<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
ALTERNATIVE LIVING SERVICES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 39-1771281
(State of incorporation or organization) (I.R.S. Employer Identification No.)
450 N. SUNNYSLOPE ROAD 53005
SUITE 300 (Zip code)
BROOKFIELD, WISCONSIN
(Address of principal executive offices)
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If this Form relates to the registration of a class of If this Form relates to the registration of a class of
securities pursuant to Section 12(b) of the Exchange securities pursuant to Section 12(g) of the Exchange Act and
Act and is effective pursuant to General Instruction is effective pursuant to General Instruction A.(d), please
A.(c), please check the following box. [X] check the following box. [ ]
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Securities Act registration statement file number to which this form
relates: 333-39705
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange on which each
Title of each class to be so registered class is to be registered
- --------------------------------------- -------------------------
5.25% Convertible Subordinated American Stock Exchange, Inc.
Debentures due 2002
Securities to be registered pursuant to Section 12(g) of the Act:
Not Applicable
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
The description of the Registrant's 5.25% Convertible Subordinated
Debentures Due 2002 (the "Debentures") to be registered hereunder is contained
in the section entitled "Description of Debt Securities" on pages 9 through 15
of the Registrant's Prospectus dated November 28, 1997 constituting part of the
Registrant's Registration Statement on Form S-3 (No. 333-39705) filed with the
Securities and Exchange Commission on November 6, 1997, as amended by Amendment
No. 1 thereto filed with the Securities and Exchange Commission on November 26,
1997, and as supplemented in the section entitled "Description of Debentures" on
page S-54 through S-59 of the Prospectus Supplement dated December 16, 1997.
Such description is incorporated herein by reference.
Item 2. Exhibits.
The exhibits filed herewith or incorporated herein by reference are
listed on the Exhibit Index at page 4 of this Form 8-A.
2
<PAGE> 3
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, as amended, the Registrant has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
ALTERNATIVE LIVING SERVICES, INC.
Date: December 16, 1997 By: /s/THOMAS E. KOMULA
-------------------------------------------
Thomas E. Komula, Senior Vice President
and Chief Financial Officer
3
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EXHIBIT INDEX
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Sequential Page
at Which Found (or
Incorporated by
Description of Exhibit Reference)
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Exhibit 1.1 Form of Indenture relating to the Debentures
Exhibit 1.2 Form of First Supplemental Indenture relating
to the Debentures.
Exhibit 4.2 Restated Certificate of Incorporation of the *
Registrant (incorporated herein by reference to
Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1 (No. 333-04595) filed with the
Commission on July 30, 1996 (the "Form S-1").
Exhibit 4.3 Certificate of Merger, dated May 24, 1996 (incorporated *
herein by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-3 (No. 333-37737)
filed with the Commission on October 14, 1997
(the "Form S-3")).
Exhibit 4.4 Certificate of Amendment to the Restated Certificate of *
Incorporation, dated August 1, 1996 (incorporated
herein by reference to Exhibit 3.2 to the Form S-3).
Exhibit 4.5 Restated Bylaws of the Registrant *
(incorporated by reference to Exhibit 3.4
to the Registrant's Registration Statement
on Form S-3 (No. 333-39705) filed with the
Commission on November 6, 1997).
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* Incorporated herein by reference as indicated above.
4
<PAGE> 1
EXHIBIT 1.1
ALTERNATIVE LIVING SERVICES, INC.
INDENTURE
Dated as of December 19, 1997
UNITED STATES TRUST COMPANY OF NEW YORK,
AS TRUSTEE
Providing for Issuance of Securities in Series
<PAGE> 2
TABLE OF CONTENTS
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Page
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
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SECTION 1.01 Definitions.......................................................................................... 1
SECTION 1.02 Other Definitions.................................................................................... 4
SECTION 1.03 Incorporation by Reference to Trust Indenture Act.................................................... 5
SECTION 1.04 Rules of Construction................................................................................ 5
ARTICLE 2
THE SECURITIES
SECTION 2.01 Forms Generally...................................................................................... 6
SECTION 2.02 Amount Unlimited; Issuable in Series................................................................. 6
SECTION 2.03 Execution and Authentication......................................................................... 8
SECTION 2.04 Registrar and Agents................................................................................. 8
SECTION 2.05 Paying Agent to Hold Money in Trust.................................................................. 9
SECTION 2.06 Transfer and Exchange................................................................................ 9
SECTION 2.07 Replacement Securities...............................................................................11
SECTION 2.08 Outstanding Securities...............................................................................12
SECTION 2.09 Temporary Securities.................................................................................12
SECTION 2.10 Cancellation.........................................................................................13
SECTION 2.11 Defaulted Interest...................................................................................13
SECTION 2.12 Securityholder Lists.................................................................................13
SECTION 2.13 Persons Deemed Owners................................................................................14
SECTION 2.14 CUSIP Number.........................................................................................14
SECTION 2.15 Provisions in Global Security........................................................................14
ARTICLE 3
REDEMPTION
SECTION 3.01 Right of Redemption..................................................................................15
SECTION 3.02 Selection of Securities to be Redeemed...............................................................16
SECTION 3.03 Notice of Redemption by the Company..................................................................16
SECTION 3.04 Effect of Notice of Redemption.......................................................................17
SECTION 3.05 Deposit of Redemption Price..........................................................................17
SECTION 3.06 Securities Redeemed in Part..........................................................................17
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of the Securities............................................................................18
SECTION 4.02 Commission Reports...................................................................................18
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SECTION 4.03 Waiver of Stay, Extension or Usury Laws..............................................................18
SECTION 4.04 Notice of Default....................................................................................18
SECTION 4.05 Compliance Certificates..............................................................................18
SECTION 4.06 Limitation on Dividends and Other Distributions......................................................19
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge, etc..........................................................................19
SECTION 5.02 Successor Corporation or Trust Substituted...........................................................20
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default....................................................................................20
SECTION 6.02 Acceleration.........................................................................................22
SECTION 6.03 Other Remedies.......................................................................................22
SECTION 6.04 Waiver of Defaults and Events of Default.............................................................23
SECTION 6.05 Control by Majority..................................................................................23
SECTION 6.06 Rights of Holders to Receive Payment.................................................................23
SECTION 6.07 Collection Suit by Trustee...........................................................................23
SECTION 6.08 Trustee May File Proofs of Claim.....................................................................24
SECTION 6.09 Priorities...........................................................................................24
SECTION 6.10 Undertaking for Costs................................................................................25
SECTION 6.11 Limitations on Suits.................................................................................25
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee....................................................................................26
SECTION 7.02 Rights of Trustee....................................................................................27
SECTION 7.03 Individual Rights of Trustee.........................................................................27
SECTION 7.04 Trustee's Disclaimer.................................................................................28
SECTION 7.05 Notice of Defaults...................................................................................28
SECTION 7.06 Reports by Trustee to Holders........................................................................28
SECTION 7.07 Compensation and Indemnity...........................................................................28
SECTION 7.08 Replacement of Trustee...............................................................................29
SECTION 7.09 Successor Trustee by Merger, etc.....................................................................30
SECTION 7.10 Eligibility; Disqualification........................................................................30
SECTION 7.11 Preferential Collection of Claims Against Company....................................................31
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01 Satisfaction, Discharge and Defeasance of the Securities.............................................31
SECTION 8.02 Satisfaction and Discharge of Indenture..............................................................32
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SECTION 8.03 Survival of Certain Obligations......................................................................32
SECTION 8.04 Application of Trust Money...........................................................................32
SECTION 8.05 Paying Agent to Repay Monies Held....................................................................33
SECTION 8.06 Return of Unclaimed Monies...........................................................................33
SECTION 8.07 Reinstatement........................................................................................33
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without Consent of Holders...................................................34
SECTION 9.02 Supplemental Indentures with Consent of Holders......................................................35
SECTION 9.03 Compliance with Trust Indenture Act..................................................................36
SECTION 9.04 Revocation and Effect of Consents....................................................................36
SECTION 9.05 Notation on or Exchange of Securities................................................................37
SECTION 9.06 Effect of Supplemental Indentures....................................................................37
SECTION 9.07 Reference in Securities to Supplemental Indentures...................................................37
ARTICLE 10
CONVERSION OF SECURITIES
SECTION 10.01 Right of Conversion; Conversion Price...............................................................37
SECTION 10.02 Issuance of Shares on Conversion....................................................................38
SECTION 10.03 No Adjustment for Interest or Dividends.............................................................39
SECTION 10.04 Adjustment of Conversion Price......................................................................39
SECTION 10.05 Notice of Adjustment of Conversion Price............................................................42
SECTION 10.06 Notice of Certain Corporate Action..................................................................42
SECTION 10.07 Taxes on Conversions................................................................................43
SECTION 10.08 Fractional Shares...................................................................................43
SECTION 10.09 Cancellation of Converted Securities................................................................44
SECTION 10.10 Provisions in Case of Consolidation, Merger or Sale of Assets.......................................44
SECTION 10.11 Disclaimer by Trustee of Responsibility for Certain Matters.........................................44
SECTION 10.12 Covenant to Reserve Shares..........................................................................45
ARTICLE 11
SUBORDINATION; SENIORITY
SECTION 11.01 Securities Subordinated to Senior Indebtedness......................................................45
SECTION 11.02 Company Not to Make Payments with Respect to Junior Securities in Certain Circumstances.............46
SECTION 11.03 Subrogation of Junior Securities....................................................................48
SECTION 11.04 Authorization by Holders of Junior Securities.......................................................49
SECTION 11.05 Notices to Trustee..................................................................................49
SECTION 11.06 Trustee's Relation to Senior Indebtedness...........................................................50
SECTION 11.07 No Impairment of Subordination......................................................................50
SECTION 11.08 Article 11 Not To Prevent Events of Default.........................................................50
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SECTION 11.09 Paying Agents other than the Trustee................................................................51
SECTION 11.10 Securities Senior to Subordinated Indebtedness......................................................51
ARTICLE 12
SINKING FUND
SECTION 12.01 Mandatory and Optional Sinking Fund Payments........................................................51
SECTION 12.02 Satisfaction of Sinking Fund Payments with Securities...............................................51
SECTION 12.03 Redemption of Securities for Sinking Funds..........................................................52
ARTICLE 13
MISCELLANEOUS
SECTION 13.01 Trust Indenture Act Controls........................................................................53
SECTION 13.02 Notices.............................................................................................53
SECTION 13.03 Communications by Holders with Other Holders........................................................54
SECTION 13.04 Certificate and Opinion as to Conditions Precedent..................................................54
SECTION 13.05 Statements Required in Certificate and Opinion......................................................55
SECTION 13.06 Rules by Trustee and Agents.........................................................................55
SECTION 13.07 Record Date.........................................................................................55
SECTION 13.08 Legal Holidays......................................................................................55
SECTION 13.09 Governing Law.......................................................................................56
SECTION 13.10 No Adverse Interpretation of Other Agreements.......................................................56
SECTION 13.11 No Recourse Against Others..........................................................................56
SECTION 13.12 Successors..........................................................................................56
SECTION 13.13 Multiple Counterparts...............................................................................56
SECTION 13.14 Table of Contents, Headings, etc....................................................................56
SECTION 13.15 Severability........................................................................................56
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CROSS-REFERENCE TABLE
ALTERNATIVE LIVING SERVICES, INC.
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Trust Indenture
Act Section Indenture
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ss.310(a)(1)............................................................................7.10
(a)(2).........................................................................7.10
(a)(3).........................................................................Not Applicable
(a)(4).........................................................................Not Applicable
(a)............................................................................7.10
(b)............................................................................7.08; 7.10
(c)............................................................................Not Applicable
ss.311(a)...............................................................................7.11
(b)............................................................................7.11
(c)............................................................................Not Applicable
ss.312(a)...............................................................................2.12
(b)............................................................................13.03
(c)............................................................................13.03
ss.313(a)...............................................................................7.06
(b)(1).........................................................................Not Applicable
(b)(2).........................................................................7.06
(c)............................................................................7.06; 13.02
(d)............................................................................7.06
ss.314(a)...............................................................................4.02; 13.02
(b)............................................................................Not Applicable
(c)(1).........................................................................13.04
(c)(2).........................................................................13.04
(c)(3).........................................................................Not Applicable
(d)............................................................................Not Applicable
(e)............................................................................13.05
(f)............................................................................Not Applicable
ss.315(a)...............................................................................7.01(b)
(b)............................................................................7.05; 13.02
(c)............................................................................7.01(a)
(d)............................................................................7.01(c); 6.05
(e)............................................................................6.10
ss.316(a)(last sentence)................................................................13.06
(a)(1)(A)......................................................................6.05
(a)(1)(B)......................................................................6.04
(a)(2).........................................................................Not Applicable
(b)............................................................................6.06
(c)............................................................................13.07
ss.317(a)(1)............................................................................6.07
(a)(2).........................................................................6.08
(b)............................................................................2.05
ss.318(a)...............................................................................11.01
(b)............................................................................Not Applicable
(c)............................................................................Not Applicable
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of the Indenture.
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<PAGE> 7
INDENTURE dated as of December 19, 1997 between Alternative Living
Services, Inc., a Delaware corporation ("Company"), and United States Trust
Company of New York ("Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its securities (hereinafter called the
"Securities") evidencing its unsecured indebtedness, to be issued in one or more
fully registered series.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
To set forth or to provide for the establishment of the terms and
conditions upon which the Securities are and are to be authenticated, issued and
delivered, and in consideration of the premises and the purchase of Securities
by the Holders thereof, it is mutually covenanted and agreed as follows, for the
equal and proportionate benefit of all Holders of the Securities or of a series
thereof, as the case may be:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
the purposes of this definition, "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with"), as used
with respect to any Person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities or by agreement
or otherwise.
"Agent" means any Registrar, Paying Agent, Conversion Agent,
co-registrar or agent for service of notices and demands.
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar Federal
or State law for the relief of debtors.
"Board of Directors of the Company" means the Board of Directors of the
Company or any committee of the Board.
"Board Resolution" means a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors of the Company and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
<PAGE> 8
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means any and all shares or other equivalents (however
designated) of capital stock, including all common stock and all preferred
stock.
