b) Reports so required to be transmitted at stated intervals of not
more than 12 months shall be transmitted no later than July 15 in each
calendar year, commencing with the first July 15 after the first issuance
of Debentures under this Indenture.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange
or self regulatory organization of which the Trustee has received notice
by the Company upon which the Debentures are listed and also with the
Commission. The Company will notify the Trustee whenever the Debentures
are listed on any stock exchange or self-regulatory organization.
SECTION 7.4. Reports by Company. The Company shall file with the Trustee
and with the Commission, and transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided in the Trust
Indenture Act, provided that any such information, documents or reports required
to be filed with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 shall be filed with the Trustee within 15 days
after the same is required to be filed with the Commission. Notwithstanding that
the Company may not be required to remain subject to the reporting requirements
of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Company shall
continue to file with the Commission and provide the Trustee and Holders with
the annual reports and the information, documents and other reports which are
specified in Sections 13 and 15(d) of the Securities Exchange Act of 1934. The
Company also shall comply with the other provisions of Trust Indenture Act
Section 314(a).
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms. The
Company shall not consolidate with or merge into any other corporation or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and no Person shall consolidate with or merge into the Company or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:
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(a) in case the Company shall consolidate with or merge into another
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of America or
any State or the District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest (including any Additional
Interest) on all the Debentures and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed and
shall have provided for conversion rights in accordance with Article 13;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing;
(c) such consolidation, merger, conveyance, transfer or lease is
permitted under the Trust Agreement and Guarantee and does not give rise
to any breach or violation of the Trust Agreement or Guarantee; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and any such
supplemental indenture complies with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with, and the Trustee, subject to Section 6.1, may rely upon such
Officers' Certificate and Opinion of Counsel as conclusive evidence that
such transaction complies with this Section 8.1.
SECTION 8.2. Successor Corporation Substituted. Upon any consolidation or
merger by the Company with or into any other corporation, or any conveyance,
transfer or lease by the Company of its properties and assets substantially as
an entirety to any Person in accordance with Section 8.1, the
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successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor corporation had
been named as the Company herein; and in the event of any such conveyance,
transfer or lease the Company shall be discharged from all obligations and
covenants under the Indenture and the Debentures and may be dissolved and
liquidated.
Such successor corporation may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the Debentures
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee, and, upon the Company Order of such successor
corporation instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Debentures which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication
pursuant to such provisions and any Debentures which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Debentures so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Debentures theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Debentures had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form may be made in the Debentures thereafter to be
issued as may be appropriate.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of Holders. Without
the consent of or notice to any Holder, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satis factory to the
Trustee, for any of the following purposes:
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(a) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company
herein and in the Debentures contained; or
(b) to convey, transfer, assign, mortgage or pledge any property to
or with the Trustee or to surrender any right or power herein conferred
upon the Company; or
(c) to add to covenants of the Company for the benefit of the
Holders of the Debentures or to surrender any right or power herein
conferred upon the Company; or
(d) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Article 13; or
(e) to add any additional Events of Default; or
(f) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause
shall not materially adversely affect the interest of the Holders of
Debentures and for so long as any of the Preferred Securities shall remain
outstanding, the holders of such Preferred Securities; or
(g) to evidence and provide for the acceptance of appointment
hereunder by successor Trustee and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the Trust hereunder by more than one
Trustee, pursuant to the requirements of Sec tion 6.11(b); or
(h) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act; or
(i) to make provision for transfer procedures, certification,
book-entry provisions, the form of restricted securities legends, if any,
to be placed on Debentures, and all other matters required pursuant to
Section 3.5 or otherwise necessary, desirable or appro-
76
priate in connection with the issuance of Debentures to holders of
Preferred Securities in the event of a distribution of Debentures by the
Trust if a Special Event occurs and is continuing.
SECTION 9.2. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Debentures, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of the Debentures under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Debenture affected thereby,
(a) except to the extent permitted by Sec tion 3.11 with respect to
the extension of the interest payment period of the Debentures, change the
Stated Maturity of the principal of, or any installment of interest
(including any Additional Interest) on, the Debentures, or reduce the
principal amount thereof or the rate of interest thereon or reduce any
premium payable upon the redemption thereof, or change the place of
payment where, or the coin or currency in which, any Debenture or interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Maturity thereof (or, in
the case of redemption, on or after the date fixed for redemption
thereof), or
(b) adversely affect any right to convert or exchange any Debenture
or modify the provisions of this Indenture with respect to the
subordination of the Debentures in a manner adverse to such Holder; or
(c) reduce the percentage in principal amount of the Outstanding
Debentures, the consent of whose Holders is required for any such
supplemental inden ture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture; or
(d) modify any of the provisions of this Section, Article 4, Section
5.8, Section 5.13 or Section 10.6, except to increase any such percentage
or to provide
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that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Debenture affected
thereby, or the consent of the holders of all the Preferred Securities as
the case may be; or
provided that, so long as any Preferred Securities remain outstanding no
termination of this Indenture shall occur, and no waiver of any Event of Default
or compliance with any covenant under this Indenture shall be effective, without
the prior consent of the holders of at least a majority of the aggregate
liquidation preference of such Preferred Securities then outstanding unless and
until the principal (and premium, if any) of the Debentures and all accrued and
unpaid interest (including any Additional Interest) thereon have been paid in
full.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3. Execution of Supplemental Indentures. In executing or
accepting the additional trusts created by any supplemental indenture permitted
by this Article or the modifications thereby of the trust created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.1) shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture, and that all conditions precedent
have been complied with. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes, and every Holder of the Debentures theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.5. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
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SECTION 9.6. Reference in Debentures to Supplemental Indentures.
Debentures authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Debentures
so modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Debentures presented to the Trustee.
ARTICLE 10
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest. The Company
covenants and agrees for the benefit of the Debentures that it will duly and
punctually pay the principal of (and premium, if any) and interest (including
Additional Interest and Liquidated Damages) on the Debentures in accordance with
the terms of the Debentures and this Indenture.
SECTION 10.2. Maintenance of Office or Agency. The Company will maintain
in the United States, an office or agency where Debentures may be presented or
surrendered for payment and an office or agency where Debentures may be
surrendered for transfer or exchange and where notices and demands to or upon
the Company in respect of the Debentures and this Indenture may be served. The
Company initially appoints the Trustee, acting through its Corporate Trust
Office, as its agent for said purposes. The Company will give prompt written
notice to the Trustee of any change in the location of any such office or
agency. If at any time the Company shall fail to maintain such office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Debentures may be presented or surrendered for any or all
of such purposes, and may from time to time rescind such designations; provided,
however, that no such designation or rescission
79
shall in any manner relieve the Company of its obligation to maintain an office
or agency in the United States for such purposes. The Company will give prompt
written notice to the Trustee of any such designation and any change in the
location of any such office or agency.
SECTION 10.3. Money for Debenture Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to the
Debentures, it will, on or before each due date of the principal of (and
premium, if any) or interest on any of the Debentures, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
will promptly notify the Trustee of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, on or
before each due date of the principal of or interest on the Debentures, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal and premium (if any) or interest, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(a) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Debentures in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Debentures) in the making of any payment of
principal (and premium, if any) or interest;
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
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(d) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent, and, upon such payment by the Company or any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Debenture and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall
(unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be paid on Company Request, after all
payments owing the Trustee have been paid, to the Company, or (if then held by
the Company) shall (unless otherwise required by mandatory provision of
applicable escheat or abandoned or unclaimed property law) be discharged from
such trust; and the Holder of such Debenture shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease.
SECTION 10.4. Payment of Taxes and Other Claims. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all taxes, assessments and governmental charges levied or im
posed upon the Company or any Subsidiary or upon the income, profits or property
of the Company or any Subsidiary, and (b) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien upon the property of
the Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 10.5. Statement as to Compliance. The Company shall deliver to the
Trustee, within 120 days after the end of each calendar year of the Company
ending after the date
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hereof an Officers' Certificate (signed by at least one of the officers referred
to in Section 314(a)(4) of the Trust Indenture Act) covering the preceding
calendar year, stating whether or not to the best knowledge of the signers
thereof the Company is in default in the performance, observance or fulfillment
of or compliance with any of the terms, provisions, covenants and conditions of
this Indenture, and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge. For
the purpose of this Section 10.5, compliance shall be determined without regard
to any grace period or requirement of notice provided pursuant to the terms of
this Indenture.