"Closing Price" means with respect to the shares of common stock of the
Company on any day, (i) the last reported sales price regular way or, in case no
such reported sale takes place on such day, the average of the reported closing
bid and asked prices regular way, in either case on the American Stock Exchange,
or (ii) if the shares of common stock are not listed or admitted to trading on
the American Stock Exchange, the last reported sales price regular way, or in
case no such reported sale takes place on such day, the average of the reported
closing bid and asked prices regular way, on the principal national securities
exchange on which the shares of common stock are listed or admitted to trading,
or (iii) if the shares of common stock are not listed or admitted to trading on
any national securities exchange, the average of the closing bid and asked
prices as furnished by any New York Stock Exchange member firm selected from
time to time by the Company for that purpose.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 114 West 47th Street, 25th Floor, New York, New York 10036.
"Custodian" means any receiver, trustee, liquidator or similar official
under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any series issued
in whole or in part in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 2.02 until a successor Depositary
shall have become such pursuant to the applicable procedures of this Indenture,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one Depositary with
respect to the Securities of any such series, "Depositary" shall mean the
Depositary with respect to the Securities of that series.
"Dollar" or "$" means the lawful money of the United States of America.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Global Security" means a Security in the form prescribed in Section
2.15 evidencing all or part of a Securities, issued to the Depositary for such
series or its nominee, and registered in the name of such Depositary or nominee.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Registrar's books.
"Indebtedness," as applied to any Person, means, without duplication
(i) all indebtedness for borrowed money whether or not evidenced by a promissory
note, draft or similar instrument, (ii) that portion of obligations with respect
to leases that is properly classified as a liability on a balance sheet in
accordance with generally accepted accounting principles, (iii) notes payable
and drafts accepted representing extensions of credit, (iv) any balance owed for
all or any part of the deferred purchase price of property or services, which
purchase price is due more than six months from the date of incurrence of the
obligation in respect thereof (except any such balance that constitutes (a) a
trade payable or an accrued liability arising in the ordinary course of business
or (b) a trade draft or note payable issued in the ordinary course of business
in connection with the purchase of goods or services), if and to the extent such
debt would appear as a liability upon a balance sheet of such Person prepared in
accordance with generally accepted accounting principles, and (v) any deferral,
amendment, renewal, extension, supplement or refunding of any of the foregoing
indebtedness; provided, however, that, in computing the "Indebtedness" of any
Person, there shall be excluded any particular indebtedness if, upon or prior to
the maturity thereof and at the time of determination of such indebtedness,
there shall have been deposited with a depository in trust money (or evidences
of indebtedness if permitted by the instrument creating such indebtedness) in
the necessary amount to pay, redeem or satisfy such indebtedness as it becomes
due, and the amount so deposited shall not be included in any computation of the
assets of such Person.
"Indenture" means this Indenture as originally executed or, if amended
or supplemented as provided in Article 9, as amended or supplemented from time
to time.
"Officer" means the Chairman of the Board, the Chief Executive Officer,
the President, any Senior Vice President, the Treasurer, the Secretary or the
Controller of the Company.
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer, Assistant Secretary or Assistant
Controller of the Company. See Sections 13.04 and 13.05.
"Opinion of Counsel" means a written opinion from Rogers & Hardin LLP.
The counsel may be an employee of or counsel to the Company or the Trustee. See
Sections 13.04 and 13.05.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Principal" of a Security means the principal of the Security plus,
when appropriate, the premium, if any, on the Security.
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"Redemption Date" when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
as specified in such Security.
"Senior Indebtedness" means the principal, premium, if any, and unpaid
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not a claim
for post-filing interest is allowed in such proceeding), fees, charges,
expenses, reimbursement and indemnification obligations, and all other amounts
payable under or in respect of Indebtedness of the Company for money borrowed,
whether any such Indebtedness exists as of the date of this Indenture or shall
hereafter be created, incurred, assumed or guaranteed (other than (i)
Indebtedness owed to a subsidiary of the Company, (ii) Indebtedness which is
expressly par passu to the Securities, (iii) Subordinated Indebtedness, (iv) the
Company's 7% Convertible Subordinated Debentures due 2004 or (v) the Company's
6.75% Convertible Subordinated Debentures due 2006).
"Subordinated Indebtedness" means the principal, premium, if any, and
interest on any Indebtedness of the Company which by its terms is expressly
subordinated in right of payment to the Securities.
"Subsidiary" means a corporation the majority of whose voting stock is
owned by the Company or a subsidiary of the Company. Voting stock is Capital
Stock having voting power under ordinary circumstances to elect directors.
"Trust Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any senior vice president, any
vice-president, any assistant vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any Trust Officer or assistant Trust Officer, the controller or any
assistant controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer of the Trustee to whom such matter is referred because of his knowledge
of and familiarity with the particular subject.
"United States" means the United States of America.
SECTION 1.02 Other Definitions.
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Term Defined in Section
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"Company
"Order" 2.03
"Conversion Agent" 2.04
"conversion price" 10.01
"current market price" 10.04
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"Event of Default" 6.01
"Junior Securities" 11.01
"Legal Holiday" 13.08
"mandatory sinking fund payments" 12.01
"Market Price" 3.01
"optional sinking fund payments" 12.01
"Paying Agent" 2.04
"Payment or Distribution" 11.01
"Redemption Price" 3.01
"Registrar" 2.04
"Rule 13e-3 Transaction" 10.06
"Securities" Recitals
"TIA" 1.03
"U.S. Government Obligations" 8.01
</TABLE>
SECTION 1.03 Incorporation by Reference to Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture
Act of 1939 (the "TIA"), the provision is incorporated by reference in and made
a part of this Indenture. The following TIA terms used in this Indenture have
the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture. "indenture trustee"
or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the indenture securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rules have
the meanings assigned to them therein.
SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with United States generally accepted accounting principles
in effect as of the time as to which such accounting principles are to be
applied;
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<PAGE> 12
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and in the plural include
the singular.
ARTICLE 2
THE SECURITIES
SECTION 2.01 Forms Generally.
The Securities of each series shall be in substantially the form
(including any global form that is not inconsistent with this Indenture) as
shall be established from time to time by or pursuant to a Board Resolution or
in one or more indentures supplemental hereto, in each case with such variations
as are required or permitted by this Indenture (including such other provisions
as are necessary to reflect the global form of any Security, and the designation
of a Depositary for such Global Security) and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Indenture, as may be required to comply with any law or with any rules
of any securities exchange or to conform to general usage, all as may be
determined by the officers executing such Securities as evidenced by their
execution of the Securities.
SECTION 2.02 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all other
Securities);
(2) the limit, if any, upon the aggregate principal
amount of the Securities of the series which may be
authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to this Indenture);
(3) the date or dates on which the principal of (and
premium, if any, on) the Securities of the series is payable;
(4) the rate or rates, if any, at which the
Securities of the series shall bear interest (or the method of
determining such rate or rates), the date or dates from which
such interest shall accrue, date or dates on which such
interest shall be payable and the record date or dates for the
interest payable;
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<PAGE> 13
(5) the place or places where the principal of (and
premium, if any) and interest on Securities of the series
shall be payable;
(6) the period or periods within which or the date
or dates on which, if any, the price or prices at which and
the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the
Company;
(7) the obligation, if any, of the Company to
redeem, repay or purchase Securities of the series pursuant
to any sinking fund or analogous provisions or at the option
of a Securityholder thereof and the period or periods within
which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant
to such obligation;
(8) the price at which Securities of any one series
are or may be converted into shares of Capital Stock of the
Company, the period during which such conversion right may be
exercised and any other terms or conditions of such
conversion;
(9) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series
which shall be payable upon declaration of acceleration of the
maturity thereof;
(10) whether any Securities of the series are to be
issued in whole or in part in the form of one or more Global
Securities and, if so, the Depositary for such Global Security
or Securities (which Depositary shall be, if then required by
applicable law or regulation, a clearing agency registered
under the Exchange Act and any other applicable statute or
regulation) and whether beneficial owners of interests in such
Global Security or Securities may exchange such interests for
Securities of such series and any authorized form and
denomination of such Securities and the circumstances under
which any such exchanges may occur (if other than in the
manner provided in Section 2.06);
(11) the identity of each Paying Agent, Conversion
Agent and Registrar (each as defined in Section 2.04) for the
Securities of such series; and
(12) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution and set forth in such Officers' Certificate
or in any such indenture supplemental hereto.
If any of the terms of a series of Securities are established
by action taken pursuant to a Board Resolution, a copy of an appropriate record
of such action shall be certified
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by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery to the Trustee of the Officers' Certificate
or supplemental indenture setting forth the terms of the series.
SECTION 2.03 Execution and Authentication.
Two Officers shall sign the Securities for the Company by
manual or facsimile signature. The Company's seal shall be impressed, affixed,
imprinted or reproduced on the Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall nevertheless be valid.
A Security shall not be valid until the Trustee manually signs
the certificate of authentication on the Security. Such signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate Securities for original issue
upon written order or orders of the Company signed by two Officers or by an
Officer and an Assistant Treasurer of the Company (a "Company Order").
The Trustee may appoint an authenticating agent to
authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
The Securities may be issued in registered form without
coupons. The Securities shall be issuable only in denominations of $1,000
principal amount and any integral multiple thereof.
The Trustee shall inform the Depositary with respect to the
Securities of any series that the Trustee has endorsed pursuant to the
provisions of Section 2.15.
SECTION 2.04 Registrar and Agents.
The Company shall maintain an office or agency where
Securities of any series may be presented for registration of transfer or for
exchange ("Registrar"), an office or agency where Securities of any series may
be presented for payment ("Paying Agent"), an office or agency where Securities
of any series may be presented for conversion ("Conversion Agent") and an office
or agency where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Registrar shall keep a register
of the Securities of each series and of their transfer and exchange. The Company
may have one or more co-registrars, one or more additional Paying Agents and one
or more additional Conversion Agents. The Company or any Subsidiary may act as
Paying Agent and/or Conversion Agent. The term
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"Paying Agent" includes any additional paying agent and the term "Conversion
Agent" includes any additional conversion agent.
The Company may change any Paying Agent, Registrar, Conversion
Agent or Co-Registrar on sixty (60) days' prior written notice to the Trustee.
The Company shall notify the Trustee in writing of the name and address of any
such Agent. If the Company fails to maintain a Registrar, Paying Agent,
Conversion Agent or agent for service of notices and demands, or fails to give
the foregoing notice, the Trustee shall act as such.
The Company and the Trustee initially appoint the Trustee as
Registrar, Paying Agent, Conversion Agent and agent for service of notices and
demands.
SECTION 2.05 Paying Agent to Hold Money in Trust.
Prior to each due date of the principal of, premium if any,
and interest on any Securities of any series, the Company shall deposit with
each Paying Agent a sum sufficient to pay such principal, premium, if any, and
interest so becoming due. The Company shall require each Paying Agent other than
the Trustee to agree in writing that it will hold in trust for the benefit of
Holders of Securities of any series or the Trustee all money held by the Paying
Agent for the payment of principal of, premium if any, or interest on the
Securities of such series and to notify the Trustee in writing of any default by
the Company (or any other obligor on the Securities of such series) in making
any such payment. If the Company or a Subsidiary acts as Paying Agent, it shall
on or before each due date of the principal of, premium, if any, or interest on
any Securities of any series segregate the money and hold it as a separate trust
fund. The Company at any time may require a Paying Agent to pay all money held
by it to the Trustee and the Trustee may at any time during the continuance of
any payment default, upon written request to a Paying Agent, require such Paying
Agent to forthwith pay to the Trustee all sums so held in trust by such Paying
Agent. Upon doing so, the Paying Agent (other than the Company or a Subsidiary
thereof) shall have no further liability for the money.
SECTION 2.06 Transfer and Exchange.
(a) When a Security of any series is presented to the
Registrar or a co-registrar with a request to register the transfer, the
Registrar or co-registrar shall register the transfer as requested and when
Securities of any series are presented to the Registrar or a co-registrar with a
request to exchange them for a like aggregate principal amount of Securities of
such series in other authorized denominations, the Registrar shall make the
exchange as requested, provided that every Security presented or surrendered for
registration or transfer or exchange shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Registrar duly executed by the Holder thereof or his attorney-in-fact duly
authorized in writing. To permit registrations of transfers and exchanges, the
Company shall issue and the Trustee or any authenticating agent shall
authenticate Securities of such series at the Registrar's or co-registrar's
written request. No service charge shall be made for any registration of
transfer or exchange of Securities but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto,
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but this provision shall not apply to any exchange pursuant to Section 2.09,
3.06, 9.05 or 10.02 not involving any transfer.
Unless and until a Global Security is exchanged in whole or in
part for Securities in definitive form in accordance with the provisions of this
Indenture, a Global Security may not be transferred, except as a whole, by the
Depositary to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor of such Depositary or nominee. Unless otherwise
provided as contemplated by Section 2.02 of this Indenture, the Depositary may
not sell, assign, transfer or otherwise convey any beneficial interest in a
Global Security evidencing all or part of the Securities of such series unless
such beneficial interest is in an amount equal to an authorized denomination for
Securities of such series.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of such series of any authorized denominations
and of a like aggregate principal amount, upon surrender to the Registrar or a
co-registrar of the Securities to be exchanged. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
(b) The Registrar shall not be required (i) to issue, register
the transfer of, or exchange Securities of any series during a period beginning
at the opening of business 15 days before the day of any selection of Securities
of such series for redemption under Section 3.02 and ending at the close of
business on the day of selection, (ii) to register the transfer or exchange of
any Security of any series so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part, or (iii)
to register the transfer or exchange of any Securities of any series during a
period beginning at the opening of business 15 days before the day of any
selection of Securities of such series for redemption under Section 3.02 and
ending at the close of business on the day interest is to be paid on Securities
of such series.
(c) If at any time the Depositary for any Securities of a
series issued in the form of one or more Global Securities notifies the Company
that it is unwilling or unable to continue as Depositary for such Securities or
if at any time the Depositary for the Securities of such series shall no longer
be eligible under Section 2.02 of this Indenture, the Company shall appoint a
successor Depositary with respect to such Securities. If a successor Depositary
for such Securities is not appointed by the Company within ninety (90) days
after the Company receives such notice or becomes aware of such ineligibility,
the Company's election to issue Global Securities pursuant to Section 2.02 shall
no longer be effective with respect to such Securities and the Company will
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Securities of such series, will authenticate
Securities of such series in definitive form, in authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities in exchange for such Global Security or Securities and deliver
such definitive Securities to the Securityholders of such series.
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The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. The Company shall notify the Depositary and the Trustee of the date
and time of such exchange in a Company Order. The Depositary shall surrender the
Global Securities to the Trustee as the Company's agent for such purpose as
shall be specified in the Company Order. The Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, Securities
of such series in definitive form, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities in exchange for such Global Security or Securities.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 2.02 of this Indenture, any Global Security shall be
exchangeable only as provided in this paragraph. If the owners of beneficial
interests in a Global Security of any series are entitled to exchange such
interests for Securities of such series, as may be specified in accordance with
Section 2.02 of this Indenture, then without unnecessary delay upon receipt of
notice therefrom so specified as contemplated by Section 2.02 of this Indenture
but in any event not later than one business day prior to the earliest date on
which such interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities of such series, in authorized denominations, and
in aggregate principal amount equal to the principal amount of such Global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such Global Security shall be surrendered by the
Depositary as shall be specified in the Company Order with respect thereto to
the Trustee, as the Company's agent for such purpose, to be exchanged, in whole
or from time to time in part, for definitive Securities of such series, without
charge, and the Trustee shall authenticate and deliver, in exchange for each
portion of such Global Securities, a like aggregate principal amount of
definitive Securities of the same series in authorized denominations as the
portion of such Global Securities to be so exchanged; provided, however, that no
such exchanges may occur for a period of 15 days immediately preceding the date
notice is received by the Company requesting such changes.
SECTION 2.07 Replacement Securities.
If a mutilated Security of any series is surrendered to the
Trustee or if the Holder of a Security of any series presents evidence to the
satisfaction of the Company and the Trustee that the Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security of such series if the requirements of the
Trustee and the Company are met. An indemnity bond may be required by the
Company or the Trustee that is sufficient in the judgment of the Company to
protect the Company and is sufficient in the judgment of the Trustee to protect
the Trustee or any Agent from any loss which it may suffer if a Security of such
series is replaced. The Company may charge for its expense in replacing a
Security.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its sole
discretion may, instead of issuing
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a new Security, pay or authorize the payment or convert or authorize the
conversion of such Security.
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
SECTION 2.08 Outstanding Securities.
Securities of any series outstanding at any time are all
Securities of such series authenticated by the Trustee except for those canceled
by it, those delivered to it for cancellation and those described in this
Section 2.08 as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company or a Subsidiary)
holds on a Redemption Date or maturity date money deposited with it by or on
behalf of the Company sufficient to pay the principal of and accrued interest on
Securities of any series payable on that date, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the
Company or an Affiliate holds the Security.
SECTION 2.09 Temporary Securities.
Until definitive Securities of any series are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Securities of such series. Temporary Securities of any series shall be
substantially in the form of definitive Securities of such series but may have
non-material variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Securities of any series in exchange for
temporary Securities of such series upon written order of the Company signed by
two Officers. Until so exchanged, temporary Securities of any series represent
the same rights as definitive Securities of such series. Upon request of the
Trustee, the Company shall provide a certificate to the effect that the
temporary Securities of any series meet the requirements of the second sentence
of this Section 2.09.
SECTION 2.10 Cancellation.
The Company at any time may deliver Securities of any series
to the Trustee for cancellation. The Registrar, the Paying Agent and the
Conversion Agent shall forward to the
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Trustee any Securities surrendered to them for transfer, exchange, payment or
conversion. The Trustee shall cancel all Securities surrendered for transfer,
exchange, payment or conversion and destroy canceled Securities in accordance
with its customary destruction procedures and deliver a certificate of such
destruction to the Company unless the Company; by written order signed by two
officers of the Company, directs the Trustee in writing prior to such
destruction to deliver canceled Securities to the Company. Subject to Sections
2.07, 3.06 and the second paragraph of Section 10.02, the Company may not issue
Securities to replace Securities that it has previously paid or delivered to the
Trustee for cancellation or that a Securityholder has converted pursuant to
Article 10 hereof.
SECTION 2.11 Defaulted Interest.
If the Company defaults in a payment of interest on Securities
of any series, it shall pay the defaulted interest to the Persons who are
Holders of the Securities of such series on a subsequent special record date.
After the deposit by the Company with the Trustee of money sufficient to pay
such defaulted interest, the Trustee shall fix the record date and payment date.
Each such special record date shall be not less than 10 days prior to such
payment date. Each such payment date shall be not more than 60 days after the
deposit by the Company of money to pay the defaulted interest. At least 15 days
before the special record date, the Company shall mail to each Holder of a
Security of such series a notice that states the special record date, the
payment date, and the amount of defaulted interest to be paid. The Company may
pay defaulted interest in any other lawful manner if, after prior notice to the
Trustee, such payment shall be deemed operationally practicable by the Trustee.
SECTION 2.12 Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders of Securities of each series. If the Trustee is not the
Registrar, the Company or other obligor, if any, shall furnish to the Trustee at
least seven Business Days prior to each semiannual interest payment date and at
such other times as the Trustee may request in writing a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of Holders of Securities of each series upon which the Trustee may conclusively
rely. The Trustee may destroy any such list upon receipt of a replacement list.
The Paying Agent will solicit from each Securityholder a certification of social
security number or taxpayer identification number in accordance with its
customary practice and as required by law, unless the Paying Agent is in
possession of such certification. Each Paying Agent is authorized to impose
back-up withholding with respect to payments to be made to Securityholders to
the extent required by law.
SECTION 2.13 Persons Deemed Owners.
Prior to presentment of a Security of any series for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security is registered as
the owner of such Security and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
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SECTION 2.14 CUSIP Number.
The Company may use a "CUSIP" number when issuing Securities
of any series, and if so, the Trustee may use the CUSIP number in notices of
redemption or exchange as a convenience to Holders of Securities of such series;
provided, that any such notice may state that no representation is made as to
the correctness or accuracy of the CUSIP number printed in the notice or on the
Securities, and that reliance may be placed only on the other identification
numbers printed on the Securities.
SECTION 2.15 Provisions in Global Security.
(a) If Securities of a series are issuable in whole or in part
as Global Securities, as may be specified in accordance with Section 2.02 of
this Indenture, then in accordance with any such Global Security, such Global
Security may represent such of the outstanding Securities of such series as
shall be specified therein and may also provide that it represents the aggregate
principal amount of outstanding Securities from time to time endorsed thereon
and that the aggregate principal amount of outstanding Securities represented
thereby may from time to time be reduced to reflect exchanges. Global Securities
may be permanent or temporary. Any endorsement of a Global Security to reflect
the amount, or any increase or decrease in the principal amount, of outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee and the Depositary
pursuant to Section 2.03 or Section 2.09. Subject to the provisions of Section
2.03 and, if applicable, Section 2.09, the Depositary shall deliver and
redeliver any permanent Global Security in the manner and upon written
instructions given by the Person or Persons specified therein or in the
applicable Company Order.
(b) Notwithstanding the other provisions of this Indenture,
unless otherwise specified in accordance with Section 2.02, payment of principal
of (and premium, if any) and interest, if any, on any permanent Global
Securities shall be made directly to owners of beneficial interest of such
Global Security.
(c) Notwithstanding the provisions of Section 2.13 of this
Indenture, the Company, the Trustee and any agent of the Company or the Trustee
shall treat the owners of beneficial interest of such Global Security as the
Holders of such principal amounts of outstanding Securities represented by a
Global Security as shall be specified in writing by the Depositary and delivered
to the Company and the Trustee with respect to such Global Security only for
purposes of obtaining any consents or directions required to be given by the
Holders pursuant to this Indenture.
(d) Unless otherwise provided as contemplated by Section 2.02,
a Global Security of any series shall provide, in addition to the provisions
established pursuant to Sections 2.01, 2.02 and 2.15(a) through (c), that the
Depositary will not sell, assign, transfer or otherwise convey any beneficial
interest in such Global Security unless such beneficial interest is in an amount
equal to an authorized denomination for Securities of such series, and the
Depository, by accepting such Global Security, agrees to be bound by such
provision. Any Global Security shall
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also contain such other provisions as are necessary to reflect the global form
of such Security and the designation of a Depositary for such Global Security.
ARTICLE 3
REDEMPTION
SECTION 3.01 Right of Redemption.
(a) The Company may, at its option, redeem Securities of any
series as permitted or required by the terms of such Securities, which
redemption shall be made in accordance with the terms of such Securities and
this Article. The purchase price for Securities of any series redeemed pursuant
the immediately preceding sentence (the "Redemption Price") shall be equal to
the lesser of (i) the Market Price on the date the Company mails the notice of
redemption required under Section 3.03 and (ii) 100% of the principal amount
thereof, in each case together with accrued interest, if any. For purposes of
the preceding sentence, the "Market Price" means, with respect to the Securities
of any series on any day, (x) the last reported sale price regular way or, in
case no such reported sale takes place on such day, the average of the reported
closing bid and asked prices regular way, in either case on the American Stock
Exchange, or (y) if the Securities of such series are not listed or admitted to
trading on the American Stock Exchange, the last reported sale price regular
way, or in case no such reported sale takes place on such day, the average of
the reported closing bid and asked prices regular way, on the principal national
securities exchange on which the Securities of such series are listed or
admitted to trading, or (z) if the Securities of such series are not listed or
admitted to trading on any national securities exchange, the average of the
closing bid and asked prices as furnished by any New York Stock Exchange member
firm selected from time to time by the Company for that purpose. The election of
the Company to redeem any Securities pursuant to this Section shall be evidenced
by a Board Resolution. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and, in
the case of any redemption at the election of the Company of less than all the
Securities of any series, of the principal amount of Securities of that series
to be redeemed.
(b) If the Company wants to redeem the Securities of any
series pursuant to the redemption provisions of the Securities of such series,
it shall notify the Trustee of the Redemption Date and the principal amount of
Securities of such series to be redeemed. The notice shall be in writing and
accompanied by an Officers' Certificate stating that the redemption complies
with the provisions of this Indenture and the provisions of the applicable Board
Resolution, if any, and in the Securities of such series.
The Company shall give each notice provided for in this
Section 3.01 in writing and at least 45 but not more than 90 days before the
Redemption Date or such other period as the Company and the Trustee may agree.
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SECTION 3.02 Selection of Securities to be Redeemed.
If any part of a series of Securities is to be redeemed, the
Trustee shall select the Securities of such series to be redeemed pro rata or by
lot. The Trustee shall promptly notify the Company of the Securities of such
series to be so called for redemption. The Trustee shall make the selection from
Securities of such series outstanding and not previously called for redemption.
The Trustee may select for redemption portions of the principal of Securities
that have denominations larger than $1,000 principal amount. Securities and
portions of them it selects shall be in principal amounts of $1,000 or multiples
thereof. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The
Trustee's selection of Securities for redemption by any method authorized by
this Section 3.02 shall be conclusively deemed reasonable.
SECTION 3.03 Notice of Redemption by the Company.
At least 30 days but not more than 60 days before a Redemption
Date with respect to Securities of any series, the Company shall mail a notice
of redemption by first-class mail to each Holder of Securities of such series to
be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent and the
Conversion Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the
redemption price;
(5) that interest on Securities called for redemption
ceases to accrue on and after the Redemption Date;
(6) if any Security is being redeemed in part, the
portion of the principal amount of such Security to
be redeemed and that, after the Redemption Date, upon
surrender of such Security, a new Security or
Securities of the same series in principal amount
equal to the unredeemed portion thereof will be
issued; and
(7) any conversion rights with respect to the Securities
and the applicable procedures required to be followed
in connection with a conversion of Securities.
At the Company's written request, the Trustee shall give the
notice of redemption in the Company's name and at the Company's expense. If a
CUSIP number is listed in such
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notice or printed on the Security, the notice shall state that no representation
is made as to the correctness or accuracy of such CUSIP number.
SECTION 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for
redemption become due and payable on the applicable Redemption Date and at the
applicable Redemption Price. Upon surrender to the Paying Agent, such Securities
shall be paid at the Redemption Price, plus accrued interest to the Redemption
Date.
ECTION 3.05 Deposit of Redemption Price.
On or before the Redemption Date with respect to any series of
Securities, the Company shall deposit with the Paying Agent (or if the Company
or a Subsidiary is the Paying Agent, shall segregate and hold in trust or cause
such Subsidiary to segregate and hold in trust) in immediately available funds
money sufficient to pay the Redemption Price of and accrued interest on all
Securities of such series to be redeemed on that date. The Trustee or the Paying
Agent shall return to the Company any money so received not required for that
purpose.
ECTION 3.06 Securities Redeemed in Part.
Upon surrender of a Security of any series that is redeemed in
part, the Trustee shall authenticate for the Holder, at the expense of the
Company, a new Security of such series equal in principal amount to the
unredeemed portion of the Security surrendered. If a Global Security is so
surrendered, such new Security so issued shall be a new Global Security.
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of the Securities.
The Company shall pay the principal of, premium, if any, and
interest on the Securities of any series on the dates and in the manner provided
in the Securities of such series and this Indenture. An installment of
principal, premium, if any, or interest shall be considered paid on the date it
is due if the Trustee or Paying Agent (other than the Company or a Subsidiary)
holds on that date money designated for and sufficient to pay the installment.
The Company shall pay interest on overdue principal and premium, if any, at the
rate borne by the Security; it shall pay interest, including post-petition
interest in the event of a proceeding under the Bankruptcy Laws, on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02 Commission Reports.
The Company shall file with the Trustee, promptly after it
files them with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may by rules and
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regulations prescribe) which the Company is required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act. The Company shall also
comply with the other provisions of TIA ss.314(a).
So long as the Securities remain outstanding, the Company
shall cause its annual reports to shareholders (containing audited financial
statements) and any other financial reports furnished by it to shareholders to
be mailed to the Holders at their addresses appearing in the register of
Securities maintained by the Registrar.
SECTION 4.03 Waiver of Stay, Extension or Usury Laws.