SECTION 10.6. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any covenant or condition set forth in this
Article 10, if before or after the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Debentures, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company in
respect of any such covenant or condition shall remain in full force and effect.
SECTION 10.7. Additional Sums. In the event that (a) the Property Trustee
is the Holder of all of the Outstanding Debentures, (b) a Tax Event in respect
of the Trust shall have occurred and be continuing and (c) the Company shall not
have (i) redeemed the Debentures pursuant to Section 11.7 or 11.8 or (ii)
terminated the Trust pursu ant to Section 9.2(b) of the Trust Agreement, the
Company shall pay to the Trust (and its permitted successors or assigns under
the Trust Agreement) for so long as the Trust (or its permitted successor or
assignee) is the registered holder of the Debentures, such additional amounts as
may be necessary in order that the amount of distributions (including any
Additional Amounts (as defined in the Trust Agreement)) then due and payable by
the Trust on the Preferred Securities and Common Securities that at any time
remain outstanding in accord with the terms thereof shall not be reduced as a
result of any Additional Taxes (the "Additional Sums"). Whenever in this
Indenture or the Debentures there is a reference in any context to the payment
of principal of or interest on the Debentures, such mention shall be deemed to
include mention of the payments of the Additional Sums provided for in this
paragraph to the
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extent that, in such context, Additional Sums are, were or would be payable in
respect thereof pursuant to the provisions of this paragraph and express
mention of the payment of Additional Sums (if applicable) in any provisions
hereof shall not be construed as excluding Additional Sums in those provisions
hereof where such express mention is not made, provided, however, that the
extension of an interest payment period pursuant to Section 3.11 or the
Debentures shall not extend the payment of any Additional Sums that may be due
and payable during such interest payment period.
SECTION 10.8. Additional Covenants. The Company covenants and agrees with
each Holder of Debentures that so long as the Debentures are outstanding, if (i)
there shall have occurred any event of which the Company has actual knowledge
that (A) with the giving of notice or the lapse of time or both, would
constitute an Event of Default hereunder and (B) in respect of which the Company
shall not have taken reasonable steps to cure, (ii) the Company shall be in
default with respect to its payment of any obligations under the Guarantee or
(iii) the Company shall have given notice of its selection of an Extension
Period as provided herein and shall not have rescinded such notice, or such
period, or any extension thereof, shall be continuing, then the Company shall
not, and shall cause any Subsidiary not to, (x) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any shares of the Company's capital stock or (y) make any
payment of principal, interest or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees of indebtedness for money
borrowed) of the Com pany that rank pari passu with or junior to the Debentures
(other than (1) any dividend, redemption, liquidation, interest, principal or
guarantee payment by the Company where the payment is made by way of securities
(including capital stock) that rank pari passu with or junior to the securities
on which such dividend, redemption, interest, principal or guarantee payment is
being made, (2) redemp tions or purchases of any rights pursuant to the
Company's Shareholders Rights Plan, or any successor to such Shareholders Rights
Plan, and the declaration of a dividend of such rights or the issuance of
preferred stock under such plans in the future, (3) payments under the
Guarantee, (4) purchases of Common Stock related to the issuance of Common Stock
under any of the Company's benefit plans for its directors, officers or
employees, (5) as a result of a reclassification of the Company's capital stock
or the exchange or conversion of one series or class of the Company's capital
stock for another series or class of the Company's capital stock and (6) the
purchase of fractional
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interests in shares of the Company's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged).
The Company also covenants with each Holder of the Debentures (i) that for
so long as Preferred Securities are outstanding not to convert the Debentures
except pursuant to a notice of conversion delivered to the Conversion Agent by a
holder of Preferred Securities and (ii) to maintain directly or indirectly 100%
ownership of the Common Securities of the Trust; provided, however, that any
permitted successor of the Company hereunder may succeed to the Company's
ownership of such Common Securities, (iii) not to voluntarily terminate, wind-up
or liquidate the Trust, except (a) in connection with a distribution of the
Debentures to the holders of Preferred Securities in liquidation of the Trust
or (b) in connection with certain mergers, consolidations or amalgamations
permitted by the Trust Agreement and (iv) to use its reasonable efforts,
consistent with the terms and provisions of the Trust Agreement to cause the
Trust to remain a grantor trust and not to be classified as an association
taxable as a corporation for United States Federal income tax purposes.
SECTION 10.9. Registration Rights. The holders of the Preferred
Securities, the Holders, the holders of the Guarantee and the shares of Common
Stock of the Company issuable upon conversion of the Preferred Securities are
entitled to the benefits of a Registration Rights Agreement, dated as of October
20, 1997, among the Company and the Purchasers (the "Registration Rights
Agreement").
SECTION 10.10. Payment of Expenses of the Trust. In connection with the
offering, sale and issuance of the Debentures to the Property Trustee and in
connection with the sale of the Preferred Securities by the Trust, the Company
shall:
(a) pay for all costs, fees and expenses relating to the offering,
sale and issuance of the Preferred Securities (as defined in the Purchase
Agreement), including commissions, discounts and expenses payable pursuant to
the Purchase Agreement and compensation of the Trustee under the Indenture in
accordance with the provisions of Section 6.7 of the Indenture;
(b) be responsible for and pay for all debts and obligations (other
than with respect to the Preferred Securities) of the Trust, pay for all costs
and expenses of the Trust (including, but not limited to, costs and expenses
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relating to the organization of the Trust, the offering, sale and issuance of
the Preferred Securities (including commissions, discounts and expenses in
connection there with), the fees and expenses of the Property Trustee and the
Delaware Trustee, the costs and expenses relating to the operation of the Trust,
including without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the acquisition,
financing, and disposition of Trust assets); and
(c) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
ARTICLE 11
REDEMPTION OR EXCHANGE OF DEBENTURES
SECTION 11.1. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Debentures shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Company, the
Company shall, not less than 45 days prior to the date fixed for redemption
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such date and of the principal amount of Debentures to be
redeemed.
SECTION 11.2. Selection of Debentures to Be Redeemed. If less than all the
Debentures are to be redeemed, the particular Debentures to be redeemed shall be
selected not more than 45 days prior to the Redemption Date by the Trustee from
the Outstanding Debentures not previously called for redemption, by lot or by
such other method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of a portion of the principal amount of
the Debentures Outstanding, provided that the unredeemed portion of the
principal amount of the Debentures be in an authorized denomination (which shall
not be less than the minimum authorized denomination) for the Debentures.
The Trustee shall promptly notify the Company in writing of the Debentures
selected for partial redemption
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and the principal amount thereof to be redeemed. For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to the
redemption of Debentures shall relate, in the case of any Debenture redeemed or
to be redeemed only in part, to the portion of the principal amount of such
Debenture which has been or is to be redeemed. If the Company shall so direct,
Debentures registered in the name of the Company, any Affiliate or any
Subsidiary thereof shall not be included in the Debentures selected for
redemption.
SECTION 11.3. Notice of Redemption. Notice of redemption shall be given by
first-class mail, postage prepaid, mailed not later than the thirtieth day, and
not earlier than the sixtieth day, prior to the date fixed for redemption, to
each Holder of Debentures to be redeemed, at the address of such Holder as it
appears in the Securities Register.
With respect to Debentures to be redeemed, each notice of redemption shall
state:
(a) the Redemption Date;
(b) the redemption price at which the Debentures are to be redeemed
(the "Redemption Price");
(c) if less than all Outstanding Debentures are to be redeemed, the
identification (and, in the case of partial redemption, the respective
principal amounts) of the particular Debentures to be redeemed (including,
if relevant, the CUSIP or ISIN number);
(d) that on the Redemption Date the Redemption Price will become due
and payable upon each such Debenture or portion thereof, and that upon
deposit with the Paying Agent interest thereon, if any, shall cease to
accrue on and after the Redemption Date;
(e) the place or places where the Debentures are to be surrendered
for payment of the redemption price at which the Debentures are to be
redeemed; and
(f) that a Holder of Debentures who desires to convert Debentures
called for redemption must satisfy the requirements for conversion
contained in the Debentures, the then existing conversion price or rate,
and the date and time when the option to convert shall expire.
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Notice of redemption of Debentures to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
The notice if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice. In any case, a failure to give such notice by mail or any defect in the
notice to the Holder of any Debenture designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Debenture.
SECTION 11.4. Deposit of Redemption Price. Prior to 10:00 a.m., New York
City time, on the Redemption Date specified in the notice of redemption given as
provided in Section 11.3, the Company will deposit with the Trustee or with one
or more Paying Agents (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Article 4) an amount of money
sufficient to redeem on the Redemption Date all the Debentures so called for
redemption at the applicable Redemption Price.
If any Debenture called for redemption has been converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held in
trust for the redemption of such Debenture shall (subject to any right of the
Holder of such Debenture or any Predecessor Debenture to receive interest as
provided in the last paragraph of Section 3.7) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such
trust.
SECTION 11.5. Debentures Payable on Redemption Date. If notice of
redemption has been given as provided in Section 11.3, the Debentures so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, including any accrued interest (and any Additional
Interest) thereon, and from and after such date (unless the Company shall
default in the payment of the Redemption Price or any accrued interest on
(including any Additional Interest)) such Debentures shall cease to bear
interest. Upon surrender of any such Debenture for redemp tion in accordance
with said notice, such Debenture shall be paid by the Company at the Redemption
Price, including any accrued interest (and any Additional Interest) to the
Redemption Date, provided, however, that installments of interest on Debentures
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Debentures, or one of more Predecessor Debentures,
registered as such at the close of business on the relevant
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Regular Record Dates or Special Record Dates, as the case may be, according to
their terms and the provisions of Section 3.7.
If any Debenture called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Debenture.
SECTION 11.6. Debentures Redeemed in Part. In the event of any redemption
in part, the Company shall not be required to (i) issue, register the transfer
of or exchange any Debenture during a period beginning at 9:00 a.m. (New York
City time) 15 Business Days before any selection for redemption of Debentures
and ending at 5:00 p.m. (New York City time) on the earliest date in which the
relevant notice of redemption is deemed to have been given to all holders of
Debentures to be so redeemed and (ii) register the transfer of or exchange any
Debentures so selected for redemption, in whole or in part, except for the
unredeemed portion of any Debentures being redeemed in part.
Any Debenture which is to be redeemed only in part shall be surrendered at
the place of payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Debenture without service charge, a new Debenture or Debentures, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Debenture so surrendered. Each Debenture shall be subject to partial
redemption only in the amount of $50 or integral multiples thereof.
The Debentures are not entitled to the benefit of any sinking or like
fund.
SECTION 11.7. Mandatory Redemption. Upon (i) repay ment at maturity or
(ii) as a result of acceleration upon the occurrence of an Event of Default, the
Company shall redeem all the Outstanding Debentures at a redemption price equal
to 100% of the principal amount of such Debentures plus any accrued and unpaid
interest, including any Additional Interest, to the date fixed for redemption.
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SECTION 11.8. Optional Redemption. Except as set forth below, on and after
October 15, 2000 and subject to the next succeeding sentence, the Company shall
have the right, at any time and from time to time, to redeem the Debentures, in
whole or in part, upon notice given as set forth in Section 11.3 during the
twelve-month periods beginning on October 15 in each of the following years at
the indicated Redemption Price (expressed as a percentage of the principal
amount of the Debentures being redeemed), together with any accrued but unpaid
interest on the portion being redeemed:
Redemption Price Redemption Price
Year (% of principal amount) Year (% of principal amount)
---- ----------------------- ---- -----------------------
2000......... 104.2% 2004............. 101.8%
2001......... 103.6% 2005............. 101.2%
2002......... 103.0% 2006............. 100.6%
2003......... 102.4% 2007 and thereafter 100.0%
The Company may not redeem the Debentures in whole or in part unless all
accrued and unpaid interest has been paid in full on all outstanding Debentures
for all quarterly interest periods terminating on or prior to the Redemption
Date.
Upon the occurrence of a Tax Event, the Company shall have the right, upon
not less than 30 nor more than 60 days' notice, to redeem the Debentures in
whole or in part, for cash upon the later of (i) 90 days following the
occurrence of such Tax Event or (ii) October 15, 2000, at a Redemption Price
equal to the principal amount of such Debentures plus any accrued and unpaid
interest, including Additional Interest, to the date fixed for such redemption.
SECTION 11.9. Exchange of Trust Securities for Debentures. (a) At any
time, the Company shall have the right to terminate the Trust and cause the
Debentures to be distributed to the holders of the Preferred Securities in
liquidation of the Trust after satisfaction of liabilities to creditors of the
Trust as provided by applicable law.
(b) If a Special Event in respect of the Trust shall occur, the
Company shall give the Property Trustee notice of the same. If a Special Event
in respect of the Trust shall occur and be continuing, the Trust Agreement
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requires the Property Trustee to direct the Conversion Agent (as defined in the
Trust Agreement) to exchange all outstanding Trust Securities for the Debentures
having a principal amount equal to the aggregate liquidation amount of the Trust
Securities to be exchanged with accrued interest in an amount equal to any
unpaid distributions (including any Additional Amounts) on the Trust Securities
provided that, in the case of a Tax Event, the Company shall have the right to
direct the Property Trustee that less than all, or none of the Trust Securities
be so exchanged (i) if and for so long as the Company shall have elected to pay
any Additional Sums such that the net amounts received by holders of the Trust
Securities not so exchanged in respect of distributions are not reduced as a
result of such Tax Event, and shall not have revoked any such election or failed
to make such payments or (ii) if the Company shall instead elect to redeem the
Debentures, in whole or in part, in the manner set forth in Section 11.8.
ARTICLE 12
SUBORDINATION OF DEBENTURES
SECTION 12.1. Debentures Subordinate to Secured Indebtedness. The Company
covenants and agrees, and each Holder of a Debenture, by its acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter
set forth in this Article, the payment of the principal of (and premium, if any)
and interest (including any Additional Interest) on each and all of the
Debentures are hereby expressly made subordinate and subject in right of payment
to the prior payment in full in cash of all amounts then due and payable in
respect of all Secured Indebtedness (whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed), and that the subordination
is for the benefit of the holders of Secured Indebtedness and that no payment on
account of principal of, premium, if any, or interest on the Debentures and no
acquisition of, or payment on account of any sinking fund for, the Debentures
may be made unless full payment of all amounts then due for principal, premium,
if any, and interest then due on all Secured Indebtedness by reason of the
maturity thereof (by lapse of time, acceleration or otherwise) has been made or
duly provided for in cash or in a manner satisfactory to the holders of such
Secured Indebtedness.
SECTION 12.2. Payment Over of Proceeds Upon Dissolution, Etc. Upon any
distribution of the Company's assets in
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connection with any dissolution, winding up, liquidation or reorganization of
the Company, whether voluntary or involuntary, in bankruptcy, insolvency or
receivership proceedings (each such event, if any, herein sometimes referred to
as a "Proceeding"), or upon an assignment for the benefit of creditors or
otherwise: (i) all Secured Indebtedness (including without limitation all
interest accruing on or after the filing of any petition in bankruptcy relating
to the Company at the relevant contractual rate, whether or not such claim for
post-petition interest is allowed in such proceeding) must be paid in full in
cash before the Holders of the Debentures are entitled to any payments or
distributions of any kind or character (including any payment or distribution
which may be payable or deliverable by reason of the payment of any other Debt
of the Company (including the Debentures) subordinated to the payment of the
Debentures), and (ii) any payment or distribution of the Company's assets of any
kind or character, whether in cash, securities or other property, which would
otherwise (but for these subordination provisions) be payable or deliverable in
respect of the Debentures shall be paid or delivered directly to the holders of
such Secured Indebtedness (or their representative or trustee) in accordance
with the priorities then existing among such holders until all Secured
Indebtedness shall have been paid in full in cash before any payment or
distribution is made to the Holders of the Debentures.