The Company expressly waives (to the extent that it may
lawfully do so) any stay or extension law or any usury law or other law that
would prohibit or forgive the Company from paying all or any portion of the
principal of (premium, if any) or interest on Securities of any series as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
that may affect the covenants or the performance of this Indenture.
SECTION 4.04 Notice of Default.
The Company will, so long as any Securities of any series are
outstanding, deliver to the Trustee, within 10 days of becoming aware of any
Default or Event of Default in the performance of any covenant, agreement or
condition in this Indenture, an Officers' Certificate specifying such Default or
Event of Default.
ECTION 4.05 Compliance Certificates.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company (which as of the date hereof is
December 31), a written statement signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company,
stating, as to each signer thereof, that
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his supervision and
(2) to the best of his knowledge, based on such review, the
Company has kept, observed, performed and fulfilled in all material respects
each and every condition and covenant contained in this Indenture throughout
such year, or, if there has been a default in the fulfillment of any such
condition or covenant, specifying each such default known to him and the nature
and status thereof.
The Company will give the Trustee written notice of a change
in the fiscal year of the Company, within a reasonable time after such change is
effected.
SECTION 4.06 Limitation on Dividends and Other Distributions.
The Company will not declare or pay any dividends or make any
distribution to holders of its Capital Stock (other than dividends or
distributions payable in Capital Stock of the
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Company), or purchase, redeem or otherwise acquire or retire for value any of
its Capital Stock or permit any Subsidiary to purchase, redeem or otherwise
acquire or retire for value any of the Company's Capital Stock if at the time of
any of the aforementioned actions an Event of Default has occurred and is
continuing or would exist immediately after giving effect to such action.
Notwithstanding the foregoing, the provisions of this Section
4.06 will not prevent (i) the payment of any dividend within 60 days after the
date of declaration when the payment would have complied with the foregoing
provisions on the date of declaration; or (ii) the retirement of any share of
the Company's Capital Stock by exchange for, or out of the proceeds of the
substantially concurrent sale (other than to a Subsidiary) of, other shares of
its Capital Stock.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge, etc.
The Company shall not consolidate with or merge into, or
transfer all or substantially all of its assets to, another Person in any
transaction in which the Company is not the continuing or surviving entity
unless (i) the resulting, surviving or transferee Person (or the parent
corporation of such Person in the case of a triangular merger) is a corporation
or trust which assumes by supplemental indenture all the obligations of the
Company under the Securities of each series and this Indenture; (ii) such
corporation or trust is organized and existing under the laws of the United
States, a State thereof or the District of Columbia although it in turn may be
owned by a foreign entity; (iii) immediately after giving effect to such
transaction no Default or Event of Default shall have happened and be
continuing, and the Officers' Certificate referred to in the following clause
reflects that such Officers are not aware of any such Default or Event of
Default that shall have happened and be continuing, and (iv) the Company shall
have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture comply with this Indenture, and thereafter all
obligations of the Company shall terminate.
SECTION 5.02 Successor Corporation or Trust Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company in accordance with Section 5.01,
the successor corporation or trust formed by such consolidation or into which
the Company is merged (or the parent company of such successor or surviving
corporation in the case of a triangular merger in which the Company is a
constituant corporation) or to which such transfer is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation or trust
had been named as the Company herein.
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ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.
An "Event of Default" occurs if, with respect to any series of
Securities:
(1) the Company defaults in the payment of interest
on any Security of such series when the same becomes due and
payable and the default continues for a period of 30 days;
(2) the Company defaults in the payment of the
principal of (and premium, if any, on) any Security of such
series when the same becomes due and payable at maturity, upon
redemption or otherwise, and the default continues for five
Business Days;
(3) the Company fails to comply with any of its other
agreements in the Securities of such series or this Indenture
and the default continues for the period and after the notice
specified in the last paragraph of this Section 6.01;
(4) there shall be a default under any bond,
debenture, note or other evidence of Indebtedness or under any
mortgage, indenture or other instrument under which there may
be issued or by which there may be secured or evidenced any
Indebtedness of the Company or any Subsidiary, whether any
such Indebtedness now exists or shall hereafter be created, if
(a) either (i) such event of default results from the failure
to pay any such Indebtedness at maturity or (ii) as a result
of such event of default, the maturity of such Indebtedness
has been accelerated prior to its stated maturity and such
acceleration shall not be rescinded or annulled or the
accelerated amount paid within ten days after notice to the
Company of such acceleration, or such Indebtedness having been
discharged and (b) the principal amount of such Indebtedness,
together with the principal amount of any other such
Indebtedness in default for failure to pay principal or
interest thereon, or the maturity of which has been so
accelerated, aggregates $10,000,000 or more;
(5) the Company pursuant to or within the meaning of
any Bankruptcy Law:
(A) commences a voluntary case or
proceeding,
(B) consents to the entry of an order
for relief against it in an
involuntary case or proceeding,
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(C) consents to the appointment of a
Custodian of it or for all or
substantially all of its property,
or
(D) makes a general assignment for the
benefit of its creditors; or
(6) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company
in an involuntary case or
proceeding,
(B) appoints a Custodian of the Company
or for all or substantially all of
its property, or
(C) orders the liquidation of the
Company,
and the order or decree remains unstayed and in
effect for 90 days;
provided, however, that a default under this Section
6.01 is not an Event of Default with respect to any
series of Securities if a specified event is either
applicable to a particular series other than such
series or it is specifically deleted or modified in
the supplemental indenture creating such series of
Securities or in the form of Security for such
series.
A default under clause (3) is not an Event of Default with
respect to any series of Securities until the Trustee notifies the Company, or
the Holders of a majority in principal amount of the Securities of such series
then outstanding notify the Company and the Trustee in writing, of the default
and the Company does not cure the default within 60 days after receipt of such
notice. The notice must specify the default, demand that it be remedied and
state that the notice is a "Notice of Default." The Trustee shall give such
notice to the Company only if directed to do so in writing by the Holders of a
majority in principal amount of the Securities then outstanding. Such notice by
the Trustee shall not be deemed to be a certification by the Trustee as to
whether an Event of Default has occurred.
SECTION 6.02 Acceleration.
If an Event of Default occurs and is continuing with respect
to any series of Securities, the Trustee by notice to the Company, or the
Holders of a majority in principal amount of the Securities of such series then
outstanding by notice to the Company and the Trustee, may declare to be due and
payable immediately the principal amount of the Securities of such series plus
accrued interest to the date of acceleration. Upon any such declaration, such
amount shall be due and payable immediately, and upon payment of such amount all
of the Company's obligations with respect to the Securities of such series,
other than obligations under Section 7.07, shall terminate. The Holders of a
majority in principal amount of the outstanding Securities of such series by
written notice to the Trustee may rescind an acceleration and its
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consequences if (x) all existing Events of Default with respect to the
Securities of such series, other than the non-payment of the principal of the
Securities of such series, which have become due solely by such declaration of
acceleration, have been cured or waived, (y) to the extent the payment of such
interest is lawful, interest on overdue installments of interest and overdue
principal which has become due otherwise than by such declaration of
acceleration, has been paid, and (z) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction. The Trustee may rely
upon such notice of rescission without any independent investigation as to the
satisfaction of conditions (x), (y) and (z).
SECTION 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal (and premium, if any) or interest on the Securities of such
series or to enforce the performance of any provision of the Securities of such
series or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04 Waiver of Defaults and Events of Default.
Subject to Section 9.02, the Holders of a majority in
principal amount of the Securities of any series then outstanding, on behalf of
the Holders of the Securities of such series, by written notice to the Trustee
may waive a Default or Event of Default with respect to the Securities of such
series and its consequences. When a Default or Event of Default is waived with
respect to the Securities of any series, it is cured and ceases.
SECTION 6.05 Control by Majority.
The Holders of a majority in principal amount of the
Securities of any series then outstanding may direct in writing the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on it with respect to the Securities
of such series. The Trustee, however, may refuse to follow any direction that
conflicts with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of other Securityholders or that may involve the
Trustee in personal liability or for which the Trustee does not have adequate
indemnification pursuant to Section 7.01(e); provided, that, the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
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SECTION 6.06 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security of any series to receive payment of principal
of, premium, if any, and interest on such Security, on or after the respective
due dates expressed in such Security, or to bring suit for the enforcement of
any such payment on or after such respective dates, is absolute and
unconditional and shall not be impaired or affected without the consent of the
Holder.
Notwithstanding any other provision of this Indenture (other
than Section 3.01), the right of any Holder of any Security to convert such
Security or to bring suit for the enforcement of such right shall not be
impaired or affected without the written consent of the Holder.
SECTION 6.07 Collection Suit by Trustee.
If an Event of Default with respect to any series of
Securities in payment of interest or principal (and premium, if any) specified
in Section 6.01(1) or (2) occurs and is continuing, or an acceleration pursuant
to Section 6.02 occurs and is continuing, the Trustee may recover judgment in
its own name and as trustee of an express trust against the Company or any other
obligor on the Securities of such series for the whole amount of unpaid
principal (and premium, if any) and accrued interest remaining unpaid on the
Securities of such series, together with interest on overdue principal (and
premium, if any) and to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate borne by
the Securities of such series and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.08 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of Securities of any series allowed in any judicial proceedings relative
to the Company (or any other obligor upon the Securities of any series), its
creditors or its property and shall be entitled and empowered to collect and
receive any monies or other property payable or deliverable on any such claims
and to distribute the same. Any Custodian in any such judicial proceeding is
hereby authorized by each Securityholder to make such payments to the Trustee,
and in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities of any series, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties which the
Securityholders may be entitled to receive in such
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proceeding whether in liquidation or under any plan or reorganization or
arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan or reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceedings.
SECTION 6.09 Priorities.
If the Trustee collects any money pursuant to this Article 6
with respect to the Securities of any series, it shall pay out the money in the
following order:
FIRST: to the Trustee for amounts due under Section
7.07;
SECOND: to holders of any Senior Indebtedness as
required by Article 11; and
THIRD: to Holders of Securities of such series for
amounts due and unpaid on the Securities of such
series for principal of (and premium, if any) and
interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on
the Securities of such series for principal (and
premium, if any) and interest, respectively; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders of Securities of any series pursuant to this Section 6.09.
SECTION 6.10 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorney's fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.10 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.06 or a suit by Holders of more than 10% in
principal amount of the Securities of any series then outstanding or a suit by
any holder of Senior Indebtedness.
SECTION 6.11 Limitations on Suits.
Subject to Section 6.06, a Holder of any series of Securities
may not pursue any remedy with respect to this Indenture or the Securities
unless:
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(1) the Holder has given the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount of such
series of Securities make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or
expenses;
(4) The Trustee does not comply with the request within 60
days after receipt of the notice, request and offer of
indemnity; and
(5) 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 such series of
Securities then outstanding.
A Holder of any Security may not use this Indenture to
prejudice the rights of another Securityholder or to obtain a preference or
priority over another Securityholder.
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise its rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent Person
would exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied covenants
or obligation shall be read into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. The Trustee,
however, shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
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(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.01.
(2) The Trustee shall not be liable for any error in
judgment made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(4) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) Subject to subsection (c), the Trustee may refuse to
perform any duty or exercise any right or power unless, subject to the
provisions of the TIA, it receives indemnity satisfactory to it against any
loss, liability, expense or fee.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02 Rights of Trustee.
(1) The Trustee may rely on and shall be protected in acting
or refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both, which shall
conform to Section 13.05. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such Officers' Certificate
or Opinion of Counsel.
(3) The Trustee may act through agents or attorneys and shall
not be responsible for the misconduct or negligence of such agents or attorneys
appointed with due care and shall not be responsible for their supervision.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers.
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(5) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by the Trustee hereunder in good faith and reliance thereon.
(6) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series 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.
SECTION 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities of any series and may otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. The Trustee, however, is
subject to Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities of any series, it shall not be
accountable for the Company's use of the proceeds from the Securities of any
series, and it shall not be responsible for any statement of the Company in the
Indenture or any statement in the Securities of any series other than its
certificate of authentication or in any document used in the sale of the
Securities of any series other than any statement in writing provided by the
Trustee expressly for use in such document.
SECTION 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and
if it is actually known to the Trustee with respect to the Securities of any
series, the Trustee shall mail to each Holder of Securities of such series
notice of the Default or Event of Default within 90 days after it occurs. Except
in the case of a default in payment of principal of, premium, if any, or
interest on any Security, the Trustee may withhold the notice if and so long as
a committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of Holders of Securities of such series.
Notwithstanding anything to the contrary expressed in this Indenture, the
Trustee shall not be deemed to have knowledge of any Event of Default hereunder
unless and until a Trust Officer shall have actual knowledge thereof, or shall
have received written notice thereof from the Company at its Corporate Trust
Office. The Trustee shall not be deemed to have actual knowledge of an Event of
Default hereunder, except in the case of an Event of Default under Sections
6.01(1) or 6.01(2) (provided that the Trustee is the Paying Agent), until a
Trust Officer receives written notice thereof from the Company or any
Securityholder that such an Event of Default has occurred.
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SECTION 7.06 Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with May 15 of the
first year in which Securities are outstanding hereunder, the Trustee, if
required by the provisions of TIA ss.313(a), shall mail to each Securityholder a
brief report dated as of May 15 of such year that complies with TIA ss.313(a).
The Trustee also shall comply with TIA ss.313(b) and ss.313(c).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the Commission and each stock exchange on
which the Securities of any series are listed. The Company agrees to notify the
Trustee in writing whenever the Securities of any series become listed or
delisted on or from any stock exchange.
SECTION 7.07 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust). The Company shall reimburse the Trustee upon request for all
reasonable disbursements, expenses and advances incurred or made by it. Such
expenses may include, but shall not be limited to, the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it
harmless against, any loss or liability incurred by it in connection with the
acceptance or administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection with the
Securities or the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity and the Company may elect by
written notice to the Trustee to assume the defense of any such claim at the
Company's expense with counsel reasonably satisfactory to the Trustee.
The Company need not reimburse the Trustee for any expense or
indemnify it against any loss or liability incurred by it through the Trustee's
negligence, bad faith or willful misconduct. The Company shall not be liable for
any settlement of any claim or action effected without the Company's consent. To
secure the Company's payment obligations in this Section, the Trustee shall have
a lien prior to the Securities on all money or property held or collected by the
Trustee.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01 occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any applicable bankruptcy or comparable law.