In the event that notwithstanding the subordination provisions set
forth herein, any payment or distribution of assets of any kind or character is
made on the Debentures at a time when the respective payment is not permitted to
be made as a result of the subordination provisions described above and before
all Secured Indebtedness is paid in full in cash, the Trustee or the holders of
the Debentures receiving such payment will be required to pay over such payment
or distribution to the holders of such Secured Indebtedness.
For the purposes of this Article only, the words "any payment or
distribution of any kind or character" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities of the Company
or any other corporation provided for by a plan of reorganization or
readjustment which securities are subordinated in right of payment to all then
outstanding Secured Indebtedness to substantially the same extent as the
Debentures are so subordinated as provided in this Article. The consolidation of
the Company with, or the merger of the
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Company into, another Person or the liquidation or dissolution of the Company
following the sale of all or substantially all of its properties and assets as
an entirety to another Person upon the terms and conditions set forth in Article
8 shall not be deemed a Proceeding for the purposes of this Section if the
Person formed by such consolidation or into which the Company is merged or the
Person which acquires by sale such properties and assets as an entirety, as the
case may be, shall, as a part of such consolidation, merger, or sale comply with
the conditions set forth in Article Eight.
SECTION 12.3. Payment Blockage Upon Acceleration of Designated Senior
Indebtedness, Etc. During the continuance of any event of default with respect
to any Designated Senior Indebtedness pursuant to which the maturity thereof may
be accelerated, upon the occurrence of (a) receipt by the Trustee of written
notice from the holders of a majority of the outstanding principal amount of the
Designated Senior Indebtedness or their representative, or (b) if such event of
default results from the acceleration of the Debentures, the date of such
acceleration, no such payment may be made by the Company upon or in respect of
the Debentures for a period ("Payment Blockage Period") commencing on the
earlier of the date of receipt of such notice or the date of such acceleration
and ending 179 days thereafter (unless such Payment Blockage Period shall be
terminated by written notice to the Trustee from the holders of a majority of
the outstanding principal amount of such Designated Senior Indebtedness or their
representative who delivered such notice); provided, however, that
notwithstanding anything herein to the contrary, in no event will a Payment
Blockage Period extend beyond 179 days from the date on which such Payment
Blockage Period was commenced; provided further, that not more than one Payment
Blockage Period may be commenced with respect to the Debentures during any
period of 360 consecutive days. For all purposes of this Section, no event of
default which existed or was continuing on the date of the commencement of any
Payment Blockage Period with respect to the Designated Senior Indebtedness
initiating such Payment Blockage Period shall be, or be made, the basis for the
commencement of a second payment Blockage Period by the holders of such
Designated Senior Indebtedness or their representative whether or not within a
period of 360 consecutive days unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or any Holder
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of the Debentures prohibited by the foregoing provisions of this Section, and if
such fact shall, at or prior to the time of such payment, have been made known,
as set forth in Section 12.10, to the Trustee or, as the case may be, such
Holder, then and in such event such payment shall be paid over and delivered
forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 12.2 would be applicable.
SECTION 12.4. No Payment When Secured Indebtedness in Default. In the
event and during the continuation of any default in the payment of principal of
(or premium, if any) or interest on, or any other amounts owing with respect to,
any Secured Indebtedness when the same becomes due and payable or in the event
any judicial proceeding shall be pending with respect to any such default, then,
unless and until such default shall have been cured or waived or shall have
ceased to exist, no payment or distribution of any kind or character, whether in
cash, properties or Debentures shall be made by the Company on account of
principal of (or premium, if any) or interest (including any Additional
Interest), if any, on the Debentures or on account of the purchase or other
acquisition of Debentures by the Company or any Subsidiary.
The Company shall give prompt written notice to the Trustee of any
default in payment of principal of or interest on any Secured Indebtedness;
provided that no failure to give such a notice shall have any effect whatsoever
on the subordination provisions described herein.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of the Debentures prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known as set forth in Section 12.10, to the
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 12.2 would be applicable.
SECTION 12.5. Payment Permitted If No Default. Nothing contained in this
Article or elsewhere in this Indenture or in any of the Debentures shall prevent
(a) the Company, at any time except during the pendency of any
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Proceeding referred to in Section 12.2 or under the conditions described in
Sections 12.3 and 12.4, from making payments at any time of principal of (and
premium, if any) or interest on the Debentures, or (b) except with respect to
the payment over provisions of this Article 12, the application by the Trustee
of any money deposited with it hereunder to the payment of or on account of the
principal of (and premium, if any) or interest (including any Additional
Interest) on the Debentures or the retention of such payment by the Holders, if,
at the time of such application by the Trustee, the Trustee did not have actual
knowledge that such payment would have been prohibited by the provisions of this
Article.
SECTION 12.6. Subrogation to Rights of Holders of Secured Indebtedness.
Subject to the payment in full in cash of all Secured Indebtedness, or the
provision for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Secured Indebtedness, the Holders of the
Debentures shall be subrogated to the extent of the payments or distributions
made to the holders of such Secured Indebtedness pursuant to the provisions of
this Article (equally and ratably with the holders of all indebtedness of the
Company which by its express terms is subordinated to Secured Indebtedness of
the Company to substantially the same extent as the Debentures are subordinated
to the Secured Indebtedness and is entitled to like rights of subrogation by
reason of any payments or distributions made to holders of such Secured
Indebtedness) to the rights of the holders of such Secured Indebtedness to
receive payments and distributions of cash, property and securities applicable
to the Secured Indebtedness until the principal of (and premium, if any) and
interest on the Debentures shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Secured
Indebtedness of any cash, property or securities to which the Holders of the
Debentures or the Trustee would be entitled except for the provisions of this
Article, and no payments pursuant to the provisions of this Article to the
holders of Secured Indebtedness by Holders of the Debentures or the Trustee,
shall, as among the Company, its creditors other than holders of Secured
Indebtedness, and the Holders of the Debentures, be deemed to be a payment or
distribution by the Company to or on account of the Secured Indebtedness.
SECTION 12.7. Provisions Solely to Define Relative Rights. The provisions
of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders of the Debentures on the one hand and the
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holders of Secured Indebtedness on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Debentures is intended to or
shall (a) impair, as between the Company and the Holders of the Debentures, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Debentures the principal of (and premium, if any) and interest
(including any Additional Interest) on the Debentures as and when the same shall
become due and payable in accordance with their terms, or (b) affect the
relative rights against the Company of the Holders of the Debentures and
creditors of the Company other than their rights in relation to the holders of
Secured Indebtedness, or (c) prevent the Trustee or the Holder of any Debenture
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture including, without limitation, filing and voting claims in
any Proceeding, subject to the rights, if any, under this Article of the holders
of Secured Indebtedness to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 12.8. Trustee to Effectuate Subordination. Each Holder of a
Debenture by his or her acceptance thereof authorizes and directs the Trustee on
his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination provided in this Article and
appoints the Trustee his or her attorney-in-fact for any and all such purposes.
SECTION 12.9. No Waiver of Subordination Provisions. No right of any
present or future holder of any Secured Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or be otherwise charged with.
SECTION 12.10. Notice to Trustee. The Company shall give prompt written
notice to the Trustee of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of the Debentures.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Debentures, unless and until the
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Trustee shall have received written notice thereof from the Company or a person
representing itself as a holder of Secured Indebtedness or from any trustee,
agent or representative therefor (whether or not the facts contained in such
notice are true).
SECTION 12.11. Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Article 6, and the
Holders of the Debentures shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which a Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Debentures, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Secured
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.
SECTION 12.12. Trustee Not Fiduciary for Holders of Secured Indebtedness.
With respect to the holders of the Secured Indebtedness of the Company, the
Trustee undertakes to perform or observe only such of its obligations and
covenants as are set forth in this Article 12, and no implied covenants or
obligations with respect to the holders of such Secured Indebtedness shall be
read into this Indenture against The Bank of New York and/or the Trustee. The
Bank of New York and/or the Trustee shall not be deemed to owe any fiduciary
duty to the holders of such Secured Indebtedness and, subject to the provisions
of Section 6.3, neither the Trustee (nor The Bank of New York) shall be liable
to the holder of any Secured Indebtedness if it shall pay over or deliver to
Holders, the Company, or any other person, money or assets to which any holder
of such Secured Indebtedness shall be entitled to by virtue of this Article 12
or otherwise.