SECTION 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
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The Trustee may resign with respect to any series of
Securities by so notifying the Company. The Holders of a majority in principal
amount of the Securities of any series then outstanding may remove the Trustee
with respect to such series of Securities by so notifying the Trustee and may
appoint a successor Trustee with respect to such series of Securities with the
Company's written consent. The Company may remove the Trustee with respect to
any series of Securities (or, if clause (4) applies, with respect to all series)
if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an
insolvent;
(3) a receiver or other public officer takes charge
of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting
with respect to any series of Securities.
If the Trustee resigns or is removed with respect to any
series of Securities or if a vacancy exists in the office of Trustee with
respect to any series of Securities for any reason, the Company shall promptly
appoint a successor Trustee with respect to such series.
If a successor Trustee with respect to any series of
Securities does not take office within 45 days after the retiring Trustee with
respect to such series resigns or is removed, the retiring Trustee, the Company
or the Holders of a majority in principal amount of the Securities of such
series then outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment with respect to any series of Securities to the retiring Trustee and
to the Company. Immediately after that, the retiring Trustee shall, upon payment
of its fees and expenses, transfer all property held by it as Trustee with
respect to such series to the successor Trustee, subject to the lien provided
for in Section 7.07, the resignation or removal of the retiring Trustee shall
become effective with respect to such series, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture with
respect to such series. Notwithstanding the replacement of the Trustee with
respect to any series of Securities pursuant to this Section 7.08, the Company's
obligations under Section 7.07 shall continue for the benefit of the retiring
Trustee with respect to expenses and liabilities incurred by it and compensation
earned by it prior to such replacement or otherwise with respect to the
Securities of such series or the Indenture. A successor Trustee with respect to
any series of Securities shall mail notice of its succession to each Holder of
Securities of such series.
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SECTION 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss.310(a)(1), (2) and (5). The Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA
ss.310(b), including the optional provision permitted by the second sentence of
TIA ss.310(b)(9). The provisions of TIA ss. 310 shall also apply to the Company
as obligor of the Securities.
SECTION 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA ss.311(a), excluding any
creditor relationship listed in TIA ss.311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss.311(a) to the extent indicated therein.
The provisions of TIA ss. 311 shall also apply to the Company as obligor of the
Securities.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01 Satisfaction, Discharge and Defeasance of the Securities.
The Company shall be deemed to have paid and discharged the
entire indebtedness on the Securities of any series after the date of the
deposit referred to in paragraph (a) below, the provisions of this Indenture
shall no longer be in effect in respect of the Securities of such series, and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of such indebtedness; provided that the
following conditions shall have been satisfied:
(a) the Company has deposited or caused to be
deposited with the Trustee irrevocably as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
all Securities of such series, with reference to this Section 8.01, (i) money or
(ii) U.S. Government Obligations or (iii) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge the entire indebtedness on all the Securities of such series for
principal, premium, if any, and interest, if any, to the maturity date of such
series of Securities as such principal, premium, if any, or interest becomes due
and payable in accordance with the terms of this Indenture and the Securities;
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(b) the Company has paid or caused to be paid all
other sums payable hereunder by the Company in connection with all of the
Securities of any series, including all fees and expenses of the Trustee; and
(c) the Company has delivered to the Trustee an
Officers' Certificate stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of the entire indebtedness on the
Securities and the discharge of this Indenture and the termination of the
Company's obligations hereunder have been complied with.
"U.S. Government Obligations" means direct, non-callable
obligations of, or non-callable obligations guaranteed by, the United States of
America for the timely payment of which obligation or guarantee the full faith
and credit of the United States of America is pledged.
SECTION 8.02 Satisfaction and Discharge of Indenture.
In addition to its rights under Section 8.01, the Company may
terminate all of its obligations under this Indenture when:
(a) all of the Securities of each series theretofore
authenticated and delivered (other than (A) Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.07 hereof and (B) Securities for whose payment money has theretofore
been deposited with the Trustee or the Paying Agent in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 2.05 and Section 8.06 hereof) have been
delivered to the Trustee for cancellation; and
(b) the Company has paid or caused to be paid all
other sums payable hereunder by the Company in connection with the outstanding
Securities, including all fees and expenses of the Trustee.
SECTION 8.03 Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this
Indenture pursuant to Section 8.01, the respective obligations of the Company
specified in Sections 2.04, 2.05, 2.06, 2.07, 2.12, 4.01, 7.07, 8.05, 8.06, 8.07
and in Article 10 shall survive until the Securities are no longer outstanding,
and after the Securities are no longer outstanding, or upon compliance with
Section 8.02, only the obligations of the Company in such Sections 7.07 and 8.06
shall survive. Nothing contained in this Article Eight shall abrogate any of the
obligations or duties of the Trustee under this Indenture.
SECTION 8.04 Application of Trust Money.
(a) Subject to the provisions of Section 8.06, all money and
U.S. Government Obligations deposited with the Trustee for the Securities of any
series pursuant to Section 8.01 or Section 8.02, and all money received by the
Trustee in respect of U.S. Government Obligations deposited with the Trustee for
the Securities of any series pursuant to Section 8.01 or Section
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8.02 shall be held in trust and reinvested by the Trustee in U.S. Government
Obligations in accordance with the Company's written instructions and applied by
the Trustee in accordance with the provisions of the Securities of such series
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any,
and interest, if any, on the Securities of such series; but such money need not
be segregated from other funds except to the extent required by law.
(b) The Trustee shall deliver or pay to the Company from time
to time upon the Company's written request any U.S. Government Obligations, or
money held by it as provided in Section 8.01 or Section 8.02 which, in the
written opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are then in excess of the amount thereof which then would have been
required to be deposited for the purpose for which such U.S. Government
Obligations, or money were deposited or received.
SECTION 8.05 Paying Agent to Repay Monies Held.
Upon the satisfaction and discharge of this Indenture with
respect to the Securities of any series, all monies then held by any Paying
Agent for the benefit of Securities of such series under the provisions of this
Indenture shall, upon written demand of the Company, be repaid to it or paid to
the Trustee, and thereupon such Paying Agent shall be released from all further
liability with respect to such monies.
SECTION 8.06 Return of Unclaimed Monies.
Any monies deposited with or paid to the Trustee or any Paying
Agent for the Securities of any series, or then held by the Company in trust,
for the payment of any principal, premium, if any, and interest, if any, on the
Securities of any series and not applied but remaining unclaimed by the Holders
of the Securities of such series for two years after the date upon which the
principal of and interest, if any, on the Securities of such series, as the case
may be, shall have become due and payable, shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be repaid to the Company by such Trustee or any Paying Agent on written
demand by the Company or (if then held by the Company) shall be discharged from
such trust; and the Holders of the Securities of such series entitled to receive
such payment shall thereafter look only to the Company for the payment thereof;
provided, however, that, before being required to make any such repayment, such
Trustee may, or shall at the written request of the Company, at the expense of
the Company, cause to be published once in an authorized newspaper in the same
city in which the place of payment with respect to the Securities of such series
shall be located and in an authorized newspaper in the City of New York, or mail
to each such Holder, a notice (in such form as may be deemed appropriate by such
Trustee) that said monies remain unclaimed and that, after a date named therein,
any unclaimed balance of said monies then remaining will be returned to the
Company.
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SECTION 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations with respect to the Securities of any series in
accordance with Section 8.01 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Securities of such series shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.01 until such
time as the Trustee or Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 8.04; provided, however, that
if the Company has made any payment of interest on or principal of any
Securities of any series because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without Consent of Holders.
The Company, when authorized by Board Resolution, and the
Trustee at any time and from time to time, may amend this Indenture or enter
into one or more indentures supplemental hereto, to be in a form satisfactory to
the Trustee without notice to or consent of any Securityholder for any of the
following purposes:
(1) to comply with Section 5.01; or
(2) to provide for uncertificated Securities in addition to or
in place of certificated Securities; or
(3) to add to the covenants of the Company, for the benefit of
the Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series),
or to surrender any right or power herein conferred upon the Company; or
(4) to add any Events of Default (and if such Events of
Default are to be applicable to less than all series of Securities, stating that
such Events of Default are expressly being included solely to be applicable to
such series); or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become effective
only when there is no Security outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision; or
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(6) to establish the form or terms of Securities of any series
as permitted by Sections 2.01 and 2.02; or
(7) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions
arising under this Indenture which shall not be inconsistent with any provision
of this Indenture, provided such other provisions shall not adversely affect the
interests of the Holders of Securities of any series in any material respect.
SECTION 9.02 Supplemental Indentures with Consent of Holders.
With the written consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of each series at the
time outstanding affected by such supplemental indenture, the Company, when
authorized by Board Resolution, and the Trustee may amend this Indenture or from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act of 1939
as in force at the date of the execution thereof) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture, except as otherwise permitted
by Section 9.01, or of modifying in any manner the rights of the Holders of the
Securities of each such series. Subject to Section 9.04, without the consent of
each Holder of Securities of any series affected, however, an amendment,
supplement or waiver, including a waiver pursuant to Section 6.04, may not:
(1) extend the fixed maturity of any Securities, or reduce the
principal amount thereof or premium, if any, or reduce the rate or extend the
time of payment of interest thereon, without the consent of the Holder of each
Security so affected;
(2) reduce the aforesaid percentage of Securities of each
series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of all Securities
then outstanding affected thereby;
(3) waive (except, unless theretofore cured) a default in the
payment of the principal of (and premium, if any on), interest on or redemption
amounts with respect to any Security;
(4) make any Security payable in money other than that stated
in the Security;
(5) make any change in Sections 6.04, 6.06 or 9.02 (this
sentence);
(6) make any change that adversely affects the right to
convert any Security; or
(7) make any change in Article 11 that adversely affects the
rights of any Securityholder.
Upon the request of the Company, accompanied by a copy of a
Board Resolution certified by the Secretary or an Assistant Secretary of the
Company authorizing the execution of
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any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders as aforesaid, the Trustee shall join
with the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed amendment, supplement or waiver, but it shall be sufficient if such
consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Company shall mail a notice, setting forth in general terms the substance of
such supplemental indenture, to all Holders of Securities of each series so
affected as the names and addresses of such Holders shall appear on the registry
books. Any failure of the Company so to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 9.04 Revocation and Effect of Consents.
Subject to this Indenture, each amendment, supplement or
waiver evidencing other action shall become effective in accordance with its
terms. Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder of a Security of any series is a continuing consent by the Holder
even if notation of the consent is not made on any Security. Any such Holder or
subsequent Holder, however, may revoke the consent as to his Security or portion
of a Security, if the Trustee receives the notice of revocation before the date
the amendment, waiver or other action becomes effective.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then notwithstanding
the provisions of the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies) and only those
Persons, shall be entitled to consent to such amendment, supplement or waiver or
to revoke any consent previously given, whether or not such Persons continue to
be Holders after such record date. No consent shall be valid or effective for
more than 90 days after such record date unless consent from Holders of the
principal amount of Securities of any series then outstanding required hereunder
for such amendment, supplement or waiver to be effective shall have also been
given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder, unless it makes a change described in any of
clauses (1) through (6) of Section
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9.02. In that case the amendment, supplement or waiver shall only bind the
Holders of a Security or portion of a Security of the same series.
SECTION 9.05 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security of any series, the Trustee may request the Holder of the Security of
such series to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security about the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determine, the Company in
exchange for the Security of such series shall issue and the Trustee shall
authenticate a new Security of such series that reflects the changed terms the
cost and expense of which will be borne by the Company.
SECTION 9.06 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities of any applicable series theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 9.07 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors of the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Securities
outstanding of such series.
ARTICLE 10
CONVERSION OF SECURITIES
ECTION 10.01 Right of Conversion; Conversion Price.
If provided in the Board Resolution or supplemental indenture
with respect to such series of Securities, the Holder of any Security or
Securities of a particular series shall have the right, at his option, at any
time after such date as determined by such Board Resolution or supplemental
indenture and before the close of business on such date as determined by such
Board Resolution or supplemental indenture (except that, with respect to any
Security or portion of a Security of such series which shall be called for
redemption, such right shall terminate at the close of business on the date
fixed for redemption of such Security or portion of a Security unless the
Company shall default in payment due upon redemption thereof), to convert,
subject to the
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terms and provisions of this Article 10 and any other terms or provisions set
forth in such Board Resolution or supplemental indenture, the principal of any
Security or Securities of such series or any portion thereof which is $1,000
principal amount or an integral multiple thereof into shares of common stock of
the Company or Securities of another series of Securities, initially at the
conversion price per share specified in the Securities of such series; or, in
case an adjustment of such price has taken place pursuant to the provisions of
Section 10.04, then at the price as last adjusted (such price or adjusted price
being referred to herein as the "conversion price"), upon surrender of the
Security or Securities, the principal of which is so to be converted,
accompanied by written notice of conversion duly executed, to the Company, at
any time during usual business hours at the office or agency maintained by it
for such purpose, and, if so required by the Conversion Agent or Registrar,
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Conversion Agent or Registrar duly executed by the Holder or
his duly authorized representative in writing. For convenience, the conversion
of any portion of the principal of any Security or Securities into shares of
common stock of the Company or other Securities is hereinafter sometimes
referred to as the conversion of such Security or Securities.
ECTION 10.02 Issuance of Shares on Conversion.