SECTION 12.13. Rights of Trustee as Holder of Secured Indebtedness;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article with respect to any
Secured Indebtedness which may at any time be held by it, to the same extent as
any other holder of Secured Indebtedness, and, subject to the requirements of
the Trust Indenture Act,
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nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder.
SECTION 12.14. Article Applicable to Paying Agents. In case at any time
any Paying Agent other than the Trustee shall have been appointed by the Company
and be then acting hereunder, the term "Trustee" as used in this Article shall
in such case (unless the context otherwise requires) be construed as extending
to and including such Paying Agent within its meaning as fully for all intent
and purposes as if such Paying Agent were named in this Article in addition to
or in place of the Trustee.
SECTION 12.15. Certain Conversions or Exchanges Deemed Payment. For the
purpose of this Article only, (a) the issuance and delivery of junior securities
upon conversion or exchange of Debentures shall not be deemed to constitute a
payment or distribution on account of the principal of (or premium, if any) or
interest (including any Additional Interest) on the Debentures or on account of
the purchase or other acquisition of Debentures, and (b) the payment, issuance
or delivery of cash (including any payments for fractional shares), property or
securities (other than junior securities) upon conversion or exchange of a
Debenture shall be deemed to constitute payment on account of the principal of
such Debenture. For the purpose of this Section, the term "junior securities"
means (i) shares of any stock of any class of the Company and (ii) securities of
the Company which are subordinated in right of payment to all Secured
Indebtedness which may be outstanding at the time of issuance or delivery of
such securities to substantially the same extent as, or to a greater extent
than, the Debentures are so subordinated as provided in this Article.
SECTION 12.16. Trust Moneys Not Subordinated. Notwithstanding anything
contained herein to the contrary (provided that at the time deposited, such
deposit did not violate any then outstanding Secured Indebtedness), payments
from money or the proceeds of Government Obligations held in trust under Article
4 by the Trustee for the payment of principal of and interest on the Debentures
shall not be subordinated to the prior payment of any Secured Indebtedness or
subject to the restrictions set forth in this Article 12, and none of the
Holders shall be obligated to pay over any such amount to the Company or any
holder of Secured Indebtedness of the Company or any other creditor of the
Company.
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ARTICLE 13
CONVERSION OF DEBENTURES
SECTION 13.1. Conversion Rights. Subject to and upon compliance with the
provisions of this Article, the Deben tures are convertible, at the option of
the Holder, at any time prior to redemption or Maturity, into fully paid and
nonassessable shares of Common Stock of the Company at an initial conversion
rate of 1.7344 shares of Common Stock for each $50 in aggregate principal amount
of Debentures (equal to a conversion price of $28.828 per share of Common
Stock), subject to adjustment as described in this Article 13 (as adjusted the
"Conversion Price"). A Holder of Debentures may convert any portion of the
principal amount of the Debentures into that number of fully paid and
nonassessable shares of Common Stock (calculated as to each conversion to the
nearest 1/100th of a share) obtained by dividing the principal amount of the
Debentures to be converted by the Conversion Price. In case a Debenture or
portion thereof is called for redemption, such conversion right in respect of
the Debenture or portion so called shall expire at the close of business on the
Business Day immediately preceding the corresponding Redemption Date, unless the
Company defaults in making the payment due upon redemption.
SECTION 13.2. Conversion Procedures. (a) In order to convert all or a
portion of the Debentures, the Holder thereof shall deliver to the Property
Trustee, as conversion agent or to such other agent appointed for such purposes
(the "Conversion Agent") an irrevocable Notice of Conversion setting forth the
principal amount of Debentures to be converted, together with the name or names,
if other than the Holder, in which the shares of Common Stock should be issued
upon conversion and, if such Debentures are definitive Debentures, surrender to
the Conversion Agent the Debentures to be converted, duly endorsed or assigned
to the Company or in blank. In addition, a holder of Preferred Securities may
exercise its right under the Trust Agreement to convert such Preferred
Securities into Common Stock by delivering to the Conversion Agent an
irrevocable Notice of Conversion setting forth the information called for by the
preceding sentence and directing the Conversion Agent (i) to exchange such
Preferred Security for a portion of the Debentures held by the Trust (at an
exchange rate of $50 principal amount of Debentures for each Preferred Security)
and (ii) to immediately convert such Debentures, on behalf of such holder, into
Common Stock of the Company pursuant to this Article 13 and, if such Preferred
Securities are in definitive form, surrendering such Preferred Securities,
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duly endorsed or assigned to the Company or in blank. So long as any Preferred
Securities are outstanding, the Trust shall not convert any Debentures except
pursuant to a Notice of Conversion delivered to the Conversion Agent by a holder
of Preferred Securities.
If a Notice of Conversion is delivered on or after the Regular Record Date
and prior to the subsequent Interest Payment Date, the Holder of record on the
Regular Record Date will be entitled to receive the interest paid on the
subsequent Interest Payment Date on the portion of Debentures to be converted
notwithstanding the conversion thereof prior to such Interest Payment Date.
Except as otherwise provided in the immediately preceding sentence, in the case
of any Debenture which is converted, interest whose Stated Maturity is on or
after the date of conversion of such Debenture shall not be payable, and the
Company shall not make nor be required to make any other payment, adjustment or
allowance with respect to accrued but unpaid interest on the Debentures being
converted, which shall be deemed to be paid in full. Each conversion shall be
deemed to have been effected immediately prior to the close of business on the
day on which the Notice of Conversion was received (the "Conversion Date") by
the Conversion Agent from the Holder or from a holder of the Preferred
Securities effecting a conversion thereof pursuant to its conversion rights
under the Trust Agreement, as the case may be. The Person or Persons entitled to
receive the Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such Common Stock as of the
Conversion Date and such Person or Persons will cease to be a record Holder or
record Holders of the Debentures on that date. As promptly as practicable on or
after the Conversion Date, the Company shall issue and deliver at the office of
the Conversion Agent, unless otherwise directed by the Holder or holder in the
Notice of Conversion, a certificate or certificates for the number of full
shares of Common Stock issuable upon such conversion, together with the cash
payment, if any, in lieu of any fraction of any share to the Person or Persons
entitled to receive the same. The Conversion Agent shall deliver such
certificate or certificates to such Person or Persons.
(b) The Company's delivery upon conversion of the fixed number of
shares of Common Stock into which the Debentures are convertible (together with
the cash payment, if any, in lieu of fractional shares) shall be deemed to
satisfy the Company's obligation to pay the principal amount at Maturity of the
portion of Debentures so converted and any unpaid interest (including Additional
Interest and
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Liquidated Damages) accrued on such Debentures at the time of such conversion.
(c) No fractional shares of Common Stock will be issued as a result
of conversion, but in lieu thereof, the Company shall pay to the Conversion
Agent a cash adjustment in an amount equal to the same fraction of the Current
Market Price with respect to such fractional interest on the date on which the
Debentures or Preferred Securities, as the case may be, were duly surrendered to
the Conversion Agent for conversion, and the Conversion Agent in turn will make
such payment, if any, to the Holder of the Debentures or the holder of the
Preferred Securities so converted.
(d) In the event of the conversion of any Debenture in part only, a
new Debenture or Debentures for the unconverted portion thereof will be issued
in the name of the Holder thereof upon the cancellation of the Debenture
converted in part in accordance with Section 3.5.
(e) In effecting the conversion transactions described in this
Section, the Conversion Agent is acting as agent of the holders of Preferred
Securities (in the exchange of Preferred Securities for Debentures) and as agent
of the Holders of Debentures (in the conversion of Debentures into Common
Stock), as the case may be, directing it to effect such conversion transactions.
The Conversion Agent is hereby authorized (i) to exchange Debentures held by the
Trust from time to time for Preferred Securities in connection with the
conversion of such Preferred Securities in accordance with this Article 13 and
(ii) to convert all or a portion of the Debentures into Common Stock and
thereupon to deliver such shares of Common Stock in accordance with the
provisions of this Article 13 and to deliver to the Trust a new Debenture or
Debentures for any resulting unconverted principal amount.
(f) All shares of Common Stock delivered upon any conversion of
Restricted Securities shall bear a Restrictive Securities Legend substantially
in the form of the legend required to be set forth on such Debentures and shall
be subject to the restrictions on transfer provided in such legend and in
Section 3.5 hereof. Neither the Trustee nor the Conversion Agent shall have any
responsibility for the inclusion or content of any such Restrictive Securities
Legend on such Common Stock; provided, however, that the Trustee or the
Conversion Agent shall have provided to the Company or to the Company's transfer
agent for such Common Stock, prior to or concurrently with a request to the
Company to deliver to such Conversion Agent certificates for
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such Common Stock, written notice that the Debentures delivered for conversion
are Restricted Securities.
(g) The Company shall at all times reserve and keep available out of
its authorized and unissued Common Stock, solely for issuance upon the
conversion of the Debentures, such number of shares of Common Stock as shall
from time to time be issuable upon the conversion of all the Debentures then
outstanding. Notwithstanding the foregoing, the Company shall be entitled to
deliver upon conversion of Debentures shares of Common Stock reacquired and held
in the treasury of the Company (in lieu of the issuance of authorized and
unissued shares of Common Stock) so long as any such treasury shares are free
and clear of all liens, charges, security interests or encumbrances. Whenever
the Company issues shares of Common Stock upon conversion of Debentures and the
Company has in effect at such time a share purchase rights agreement under which
holders of Common Stock are issued rights ("Rights") entitling the holders under
certain circumstances to purchase an additional share or shares of stock, the
Company will issue, together with each such share of Common Stock, such number
of Rights (which number may be a fraction) as shall at that time be issuable
with a share of Common Stock pursuant to such share purchase rights agreement.
Any shares of Common Stock issued upon conversion of the Debentures shall be
duly authorized, validly issued and fully paid and nonassessable. The Conversion
Agent shall deliver the shares of Common Stock received upon conversion of the
Debentures to the converting Holder free and clear of all liens, charges,
security interests and encumbrances, except for United States withholding taxes.
The Company shall use its best efforts to obtain and keep in force such
governmental or regulatory permits or other authorizations as may be required by
law, and shall comply with all applicable requirements as to registration or
qualification of the Common Stock (and all requirements to list the Common Stock
issuable upon conversion of Debentures that are at the time applicable), in
order to enable the Company to lawfully issue Common Stock upon conversion of
the Debentures and to lawfully deliver the Common Stock to each Holder upon
conversion of the Debentures.
(h) The Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of
Debentures. The Company shall not, however, be required to pay any tax which may
be payable in respect of any transfer involved in the issue and delivery of
shares of Common Stock in a name other than that in which the Debentures so
converted were registered, and no
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such issue or delivery shall be made unless and until the Person requesting such
issue has paid to the Conversion Agent the amount of any such tax, or has
established to the satisfaction of the Conversion Agent that such tax has been
paid.
(i) Nothing in this Article 13 shall limit the requirement of the
Company to withhold taxes pursuant to the terms of the Debentures or as set
forth in this Agreement or otherwise require the Trustee or the Company to pay
any amounts on account of such withholdings.
SECTION 13.3. Conversion Price Adjustments. The conversion price shall be
subject to adjustment (without duplication) from time to time as follows:
(a) In case the Company shall, while any of the Debentures are
outstanding, (i) pay a dividend or make a distribution with respect to its
Common Stock in shares of Common Stock, (ii) subdivide its outstanding shares of
Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares or (iv) issue by reclassification of its shares of
Common Stock any shares of capital stock of the Company, the conversion
privilege and the Conversion Price in effect immediately prior to such action
shall be adjusted so that the Holder of any Debentures thereafter surrendered
for conversion shall be entitled to receive the number of shares of capital
stock of the Company which he would have owned immediately following such action
had such Debentures been converted immediately prior thereto. An adjustment made
pursuant to this subsection (a) shall become effective immediately after the
record date in the case of a dividend or other distribution and shall become
effective immediately after the effective date in case of a subdivision,
combination or reclassifica tion (or immediately after the record date if a
record date shall have been established for such event). If, as a result of an
adjustment made pursuant to this subsection (a), the Holder of any Debenture
thereafter surrendered for conversion shall become entitled to receive shares of
two or more classes or series of capital stock of the Company, the Board of
Directors (whose determination shall be conclusive and shall be described in a
Board Resolution filed with the Trustee) shall determine the allocation of the
adjusted Conversion Price between or among shares of such classes or series of
capital stock. In the event that such dividend, distribution, subdivision,
combination or issuance is not so paid or made, the Conversion Price shall again
be adjusted to be the Conversion Price which would then be in effect if such
record date had not been fixed.
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(b) In case the Company shall, while any of the Debentures are
Outstanding, issue rights or warrants to all holders of its Common Stock
entitling them (for a period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase shares of Common Stock at a price
per share less than the Current Market Price per share of Common Stock on the
record date mentioned below, the Conversion Price for the Debentures shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of issuance of such
rights or warrants by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of shares which the aggregate offering price of the
total number of shares so offered for subscription or purchase would purchase at
such Current Market Price, and the denominator of which shall be the number of
shares of Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of additional shares of Common Stock offered for
subscription or purchase. Such adjustment shall become effective immediately
after the record date for the determination of stockholders entitled to receive
such rights or warrants. For the purposes of this subsection, the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Company. The Company shall not issue any rights or warrants
in respect of shares of Common Stock held in the treasury of the Company. In
case any rights or warrants referred to in this subsection in respect of which
an adjustment shall have been made shall expire unexercised within 45 days after
the same shall have been distributed or issued by the Company, the Conversion
Price shall be readjusted at the time of such expiration to the Conversion Price
that would have been in effect if no adjustment had been made on account of the
distribution or issuance of such expired rights or warrants.
(c) Subject to the last sentence of this subpara graph, in case the
Company shall, by dividend or otherwise, distribute to all holders of its Common
Stock evidences of its indebtedness, shares of any class or series of capital
stock, cash or assets (including securities, but excluding any rights or
warrants referred to in subparagraph (b), any dividend or distribution paid
exclusively in cash and any dividend or distribution referred to in subparagraph
(a) of this Section 13.4), the Conversion Price shall be reduced so that the
same shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to the effectiveness of the Conversion Price reduction
contemplated by this subparagraph (c) by a fraction, the numerator of
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which shall be the Current Market Price per share of the Common Stock on the
date fixed for the payment of such distribution (the "Reference Date") less the
fair market value (as determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the Board of
Directors), on the Reference Date, of the portion of the evidences of
indebtedness, shares of capital stock, cash and assets so distributed applicable
to one share of Common Stock, and the denominator of which shall be such current
market price per share of the Common Stock, such reduction to become effective
immediately prior to the opening of business on the day following the Reference
Date. In the event that such dividend or distribution is not so paid or made,
the Conversion Price shall again be adjusted to be the Conversion Price which
would then be in effect if such dividend or distribution had not occurred. For
purposes of this subparagraph (c), any dividend or distribution that includes
shares of Common Stock or rights or warrants to subscribe for or purchase shares
of Common Stock shall be deemed instead to be (i) a dividend or distribution of
the evidences of indebtedness, shares of capital stock, cash or assets other
than such shares of Common Stock or such rights or warrants (making any
Conversion Price reduction required by this subparagraph (c)) immediately
followed by (ii) a dividend or distribution of such shares of Common Stock or
such rights or warrants (making any further conversion price reduction required
by subparagraph (a) or (b)), except (A) the Reference Date of such dividend or
distribution as defined in this subparagraph shall be substituted as (x) "the
record date in the case of a dividend or other distribution," and (y) "the
record date for the determination of stockholders entitled to receive such
rights or warrants" and (z) "the date fixed for such determination" within the
meaning of subparagraphs (a) and (b) and (B) any shares of Common Stock included
in such dividend or distribution shall not be deemed outstand ing for purposes
of computing any adjustment of the conversion price in subparagraph (a).