As promptly as practicable after the surrender, as herein
provided, of any Security or Securities of any series for conversion, the
Company shall deliver or cause to be delivered at its said office or agency, to
or upon the written order of the Holder of the Security or Securities so
surrendered, certificates representing the number of fully paid and
nonassessable shares of common stock of the Company or Securities of another
series of the Company into which such Security or Securities may be converted in
accordance with the provisions of this Article 10. Such conversion shall be
deemed to have been made as of the close of business on the date that such
Security or Securities shall have been surrendered for conversion by delivery
thereof with a written notice of conversion duly executed, so that the rights of
the Holder of such Security or Securities as a Securityholder shall cease at
such time and, subject to the following provisions of this paragraph, the Person
or Persons entitled to receive the shares of common stock or Securities of
another series upon conversion of such Security or Securities shall be treated
for all purposes as having become the record holder or holders of such shares of
common stock or Securities of another series at such time and such conversion
shall be at the conversion price in effect at such time; provided, however, that
with respect to shares of the Company's common stock, no such surrender on any
date when the stock transfer books of the Company shall be closed shall be
effective to constitute the Person or Persons entitled to receive the shares of
common stock upon such conversion as the record holder or holders of such shares
of common stock on such date, but such surrender shall be effective to
constitute the Person or Persons entitled to receive such shares of common stock
as the record holder or holders thereof for all purposes at the close of
business on the next succeeding day on which such stock transfer books are open;
such conversion shall be at the conversion price in effect on the date that such
Security or Securities shall have been surrendered for conversion by delivery
thereof, as if the stock transfer books of the Company had not been closed. The
Company shall give or cause to be given to the Trustee written notice whenever
the stock transfer books of the Company shall be closed.
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Upon Conversion of any Security of any series which is
converted in part only, the Company shall execute and the Trustee shall
authenticate and deliver to or on the order of the Holder thereof, at the
expense of the Company, a new Security or Securities of such series of
authorized denominations in principal amount equal to the unconverted portion of
such Security.
SECTION 10.03 No Adjustment for Interest or Dividends.
No payment or adjustment in respect of interest on the
Securities of any series or dividends on the shares of common stock shall be
made upon the conversion of any Security or Securities; provided, however, that
if a Security of any series or any portion thereof shall be converted subsequent
to any regular record date and on or prior to the next succeeding interest
payment date, the interest falling due on such interest payment date shall be
payable on such interest payment date notwithstanding such conversion, and such
interest (whether or not punctually paid or duly provided for) shall be paid to
the Person in whose name such Security is registered at the close of business on
such regular record date and Securities surrendered for conversion during the
period from the close of business on any regular record date to the opening of
business on the corresponding interest payment date must be accompanied by
payment of an amount equal to the interest payable on such interest payment
date.
SECTION 10.04 Adjustment of Conversion Price.
(1) With respect to any series of Securities that is
convertible into shares of the Company's common stock, in case the Company shall
pay or make a dividend or other distribution on any class of Capital Stock of
the Company in shares of common stock, the conversion price for any series of
Securities in effect at the opening of business on the day following the date
fixed for the determination of shareholders entitled to receive such dividend or
other distribution shall be reduced by multiplying such conversion price by a
fraction of which the numerator shall be the number of shares of common stock
outstanding at the close of business on the date fixed for such determination
and the denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution, such
reduction to become effective immediately after the opening of business on the
day following the date fixed for such determination.
(2) With respect to any series of Securities that is
convertible into shares of the Company's common stock, in case the Company shall
issue rights or warrants to all or substantially all holders of its shares of
common stock entitling them to subscribe for or purchase shares of common stock
at a price per share (or having a conversion price per share) less than the
current market price per share (determined as provided in paragraph (6) of this
Section) of the shares of common stock on the date fixed for the determination
of shareholders entitled to receive such rights or warrants, the conversion
price for any series of Securities in effect at the opening of business on the
day following the date fixed for such determination shall be reduced by
multiplying such conversion price by a fraction of which the numerator shall be
the number of shares of common stock outstanding at the close of business on the
date fixed for such determination plus the number of shares of common stock
which the aggregate of the subscription price of the total number of shares of
common stock so offered for subscription or
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purchase would purchase at such current market price and the denominator shall
be the number of shares of common stock outstanding at the close of business on
the date fixed for such determination plus the number of shares of common stock
so offered for subscription or purchase, such reduction to become effective
immediately after the opening of business on the day following the date fixed
for such determination. In the event that all of the shares of common stock
subject to such rights or warrants have not been issued when such rights or
warrants expire, then the conversion price shall promptly be readjusted to the
conversion price which would then be in effect had the adjustment upon the
issuance of such rights or warrants been made on the basis of the actual number
of shares of common stock issued upon the exercise of such rights or warrants.
For the purposes of this paragraph (2), the number of shares of common stock at
any time outstanding shall not include shares held in the treasury of the
Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of common stock. The Company will not
issue any rights or warrants in respect of shares of common stock held in the
treasury of the Company.
(3) With respect to any series of Securities that is
convertible into shares of the Company's common stock, in case the outstanding
shares of common stock shall be subdivided into a greater number of shares, the
conversion price for any series of Securities in effect at the opening of
business on the day following the day upon which such subdivision becomes
effective shall be proportionately reduced, and, conversely, in case outstanding
shares of common stock shall each be combined into a smaller number of shares,
the conversion price for any series of Securities in effect at the opening of
business on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or increase, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(4) With respect to any series of Securities that is
convertible into shares of the Company's common stock, in case the Company
shall, by dividend or otherwise, distribute to all or substantially all holders
of shares of common stock evidences of indebtedness or assets (including
securities, but excluding (i) any rights or warrants referred to in paragraph
(2) of this Section, (ii) any dividend or distribution not prohibited by Section
4.06 hereof and (iii) any dividend or distribution referred to in paragraph (1)
of this Section), the conversion price for any series of Securities shall be
adjusted so that the same shall equal the price determined by multiplying the
conversion price in effect immediately prior to the close of business on the day
fixed for the determination of shareholders entitled to receive such
distribution by a fraction of which the numerator shall be the current market
price per share (determined as provided in paragraph (6) of this Section) of the
shares of common stock on the date fixed for such determination less the then
fair market value as determined by the Board of Directors of the Company (whose
determination shall be conclusive and described in a resolution of the Board of
Directors of the Company filed with the Trustee) of the portion of the assets or
evidences of indebtedness so distributed allocable to one share of common stock
and the denominator shall be such current market price per share of the shares
of common stock, such adjustment to become effective immediately prior to the
opening of business on the day following the date fixed for the determination of
shareholders entitled to receive such distribution.
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(5) With respect to any series of Securities that is
convertible into shares of the Company's common stock, in case the shares of
common stock shall be changed into the same or a different number of shares of
any class or classes of stock, whether by capital reorganization,
reclassification, or otherwise (other than a subdivision or combination of
shares or a stock dividend described in paragraph (1) or paragraph (3) of this
Section, or a consolidation, merger or sale of assets described in Section
10.10), then and in each such event the Holders of Securities of any series
shall have the right thereafter to convert such Securities into the kind and
amount of shares of stock and other securities and property receivable upon such
reorganization, reclassification or other change, by holders of the number of
shares of common stock into which such Securities might have been converted
immediately prior to such reorganization, reclassification or change.
(6) For the purpose of any computation under paragraphs (2)
and (4) of this Section, the current market price per share of common stock on
any date shall be deemed to be the average of the Closing Prices for the 15
consecutive Business Days selected by the Company commencing not more than 30
and not less than 20 Business Days before the date in question.
(7) No adjustment in the conversion price for the Securities
of any series shall be required unless such adjustment (plus any adjustments not
previously made by reason of this paragraph (7)) would require an increase or
decrease of at least 1% in such price; provided, however, that any adjustments
which by reason of this paragraph (7) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this paragraph (7) shall be made to the nearest cent.
(8) The Company may, but shall not be required to, make such
reductions in the conversion price for the Securities of any series, in addition
to those required by paragraph (1), (2), (3) and (4) of this Section, as the
Board of Directors of the Company considers to be advisable in order to avoid or
diminish any income tax to any holders of shares of common stock resulting from
any dividend or distribution of stock or issuance of rights or warrants to
purchase or subscribe for stock or from any event treated as such for income tax
purposes or for any other reasons. The Company's Board of Directors of the
Company shall have the power to resolve any ambiguity or correct any error in
the adjustments made pursuant to this Section 10.04 and its actions in so doing
shall be final and conclusive.
(9) The adjustments provided for in this Section 10.04 shall
be made successively whenever any event listed above shall occur.
SECTION 10.05 Notice of Adjustment of Conversion Price.
Whenever the conversion price for the Securities of any series
is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion
price in accordance with Section 10.04 and shall prepare an Officers'
Certificate setting forth the adjusted conversion price and showing the facts
upon which such adjustment is based and the computation thereof, and such
certificate shall forthwith be filed at each office or agency
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maintained for the purpose of conversion of Securities pursuant to Section 2.04
and with the Trustee; and
(b) a notice stating that the conversion price has
been adjusted and setting forth the adjusted conversion price shall as soon as
practicable be mailed by the Company to all Holders of Securities of such series
at their last addresses as they shall appear in the Security Register.
(c) If the conversion price is adjusted and the
Company fails to file an Officers' Certificate with the Trustee as provided by
Section 10.05(a) and the Trustee is acting as the Conversion Agent, the Trustee
shall be entitled to rely conclusively on the conversion price set forth in the
Officer's Certificate most recently received by the Trustee (or as set forth in
this Indenture if the conversion price shall not have been adjusted).
SECTION 10.06 Notice of Certain Corporate Action.
(1) In case:
(a) the Company shall authorize the granting to
holders of its shares of common stock of rights or warrants entitling them to
subscribe for or purchase any shares of Capital Stock of any class or of any
other rights; or
(b) of any reclassification of the shares of common
stock of the Company, or of any consolidation or merger to which the Company is
a party and for which approval of any shareholders of the Company is required,
or of the sale or transfer of all or substantially all of the assets of the
Company; or
(c) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities of any series pursuant to Section 2.04
and shall cause to be mailed to all Holders of Securities of such series that
are convertible into shares of the Company's common stock at their last
addresses as they shall appear in the Security Register, at least 20 days (or 10
days in any case specified in clause (a) or (b) above) prior to the applicable
record date hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of such dividend, distribution, rights or
warrants, or, if a record is not to be taken, the date as of which the Holders
of shares of common stock of record to be entitled to such dividend,
distribution, rights or warrants are to be determined, or (y) the date on which
such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of shares of common stock of record shall be
entitled to exchange their shares of common stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up. Such notice shall also state
whether such transaction will result in any adjustment in the conversion price
applicable to the Securities of such series and, if so, shall state what the
adjusted conversion price will be and when it will
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become effective. Neither the failure to give the notice required by this
Section, nor any defect therein, to any particular Holder shall affect the
sufficiency of the notice or the legality or validity of any such dividend,
distribution, right, warrant, reclassification, consolidation, merger, sale,
transfer, liquidation, dissolution or winding-up, or the vote on any action
authorizing such with respect to the other Holders.
(2) In case the Company or any Affiliate of the Company shall
propose to engage in a "Rule 13e-3 Transaction" as defined in the Commission's
Rule 13e-3 under the Exchange Act, the Company shall, no later than the date on
which any information with respect to such Rule 13e-3 Transaction is first
required to be given to the Commission or any other Person pursuant to such Rule
13e-3, cause to be mailed to all Holders at their last addresses as they shall
appear in the Security Register, a copy of all information required to be given
to the holders of the Company's Capital Stock pursuant to such Rule 13e-3. The
information required to be given under this paragraph shall be in addition to
and not in lieu of any other information required to be given by the Company
pursuant to this Section 10.06 or any other provision of the Securities or this
Indenture.
SECTION 10.07 Taxes on Conversions.
The Company will pay any and all stamp or similar taxes that
may be payable in respect of the issuance or delivery of shares of common stock
or Securities of another series on conversion of Securities pursuant hereto. The
Company shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the issuance and delivery of shares of
common stock in a name other than that of the Holder of the Security or
Securities to be converted, and no such issuance or delivery shall be made
unless and until the Person requesting such issuance has paid to the Company the
amount of any such tax, or has established to the satisfaction of the Company
that such tax has been paid.
SECTION 10.08 Fractional Shares.
No fractional shares or scrip representing fractional shares
shall be issued upon any conversion of Securities. If any such conversion would
otherwise require the issuance of a fractional share an amount equal to such
fraction multiplied by the current market price per share of common stock
(determined as provided in paragraph (6) of Section 10.04) on the day of
conversion shall be paid to the Holder in cash by the Company.
SECTION 10.09 Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to
the Trustee or the Conversion Agent to be canceled by or at the direction of the
Trustee or the Conversion Agent, which shall dispose of the same as provided in
Section 2.10.
SECTION 10.10 Provisions in Case of Consolidation, Merger or Sale of Assets.
(1) In case of any consolidation of the Company with, or
merger of the Company into, any other corporation or trust, or in case of any
merger of another corporation or trust into
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the Company (other than a consolidation or merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
common stock of the Company), or in case of any sale or transfer of all or
substantially all of the assets of the Company, the corporation or trust formed
by such consolidation or resulting from such merger or which acquires such
assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security of any series
then outstanding shall have the right thereafter, during the period such
Security shall be convertible as specified in Section 10.01 to convert such
Security only into the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of shares of common stock of the Company into which such Security might
have been converted immediately prior to such consolidation, merger, sale or
transfer. Such supplemental indenture shall provide for adjustments which, for
events subsequent to the effective date of such supplemental indenture, shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Article. The above provisions of this Section shall similarly apply to
successive consolidations, mergers, sales or transfers.
(2) The Trustee shall not be under any responsibility to
determine the correctness of any provisions contained in any such supplemental
indenture relating either to the kind or amount of shares of stock or securities
or property receivable by Holders upon the conversion of their Securities after
any such reclassification, change, consolidation, merger, sale or conveyance or
to any adjustment to be made with respect thereto.
SECTION 10.11 Disclaimer by Trustee of Responsibility for Certain Matters.
The Trustee shall not at any time be under any duty or
responsibility to any Holder of Securities of any series to determine whether
any facts exist which may require any adjustment of the conversion price for
such series, or with respect to the nature or extent of any such adjustment when
made, or with respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. The Trustee shall not be
accountable with respect to the validity, value, kind or amount of any shares of
common stock, or of any securities or property, which may at any time be issued
or delivered upon the conversion of any Security; and it makes no representation
with respect thereto. The Trustee shall not be responsible for any failure of
the Company to issue, transfer or deliver any shares of common stock or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion or, subject to Section 7.01, to comply with any of
the covenants of the Company contained in this Article.
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ARTICLE 11
SUBORDINATION; SENIORITY
SECTION 11.01 Securities Subordinated to Senior Indebtedness.
(a) Securities of any series which by their terms are
subordinated and junior in right of payment of the principal of, premium, if
any, and interest (all of the foregoing, a "Payment or Distribution") on such
Securities ("Junior Securities") to the prior payment in full of any Senior
Indebtedness whether outstanding on the date hereof or hereafter created,
incurred, assumed or guaranteed, shall comply with the provisions of this
Article 11, and each Holder of Junior Securities of such series by his
acceptance thereof likewise agrees.
A Payment or Distribution shall include any asset of any kind
or character, and may consist of cash, securities or other property, by set-off
or otherwise, and shall include, without limitation, any purchase, redemption or
other acquisition of Junior Securities of the series or the making of any
deposit of funds or securities pursuant to this Indenture (including, without
limitation, any deposit pursuant to Article 8 hereof).
(b) The Senior Indebtedness of the Company shall continue to
be Senior Indebtedness and entitled to the benefit of these subordination
provisions irrespective of any amendment, modification or waiver of any term of
any instrument relating to refinancing of the Senior Indebtedness.
(c) All the provisions of this Indenture and the Junior
Securities of any series shall be subject to the provisions of this Article 11
so far as they may be applicable thereto, except that nothing in this Article 11
shall apply to claims for, or payments to, the Trustee under or pursuant to
Section 7.07.
(d) No right of any holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time or in any way be
affected or impaired by any failure to act on the part of the Company, any
Paying Agent, the Holders of the Junior Securities of any series, the Trustee or
the holders of the Senior Indebtedness, or by any noncompliance by the Company,
any Paying Agent, the Holders of the Junior Securities of any series or the
Trustee with any of the terms, provisions and covenants of the Securities or
this Indenture, regardless of any knowledge thereof that any such holder of
Senior Indebtedness may have or be otherwise charged with.
(e) In the event that the Junior Securities of any series are
declared due and payable before their expressed maturity because of the
occurrence of a default hereunder, the
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Company will give prompt notice in writing of such happening to the holders of
Senior Indebtedness.
SECTION 11.02 Company Not to Make Payments with Respect to Junior Securities in
Certain Circumstances.
No Payment or Distribution shall be made by the Company, the
Trustee or the Paying Agent on account of principal of (or premium, if any) or
interest on the Junior Securities of any series, whether upon stated maturity,
upon redemption or acceleration, or otherwise, or on account of the purchase or
other acquisition of Junior Securities of such series, whether upon stated
maturity, upon redemption or acceleration, or otherwise, if there shall have
occurred and be continuing a default with respect to any Senior Indebtedness
permitting the acceleration thereof or with respect to the payment of any Senior
Indebtedness and (a) such default is the subject of a judicial proceeding or (b)
notice of such default in writing or by telegram has been given to the Company
by any holder or holders of any Senior Indebtedness, unless and until the
Company shall have received written notice from such holder or holders that such
default or event of default shall have been cured or waived or shall have ceased
to exist.
Upon any acceleration of the principal of the Junior
Securities of any series or any payment by the Company or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding up or liquidation or
reorganization of the Company, whether voluntary or involuntary, or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or to
become due upon all Senior Indebtedness shall first be paid in full in cash, or
payment thereof provided for to the satisfaction of the holders thereof, before
any Payment or Distribution is made on account of the redemption price or
principal of (and premium, if any) or interest on the Junior Securities of such
series; and (subject to the power of a court of competent jurisdiction to make
other equitable provision, which shall have been determined by such court to
give effect to the rights conferred in this Article upon the Senior Indebtedness
and the holders thereof with respect to the Junior Securities of such series or
the Holders thereof or the Trustee, by a lawful plan of reorganization or
readjustment under applicable law) upon any such dissolution or winding up or
liquidation or reorganization, any Payment or Distribution by the Company or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Holders of the Junior Securities of any
series or the Trustee would be entitled except for the provisions of this
Article, shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such Payment or Distribution
directly to the holders of Senior Indebtedness of the Company or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay all Senior Indebtedness in full in cash, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness, before any Payment or Distribution is made to the Holders of the
Securities of such series or to the Trustee, except that the Trustee will have a
lien for the payment of its fees and expenses.
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In the event that, notwithstanding the foregoing, any Payment
or Distribution by the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee or the Holders of the Junior Securities of any series before all Senior
Indebtedness is paid in full in cash, or provision is made for such payment to
the satisfaction of the holders thereof, and if such fact shall then have been
or thereafter be made known to a Trust Officer of the Trustee or, as the case
may be, such Holder, then and in such event such Payment or Distribution shall
be paid over or delivered to the holders of Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, for application
to the payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all Senior Indebtedness in full in cash, after giving effect to
any concurrent Payment or Distribution to or for the holders of such Senior
Indebtedness, and, until so delivered, the same shall be held in trust by any
Holder of a Junior Security as the property of the holders of Senior
Indebtedness.
The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided in Article Five shall not be deemed a dissolution, winding
up, liquidation or reorganization for the purposes of this Section if such other
Person shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions stated in Article Five. Nothing in this Section shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
7.07.
The holders of Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the Holders of the Junior
Securities of any series, without incurring responsibility to the Holders of the
Junior Securities of such series and without impairing or releasing the
obligations of the Holders of the Junior Securities of such series hereunder to
the holders of Senior Indebtedness: (i) change the manner, place or terms of
payment or change or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any
Person liable in any manner for the collection of Senior Indebtedness; and/or
(iv) exercise or refrain from exercising any rights against the Company and any
other Person.
SECTION 11.03 Subrogation of Junior Securities.
Subject to the payment in full in cash of all amounts then due
(whether by acceleration of the maturity thereof or otherwise) on account of all
Senior Indebtedness at the time outstanding, the Holders of the Junior
Securities of any series shall be subrogated to the rights of the holders of
Senior Indebtedness to receive Payments or Distributions of cash, property or
securities of the Company applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Securities shall be paid
in full; and, for the purposes of such subrogation, no Payments or Distributions
to the holders of Senior Indebtedness to which
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the Holders of the Junior Securities of any series or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Indebtedness
by Holders of the Junior Securities of any series or the Trustee, shall, as
between the Company, the Company's creditors other than holders of Senior
Indebtedness, and the Holders of the Junior Securities of such series, be deemed
to be a payment by the Company to or on account of the Senior Indebtedness. It
is understood that the provisions of this Article are and are intended solely
for the purpose of defining the relative rights of the Holders of the Junior
Securities of any series, on the one hand, and the holders of Senior
Indebtedness, on the other hand.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Securities of each series, the obligation of the Company, which
is absolute and unconditional, to pay to the Holders of the Securities of any
series the principal of (and premium, if any) and interest on the Securities of
such series as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders of the Junior Securities of any series and creditors of the Company
other than the holders of Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee or the Holder of any Junior Security of any series
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Section
7.01, and the Holders of the Junior Securities of any series shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction in
which any dissolution, winding up, liquidation or reorganization proceedings are
pending, or certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, delivered to
the Trustee or to the Holders of the Junior Securities of such series, for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 11.04 Authorization by Holders of Junior Securities.
Each holder of a Junior Security of any series by his
acceptance thereof authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate, as between the Holder
of the Junior Security and the holders of Senior Indebtedness, the subordination
provided in this Article and appoints the Trustee his attorney-in-fact for any
and all such purposes including, without limitation, to execute, verify, deliver
and file any proofs of claim which any holder of Senior Indebtedness may at any
time require in order to prove and realize upon any rights or claims pertaining
to the Securities and to effectuate the full benefit of the subordination
contained herein. Upon failure of the Trustee so to do, any such holder of
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Senior Indebtedness shall be deemed to be irrevocably appointed the agent and
attorney-in-fact of the Holder to execute, verify, deliver and file any such
proofs of claim.
SECTION 11.05 Notices to Trustee.
The Company shall give prompt written notice to the Trustee of
any fact known to it which would prohibit the making of any payment of moneys to
or by the Trustee in respect of the Junior Securities of any series pursuant to
the provisions of this Article. 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 of moneys to or by the Trustee in respect of the Junior Securities of
any series pursuant to the provisions of this Article, unless and until a Trust
Officer of the Trustee shall have received at its Corporate Trust Office written
notice thereof from the Company or a holder or holders of Senior Indebtedness or
from any trustee or agent therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section 7.01, shall be
entitled in all respects to assume that no such facts exist; provided, however,
that if a Trust Officer of the Trustee shall not have received at least three
Business Days prior to the date upon which by the terms hereof any such moneys
may become payable for any purpose (including, without limitation, the payment
of the principal of (premium, if any) or interest on any Junior Security of any
series) with respect to such moneys the notice provided for in this Section,
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have the full power and authority to receive such moneys and to apply the
same to the purpose for which they were received and shall not be affected by
any notice to the contrary which may be received by it within three Business
Days prior to such date.
The Trustee shall be entitled to rely conclusively on the
delivery to it of a written notice by a Person representing himself to be a
holder of Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such notice has been given by a holder of Senior Indebtedness or
a trustee or agent on behalf of any such holder. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 11.06 Trustee's Relation to Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article in respect of any Senior Indebtedness
at any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in Section 7.11 or elsewhere in this Indenture shall
deprive the Trustee of any of its rights as such holder.
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With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not owe
any fiduciary duty to the holders of Senior Indebtedness and shall not be liable
to any such holder if it shall mistakenly pay over or distribute to Holders of
the Junior Securities of any series or the Company or any other Person money or
assets to which any holder of Senior Indebtedness shall be entitled by virtue of
this Article or otherwise.
SECTION 11.07 No Impairment of Subordination.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company, the Trustee or the Holder of any of the Securities of any series or
by any act, or failure to act, in good faith, by any such holder of Senior
Indebtedness, or by any noncompliance by the Company, the Trustee or the Holder
of any of the Securities of any series with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof which any such holder may
have or otherwise be charged with.
SECTION 11.08 Article 11 Not To Prevent Events of Default.
The failure to make a payment on account of principal of
(premium, if any) or interest on the Junior Securities of any series by reason
of any provision in this Article 11 shall not be construed as preventing the
occurrence of an Event of Default with respect to such series under Section
6.01.
SECTION 11.09 Paying Agents other than the Trustee.
In any case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then acting hereunder,
the term "Trustee" as used in this Article 11 shall in such case (unless the
context shall otherwise require) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article 11 in addition to or in place of the
Trustee.
SECTION 11.10 Securities Senior to Subordinated Indebtedness.
The indebtedness represented by the Securities of any series
will be senior and prior in right of payment to all Subordinated Indebtedness,
to the extent and in the manner provided in such Subordinated Indebtedness.
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ARTICLE 12
SINKING FUND
SECTION 12.01 Mandatory and Optional Sinking Fund Payments.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of any series, except as otherwise
permitted or required by any form of Security of a series issued pursuant to
this Indenture.
The minimum amounts of any sinking fund payments provided for
by the terms of Securities of any series are herein referred to as "mandatory
sinking fund payments", and any payments in excess of those minimum amounts
provided for by the terms of Securities of that series are herein referred to as
"optional sinking fund payments". If provided for by the terms of the Securities
of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of that series.
SECTION 12.02 Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of any series, as provided
for by the terms of that series (1) deliver to the Holders of outstanding
Securities of that series (other than any of such Securities previously called
for redemption or any of such Securities by mandatory sinking fund payment in
respect of which cash shall have been released to the Company), (2) apply as a
credit Securities of that series which have been redeemed either at the election
of the Company pursuant to the terms of that series of Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, provided that no Securities of such series have been previously
so credited and (3) apply as a credit Securities of that series which have been
converted or exchanged into shares of the Company's common stock or Securities
of another series pursuant to the terms of that series of Securities, provided
that such series of Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Securities of any
series in lieu of cash payments pursuant to this Section, the principal amount
of Securities of that series to be redeemed in order to exhaust the aforesaid
cash payment shall be less than $100,000, the Trustee need not call Securities
of that series for redemption, except upon the request of the Company, and such
cash payment shall be held by the Trustee or a Paying Agent and applied to the
next succeeding sinking fund payment, provided, however, that the Trustee or
such Paying Agent shall at the request of the Company from time to time pay over
and deliver to the Company any cash payment so being held by the Trustee or such
Paying Agent upon delivery by the Company to the Trustee of Securities of that
series purchase by the Company having an unpaid principal amount equal to the
cash payment requested to be released to the Company.
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SECTION 12.03 Redemption of Securities for Sinking Funds.
Not less than 60 days prior to each mandatory sinking fund
payment date for any series of Securities, the Company will deliver to the
Trustee an Officers' Certificate specifying the amount of the mandatory sinking
fund payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivery or credit of Securities
pursuant to Section 12.02 hereof, and the optional amount, if any, to be added
in cash to the mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so credited and not theretofore delivered. If such
Officers' Certificate shall specify an optional amount to be added in cash to
the mandatory sinking fund payment, the Company shall thereupon be obligated to
pay the amount therein specified. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 3.02 hereof
and cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 3.03 hereof.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provisions shall control.
SECTION 13.02 Notices.
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, or first class mail, postage prepaid (except that any notice by the
Trustee to the Company of a default or an Event of Default under this Indenture
shall be by registered or certified mail, postage prepaid, return receipt
requested), or by a nationally-recognized overnight express courier service
(which notices or communications shall be deemed received the business day after
the receipt thereof by such service), addressed as follows:
if to the Company:
Alternative Living Services, Inc.
450 North Sunnyslope Road
Suite 300
Brookfield, WI 53005
Attention: Chief Executive Officer
Telephone: (414) 789-9565
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Facsimile: (414) 789-6677
if to the Trustee:
United States Trust Company of New York
114 West 47th Street,
25th Floor
New York, New York 10036
Attention: Corporate Trust Department
Telephone: (212) 852-1000
Facsimile: (212) 852-1626
The Company or the Trustee by notice to the other may designate additional or
different addresses as shall be furnished in writing by either party. Any notice
or communication to the Company or the Trustee shall be deemed to have been
given or made as of the date so delivered if personally delivered, and five (5)
calendar days after mailing if sent by registered or certified mail (except that
a notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a Securityholder shall
be mailed to the address of such Securityholder as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any notice, as
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
If the Company mails any notice or communication to
Securityholders, it shall mail a copy to the Trustee and all Agents at the same
time.
SECTION 13.03 Communications by Holders with Other Holders.