(d) In case the Company shall pay or make a dividend or other
distribution on its Common Stock exclusively in cash (excluding all regular
cash dividends, if the annualized amount thereof per share of Common Stock does
not exceed 12.5% of the current market price per share of the Common Stock on
the trading day immediately preceding the date of declaration of such dividend),
the Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the effectiveness of the Conversion Price reduction contemplated by this
subparagraph (d) by a
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fraction, the numerator of which shall be the Current Market Price per share of
the Common Stock on the date fixed for the payment of such distribution less the
amount of cash so distributed (excluding that portion of such distribution that
does not exceed 12.5% of the Current Market Price per share, determined as
provided above) applicable to one share of Common Stock and the denominator of
which shall be such Current Market Price per share of the Common Stock, such
reduction to become effective immediately prior to the opening of business on
the day following the date fixed for the payment of such distribution; provided,
however, that in the event the portion of the cash so distributed applicable to
one share of Common Stock is equal to or greater than the Current Market Price
per share of the Common Stock on the record date mentioned above (excluding that
portion of such distribution that does not exceed 12.5% of the Current Market
Price per share, determined as provided above), in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder of shares of
Debentures shall have the right to receive upon conversion the amount of cash
such Holder would have received had such Holder converted each share of the
Debentures immediately prior to the record date for the distribution of the cash
(less that portion of such distribution that does not exceed 12.5% of the
Current Market Price per share, determined as provided above). In the event that
such dividend or distribution is not so paid or made, the Conversion Price shall
again be adjusted to be the conversion price which would then be in effect if
such record date had not been fixed.
(e) In case a tender or exchange offer (other than an odd-lot offer)
made by the Company or any Subsidiary of the Company for all or any portion of
the Common Stock shall expire and such tender or exchange offer shall involve
the payment by the Company or such Subsidiary of consideration per share of
Common Stock having a fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors) at the last time (the "Expiration Time")
tenders or exchanges may be made pursuant to such tender or exchange offer (as
it shall have been amended) that exceeds 110% of the Current Market Price per
share of the Common Stock on the trading day next succeeding the Expiration
Time, the Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect immediately prior
to the effectiveness of the Conversion Price reduction contemplated by this
subparagraph (e) by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding (including any tendered or exchanged
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shares) at the Expiration Time (including the Purchased Shares) (as defined
below) multiplied by the Current Market Price per share of the Common Stock on
the Trading Day next succeeding the Expiration Time and the denominator of which
shall be the sum of (x) the fair market value (determined as aforesaid) of the
aggregate consideration payable to stockholders based on the acceptance (up to
any maximum specified in the terms of the tender or exchange offer) of all
shares validly tendered or exchanged and not withdrawn as of the Expiration Time
(the shares deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares") (excluding that portion of such consideration in excess of
the Current Market Price per share that does not exceed 110% of the Current
Market Price per share) and (y) the product of the number of shares of Common
Stock outstanding (less any Purchased Shares) at the Expiration Time and the
Current Market Price per share of the Common Stock on the trading day next
succeeding the Expiration Time, such reduction to become effective immediately
prior to the opening of business on the day following the Expiration Time. In
the event that such tender or exchange offer is not so made, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such record date had not been fixed.
(f) If the distribution date for the Rights of the Company provided
in the Shareholders Rights Plan, as presented constituted or under any similar
plan occurs prior to the Conversion Date, and a Holder of the Debentures who
converts such Debentures after such distribution date is not entitled to receive
the Rights that would otherwise be attached (but for the date of conversion) to
the shares of Common Stock received upon such conversion, then an adjustment
shall be made to the Conversion Price pursuant to clause (ii) of Section 13.4(a)
as if the Rights were being distributed to the common stockholders of the
Company immediately prior to such conversion. If such an adjustment is made and
the Rights are later redeemed, invalidated or terminated, then a corresponding
reversing adjustment shall be made to the Conversion Price, on an equitable
basis, to take account of such event.
(g) The Company shall have the right to reduce from time to time the
Conversion Price by any amount selected by the Company for any period of at
least 30 days, provided, that the Company shall give at least 15 days' notice of
such reduction to the Trustee and the Property Trustee. The Company may, at its
option, make such reductions in the Conversion Price, in addition to those set
forth above in Section 13.4(a), as the Board of Directors
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deems advisable to avoid or diminish any income tax to holders of Common Stock
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes. No adjustment
of the Conversion Price will be made upon the issuance of any shares of Common
Stock pursuant to any present or future plan providing for the reinvestment of
dividends or interest payable on securities of the Company and the investment of
additional optional amounts in shares of Common Stock under any such plan, or
the issuance of any shares of Common Stock or options or rights to purchase such
shares pursuant to any present or future employee benefit plan or program of the
Company or pursuant to any option, warrant, right, or exercisable, exchangeable
or convertible security which does not constitute an issuance to all holders of
Common Stock of rights or warrants entitling holders of such rights or warrants
to subscribe for or purchase Common Stock at less than the Current Market Price.
There shall also be no adjustment of the Conversion Price in case of the
issuance of any Common Stock (or securities convertible into or exchangeable for
Common Stock), except as specifically described above.
(h) If any action would require adjustment of the Conversion Price
pursuant to more than one of the provisions described above, only one adjustment
shall be made and such adjustment shall be the amount of adjustment that has the
highest absolute value to the Holder of the Debentures.
SECTION 13.4. Fundamental Change. (a) In the event that the Company is a
party to any transaction (including, without limitation, a merger other than a
merger that does not result in a reclassification, conversion, exchange or
cancellation of Common Stock), consolidation, sale of all or substantially all
of the assets of the Company, recapitalization or reclassification of Common
Stock (other than a change in par value, or from par value to no par value, or
from no par value to par value or as a result of a subdivision or combination
of Common Stock) or any compulsory share exchange (each of the foregoing being
referred to as a "Transaction"), in each case, as a result of which shares of
Common Stock shall be converted into the right to receive, or shall be exchanged
for, (i) in the case of any Transaction other than a Transaction involving a
Common Stock Fundamental Change (and subject to funds being legally available
for such purpose under applicable law at the time of such conversion),
securities, cash or other property, each Debenture shall thereafter be
convertible into the kind and, in the case of a Transaction which does not
involve a Fundamental Change, amount of securities, cash and other
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property receivable upon the consummation of such Transaction by a holder of
that number of shares of Common Stock into which a Debenture was convertible
immediately prior to such Transaction, or (ii) in the case of a Transaction
involving a Common Stock Fundamental Change, common stock, each Debenture shall
thereafter be convertible (in the manner described herein) into common stock of
the kind received by holders of Common Stock (but in each case after giving
effect to any adjustment discussed in paragraphs (b) and (c) relating to a
Fundamental Change if such Transaction constitutes a Fundamental Change). The
holders of Debentures or Preferred Securities will have no voting rights with
respect to any Transaction described in this section.
(b) If any Fundamental Change occurs, then the Conversion Price in
effect will be adjusted immediately after such Fundamental Change as described
in paragraph (c) below. In addition, in the event of a Common Stock Fundamental
Change, each Debenture shall be convertible solely into common stock of the kind
received by holders of Common Stock as a result of such Common Stock Fundamental
Change.
(c) The Conversion Price in the case of any Transaction involving a
Fundamental Change will be adjusted immediately after such Fundamental Change:
(1) in the case of a Non-Stock Fundamental Change, the
Conversion Price of the Debentures will thereupon become the lower
of (A) the Conversion Price in effect immediately prior to such
Non-Stock Fundamental Change, but after giving effect to any other
prior adjustments, and (B) the result obtained by multiplying the
greater of the Applicable Price or the then applicable Reference
Market Price by a fraction, the numerator of which will be $50 and
the denominator of which will be (x) the amount of the redemption
price for the Debenture if the redemption date were the date of such
Non-Stock Fundamental Change (or, for the period commencing on the
first date of original issuance of the Debentures and through
October 15, 1998, and the twelve-month periods commencing October
15, 1999 and October 15, 2000, the product of 106.0, 105.4 and
104.8, respectively, multiplied by $50) plus (y) any then-accrued
and unpaid interest on the Debentures; and
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(2) in the case of a Common Stock Fundamental Change, the
Conversion Price of the Debentures in effect immediately prior to
such Common Stock Fundamental Change, but after giving effect to any
other prior adjustments, will thereupon be adjusted by multiplying
such Conversion Price by a fraction, the numerator of which will be
the Purchaser Stock Price and the denominator will be the Applicable
Price; provided, however, that in the event of a Common Stock
Fundamental Change in which (A) 100% of the value of the
consideration received by a holder of Common Stock is common stock
of the successor, acquiror, or other third party (and cash, if any,
is paid only with respect to any fractional interests in such common
stock resulting from such Common Stock Fundamental Change) and (B)
all of the Common Stock will have been exchanged for, converted
into, or acquired for common stock (and cash with respect to
fractional interests) of the successor, acquiror, or other third
party, the Conversion Price of the Debentures in effect immediately
prior to such Common Stock Fundamental Change will thereupon be
adjusted by multiplying such Conversion Price by a fraction, the
numerator of which will be one and the denominator of which will be
the number of shares of common stock of the successor, acquiror, or
other third party received by a holder of one share of Common Stock
as a result of such Common Stock Fundamental Change.
SECTION 13.5. Notice of Adjustments of Conversion Price. Whenever the
Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion price and
shall prepare a certificate signed by the Chief Financial Officer or the
Treasurer of the Company setting forth the adjusted conversion price and showing
in reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Trustee, the Conversion Agent and
the transfer agent for the Preferred Securities and the Debentures; and
(b) a notice stating the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall as soon as practicable be
mailed by the Company to all record holders of Preferred Securities and the
Debentures at their last addresses as they appear upon the
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stock transfer books of the Company and the Trust and the Securities Registrar.
SECTION 13.6. Prior Notice of Certain Events.
In case:
(i) the Company shall (A) declare any dividend (or any other
distribution) on its Common Stock, other than (x) a dividend payable in
shares of Common Stock or (y) a dividend payable in cash that would not
require an adjustment pursuant to Section 13.4(c) or (d) or (B) authorize
a tender or exchange offer that would require an adjustment pursuant to
Section 13.4(e);
(ii) the Company shall authorize the granting to all holders
of Common Stock of rights or warrants to subscribe for or purchase any
shares of stock of any class or series or of any other rights or warrants;
(iii) of any reclassification of Common Stock (other than a
subdivision or combination of the outstanding Common Stock, or a change in
par value, or from par value to no par value, or from no par value to par
value), or of any consolidation or merger to which the Company is a party
and for which approval of stockholders of the Company shall be required,
or of the sale or transfer of all or substantially all of the assets of
the Company or of any compulsory share exchange whereby the Common Stock
is converted into other securities, cash or other property; or
(iv) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then the Company shall (A) if any Preferred Securities are outstanding under the
Trust Agreement, cause to be filed with the transfer agent for the Preferred
Securities, and shall cause to be mailed to the holders of record of the
Preferred Securities, at their last addresses as they shall appear upon the
stock transfer books of the Trust or (B) cause to be mailed to all Holders at
their last addresses as they shall appear in the Security Register, at least 15
days prior to the applicable record or effective date hereinafter specified, a
notice stating (x) the date on which a record (if any) is to be taken for the
purpose of such dividend, distribution, rights or warrants or, if a record is
not to be taken, the date as of which the holders of Common Stock of record to
be entitled to such dividend,
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distribution, rights or warrants are to be determined or (y) the date on which
such reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, share exchange, dissolution, liquidation or winding up (but no failure
to mail such notice or any defect therein or in the mailing thereof shall affect
the validity of the corporate action required to be specified in such notice).
SECTION 13.7. Dividend or Interest Reinvestment Plans. Notwithstanding
anything to the contrary in this Article 13, the issuance of any shares of
Common Stock pursuant to any plan providing for the reinvestment of dividends or
interest payable on securities of the Company and the investment of additional
optional amounts in shares of Common Stock under any such plan, and the issuance
of any shares of Common Stock or options or rights to purchase such shares
pursuant to any employee benefit plan or program of the Company or pursuant to
any option, warrant, right or exercisable, exchangeable or convertible security
outstanding as of the date the Debentures were first issued, shall not be deemed
to constitute an issuance of Common Stock or exercisable, exchangeable or
convertible securities by the Company to which any of the adjustment provisions
described above applies. There shall also be no adjustment of the Conversion
Price in case of the issuance of any stock (or securities convertible into or
exchangeable for stock) of the Company except as specifically described in this
Article 13.
SECTION 13.8. Certain Additional Rights. In case the Company shall, by
dividend or otherwise, declare or make a distribution on its Common Stock
referred to in Sec tion 13.4(c) or 13.4(d) (including, without limitation,
dividends or distributions referred to in the last sentence of Section 13.4(c)),
the Holders of the Debentures, upon the conversion thereof subsequent to the
close of business on the date fixed for the determination of stockholders
entitled to receive such distribution and prior to the effectiveness of the
Conversion Price adjustment in respect of such distribution, shall also be
entitled to receive for each share of Common Stock into which the Debentures are
converted, the portion of the shares of Common Stock, rights, warrants,
evidences of indebtedness, shares of capital stock, cash and assets so
distributed applicable to one share of Common Stock; provided, however, that, at
the
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election of the Company (whose election shall be evidenced by a resolution
of the Board of Directors) with respect to all Holders so converting, the
Company may, in lieu of distributing to such Holder any portion of such
distribution not consisting of cash or securities of the Company, pay such
Holder an amount in cash equal to the fair market value thereof (as determined
in good faith by the Board of Directors, whose determination shall be conclusive
and described in a resolution of the Board of Directors). If any conversion of
Debentures described in the immediately preceding sentence occurs prior to the
payment date for a distribution to holders of Common Stock which the Holder of
Debentures so converted is entitled to receive in accordance with the
immediately preceding sentence, the Company may elect (such election to be
evidenced by a resolution of the Board of Directors) to distribute to such
Holder a due ▇▇▇▇ for the shares of Common Stock, rights, warrants, evidences of
indebtedness, shares of capital stock, cash or assets to which such Holder is so
entitled, provided, that such due ▇▇▇▇ (i) meets any applicable requirements of
the principal national securities exchange or other market on which the Common
Stock is then traded and (ii) requires payment or delivery of such shares of
Common Stock, rights, warrants, evidences of indebtedness, shares of capital
stock, cash or assets no later than the date of payment or delivery thereof to
holders of shares of Common Stock receiving such distribution.
SECTION 13.9. Restrictions on Common Stock Issuable Upon Conversion. (a)
Shares of Common Stock to be issued upon conversion of a Debenture in respect of
Restricted Preferred Securities shall bear such restrictive legends as the
Company may provide in accordance with applicable law.
(b) If shares of Common Stock to be issued upon conversion of a
Debenture in respect of Restricted Preferred Securities are to be registered in
a name other than that of the Holder of such Preferred Security, then the Person
in whose name such shares of Common Stock are to be registered must deliver to
the Conversion Agent a certificate satis factory to the Company and signed by
such Person, as to compliance with the restrictions on transfer applicable to
such Preferred Security. Neither the Trustee nor any Conversion Agent or
Registrar shall be required to register in a name other than that of the Holder
shares of Common Stock issued upon conversion of any such Debenture in respect
of such Preferred Securities not so accompanied by a properly completed
certificate.
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SECTION 13.10. Trustee Not Responsible for Determining Conversion Price or
Adjustments. Neither the Trustee nor any Conversion Agent shall at any time be
under any duty or responsibility to any Holder of any Debenture or to any holder
of a Preferred Security to determine whether any facts exist which may require
any adjustment of the Conversion Price, or with respect to the nature or extent
of any such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same. Neither the Trustee nor any Conversion Agent shall be accountable with
respect to the validity or value (or the kind of account) of any shares of
Common Stock or of any securities or property, which may at any time be issued
or delivered upon the conversion of any Debenture; and neither the Trustee nor
any Conversion Agent makes any representation with respect thereto. Neither the
Trustee nor any Conversion Agent shall be responsible for any failure of the
Company to make any cash payment or to issue, transfer or deliver any shares of
Common Stock or stock certificates or other securities or property upon the
surrender of any Debenture for the purpose of conversion, or, except as
expressly herein provided, to comply with any of the covenants of the Company
contained in Article 10 or this Article 13.
* * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
BIG FLOWER HOLDINGS, INC.
By:
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THE BANK OF NEW YORK,
as Trustee
By:
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