Securityholders of any series may communicate pursuant to TIA
ss.312(b) with other Securityholders of such series with respect to their rights
under this Indenture or the Securities of such series. The Company, the Trustee,
the Registrar and anyone else shall have the protection of TIA ss.312(c).
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SECTION 13.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 13.05) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 13.05) stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
SECTION 13.05 Statements Required in Certificate and Opinion.
Each Officers' Certificate and Opinion of Counsel with respect
to compliance with a condition or covenant provided for in this Indenture shall
include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such covenant or condition has been complied with.
SECTION 13.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Securityholders. The Registrar, Paying Agent or Conversion Agent may
make reasonable rules for its functions.
SECTION 13.07 Record Date.
Whenever the Company or the Trustee solicits an act of
Securityholders of any series, the Company or the Trustee may fix in advance of
the solicitation of such act a date as the record date for determining
Securityholders of such series entitled to perform said act. The record date
shall be not more than 15 days prior to the date fixed for the solicitation of
said act.
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SECTION 13.08 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which
banks or trust companies in the city in which either the Trustee or the Company
is located are not required to be open. If a payment date is a Legal Holiday at
a place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
SECTION 13.09 Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE
AND THE SECURITIES WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 13.10 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or a Subsidiary. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
SECTION 13.11 No Recourse Against Others.
No shareholder, director or officer, as such, past, present or
future, of the Company or of any successor corporation or trust shall have any
liability for any obligation of the Company under the Securities or the
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder of a Security of any series by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
SECTION 13.12 Successors.
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 13.13 Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture.
Each signed counterpart shall be deemed an original, but all of them together
represent the same agreement.
SECTION 13.14 Table of Contents, Headings, etc.
The table of contents, cross-reference sheet and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
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SECTION 13.15 Severability.
In case any provision in this Indenture or in the Securities
of any series shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby, and a Holder shall have no claim therefor against any party
hereto.
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<PAGE> 62
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
ALTERNATIVE LIVING SERVICES, INC.
By:
-----------------------------------
Name:
Title:
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By:
-----------------------------------
Authorized Officer
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<PAGE> 1
EXHIBIT 1.2
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF DECEMBER 19, 1997
TO
INDENTURE
DATED AS OF DECEMBER 19, 1997
BETWEEN
ALTERNATIVE LIVING SERVICES, INC.
AND
UNITED STATES TRUST COMPANY OF NEW YORK
AS TRUSTEE
----------------------------------
[ ]% CONVERTIBLE SUBORDINATED DEBENTURES
DUE 2002
----------------------------------
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of December 19, 1997 between
Alternative Living Services, Inc., a Delaware corporation (the "Company"), and
United States Trust Company of New York, a New York State banking corporation
(the "Trustee"), to that certain Indenture, dated as of December 19, 1997,
between the Company and the Trustee (the "Indenture").
WHEREAS, the parties hereto have entered into the Indenture which
provides for the issuance by the Company of the individual series of securities
thereunder, upon the Company and Trustee entering into a supplemental indenture
to the Indenture authorizing such series; and
WHEREAS, the Company wishes to issue its first series of securities
thereunder, designated its[ ]% Convertible Subordinated Debentures Due 2002 (the
"Debentures"); and
WHEREAS, all acts necessary to constitute this First Supplemental
Indenture as a valid, binding and legal obligation of the Company have been done
and performed.
NOW, THEREFORE, witnesseth that, in consideration of the premises
and of the covenants contained herein, it is hereby agreed as follows:
ARTICLE ONE
The Terms of the Debentures
In accordance with Sections 2.01 and 2.02 of the Indenture, the
Company will issue the Debentures in the aggregate principal amount of
$125,000,000. Each Debenture shall be substantially in the following form:
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<PAGE> 3
ALTERNATIVE LIVING SERVICES, INC.
[ ]% Convertible Subordinated Debenture Due 2002
ALTERNATIVE LIVING SERVICES, INC., a Delaware corporation, promises to
pay to
SPECIMEN
or registered assigns, the principal sum of _____ Dollars, on _____, 2002
Cusip [ ]
Interest Payment Dates: [ ] and [ ]
Record Dates: [ ] and [ ]
Additional provisions of this Security are set forth on the other side
of this Security.
Dated: __________,
ALTERNATIVE LIVING SERVICES, INC.
By:
--------------------------------------------------
William F. Lasky
Chief Executive Officer
By:
--------------------------------------------------
Thomas E. Komula
Senior Vice President, Chief Financial Officer and
Secretary
[SEAL]
CERTIFICATE OF AUTHENTICATION
UNITED STATES TRUST COMPANY OF NEW YORK, as
Trustee, certifies that this is one of the
Securities referred to in the within
mentioned Indenture.
By:
-------------------------------------
Authorized Signatory
[SEAL]
Dated: ______________, 1997
The rest of this page intentionally left blank.
-3-
<PAGE> 4
ALTERNATIVE LIVING SERVICES, INC.
[ ]% Convertible Subordinated Debenture Due 2002
1. Interest. Alternative Living Services, Inc., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount of
this Security at the rate per annum shown above. The Company will pay interest
semiannually on [ ] and [ ] of each year beginning [ ], 1998. Interest on the
Securities will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from [ ], 1997; provided that, if there is no
existing Default in the payment of interest, and if this Security is
authenticated between a record date referred to on the face hereof and the next
succeeding interest payment date, interest shall accrue from such interest
payment date. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
2. Method of Payment. The Company will pay interest on the
Securities (except defaulted interest) to the Persons who are the registered
Holders of the Securities at the close of business on the [ ] or [ ] next
preceding the interest payment date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company, however, may pay
principal and interest by its check payable in such money. It may mail an
interest check to a Holder's registered address.
The final installment of principal of and premium, if any, on this
Security shall be payable only upon surrender of this Security at the office or
agency of the Trustee in the Borough of Manhattan, City and State of New York.
Payments of principal of and premium, if any, and interest on this Security
shall be made at the office or agency of the Trustee maintained in the Borough
of Manhattan, City and State of New York or, in the case of any such payments
other than the final payment of principal and premium, if any, at the Company's
option, by check mailed to the Person entitled thereto at such Person's address
last appearing on the Company's register.
3. Registrar and Agents. Initially, United States Trust Company of
New York will act as Registrar, Paying Agent, Conversion Agent and agent for
service of notices and demands. The Company may change any Registrar,
co-registrar, Paying Agent, Conversion Agent and agent for service of notices
and demands without notice. The Company or any of its Subsidiaries may act as
Paying Agent or Conversion Agent. The address of United States Trust Company of
New York is 114 West 47th Street, New York, New York 10036-1532.
4. Indenture; Limitations. The Company issued the Securities under
an Indenture dated as of December 19, 1997 (the "Indenture") between the Company
and United States Trust Company of New York (the "Trustee"). Capitalized terms
herein are used as defined in the Indenture unless otherwise defined herein. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.
Code " 77aaa-77bbbb) as in effect on the date of the Indenture. The Securities
are
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<PAGE> 5
subject to all such terms, and the Holders of the Securities are referred to the
Indenture and said Act for a statement of them.
The Securities are general unsecured obligations of the Company
limited to $125,000,000 aggregate principal amount. The Indenture imposes
certain limitations on the ability of the Company to, among other things, make
payments in respect of its Capital Stock, merge or consolidate with any other
Person and sell, lease, transfer or otherwise dispose of its properties or
assets.
5. Redemption by the Company. Subject to Section 7 herein, the
Company may redeem the Securities, in whole or from time to time in part, at its
option at any time on or after [ ], 2000, at a redemption price equal to 100% of
the principal amount thereof, plus accrued interest to the redemption date.
6. Notice of Redemption. Notice of redemption will be mailed at
least 30 days, but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at his registered address. Securities in
denominations larger than $1,000 principal amount may be redeemed in part, but
only in whole multiples thereof. On and after the Redemption Date interest
ceases to accrue on Securities or portions of them called for redemption.
7. Conversion. A Holder of a Security may convert such Security into
shares of common stock of the Company commencing 180 days after[December , 1997]
and thereafter at any time prior to maturity, subject to the following
provisions of this Section 7. If the Security is called for redemption, the
Holder may convert it at any time before the close of business on the date fixed
for such redemption. The initial conversion price is $[ ] per share, subject to
adjustment in certain events. In the event the holder of this Security seeks to
convert all or any portion of this Security into Common Stock at a time when the
Company does not have sufficient authorized shares of Common Stock to satisfy
such conversion, such conversion shall not be permitted, in which event the
holder will have the right to require the Company to repurchase this Security
for an amount payable in cash equal to the principal amount of this Security
plus accrued interest. The Company has agreed to seek stockholder approval at
its 1998 Annual Meeting of Stockholders of an amendment to its Restated
Certificate of Incorporation ("Certificate") increasing the number of authorized
shares of Common Stock to an amount at least sufficient to permit the conversion
of all the Securities. Until such date as the Company's Certificate has been so
amended, the Company will not (i) exercise its right to voluntarily redeem the
Debentures pursuant to Section 5 hereof or (ii) issue additional shares of
Common Stock or securities convertible into or exchangeable for Common Stock
except for (A) employee stock options to acquire Common Stock granted under the
Company's existing stock option plans and (B) shares of Common Stock issuable
upon conversion of any Security or Other Debentures or upon the exercise of
stock options.
To convert a Security, a Holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender the Security to the
Conversion Agent, (3) furnish appropriate endorsements and transfer documents if
required by the Registrar or Conversion
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<PAGE> 6
Agent and (4) pay any transfer or similar tax if required. No payment or
adjustment is to be made on conversion for interest accrued hereon or for
dividends on shares of common stock issued on conversion; provided, however,
that if a Security is surrendered for conversion after the record date for a
payment of interest and on or before the interest payment date, then,
notwithstanding such conversion, the interest falling due to such interest
payment date will be paid to the Person in whose name the Security is registered
at the close of business on such record date and any Security surrendered for
conversion during the period from the close of business on any regular record
payment date to the opening of business on the corresponding interest payment
date must be accompanied by payment of an amount equal to the interest payable
on such interest payment date. A Holder may convert a portion of a Security if
the portion is $1,000 principal amount or an integral multiple thereof.
To determine the number of shares issuable upon conversion of a
Security, divide the principal amount to be converted by the conversion price in
effect on the conversion date. The Company will deliver a check for any
fractional share.
If the Company is a party to a consolidation or merger or a transfer
or lease of all or substantially all of its assets, the right to convert a
Security into shares of common stock may be changed into a right to convert it
into securities, cash or other assets of the Company or another Person.
8. Subordination. This Security is subordinated to all Senior
Indebtedness of the Company. To the extent and in the manner provided in the
Indenture, Senior Indebtedness must be paid before any payment may be made to
any Holders of Securities. Any Securityholder by accepting this Security agrees
to the subordination and authorizes the Trustee to give it effect.
In addition to all other rights of Senior Indebtedness described in
the Indenture, the Senior Indebtedness shall continue to be Senior Indebtedness
and entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any term of any instrument relating to the
Senior Indebtedness or extension or renewal of the Senior Indebtedness.
This Security shall rank pari passu with the Company's 7%
Convertible Subordinated Debentures due 2004 and 6.75% Convertible Subordinated
Debentures due 2006 (collectively, the "Other Debentures").
9. Denominations, Transfer, Exchange. This Security is one of a duly
authorized issue of Securities of the Company designated as its [ ]% Convertible
Subordinated Debentures due 2002 limited in aggregate principal amount to
$125,000,000. The Securities are in registered form without coupons in
denominations of $1,000 principal amount and integral multiples thereof. A
Holder may register the transfer of or exchange Securities in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities
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<PAGE> 7
selected for redemption or register the transfer of or exchange any Securities
for a period of 15 days before a selection of Securities to be redeemed.
10. Persons Deemed Owners. The registered Holder of a Security may
be treated as its owner for all purposes.
11. Unclaimed Money. If money for the payment of principal or
interest on any Securities remains unclaimed for three years, the Trustee and
the Paying Agent will pay the money back to the Company at its request. After
that, Holders may look only to the Company for payment.
12. Discharge Prior to Redemption or Maturity. The Indenture will be
discharged and canceled except for certain sections thereof upon payment of all
the Securities, or upon the irrevocable deposit with the Trustee of funds or
U.S. Government Obligations maturing on or before such payment date or
Redemption Date, sufficient to pay principal, premium, if any, and interest on
such payment or redemption.
13. Amendment and Waiver. Subject to certain exceptions, without
notice to the Holders of the Securities, the Indenture or the Securities may be
amended with the consent of the Holders of at least a majority in principal
amount of the Securities then outstanding and any existing default or compliance
with any provision may be waived with the consent of the Holders of a majority
in principal amount of the Securities then outstanding. Without the consent of
or notice to any Securityholder, the Company may amend the Indenture or the
Securities to, among other things, provide for uncertificated Securities, to
establish another series of securities as permitted by the Indenture, to cure
any ambiguity, defect or inconsistency or make any other change that does not
adversely affect the rights of any Securityholder.
14. Successors. When a successor assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor will be
released from those obligations.
15. Defaults and Remedies. If an Event of Default, as defined in the
Indenture, occurs and is continuing, the Trustee or the Holders of a majority in
principal amount of Securities may declare all the Securities to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Securities may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it,
subject to the provisions of the TIA, before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in principal
amount of the Securities then outstanding may direct the Trustee in its exercise
of any trust or power with respect to the Securities. The Company is required to
file periodic reports with the Trustee as to the absence of any Default or Event
of Default.
16. Trustee Dealings with the Company. United States Trust Company
of New York, the Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not Trustee.
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<PAGE> 8
17. No Recourse Against Others. No stockholder, director, officer or
incorporator, as such, past, present or future, of the Company or any successor
corporation or trust shall have any liability for any obligation of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder of a Security
by accepting a Security waives and releases all such liability. This waiver and
release are part of the consideration for the issuance of the Securities.
18. Authentication. This Security shall not be valid until the
Trustee or an authenticating agent appointed by the Trustee signs the
certificate of authentication on the other side of this Security.
19. Abbreviations. Customary abbreviations may be used in the name
of a Securityholder or an assignee, such as: TEN COM (=tenants in common), TEN
ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=Custodian), and U/G/M/A
(=Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE. IT ALSO WILL FURNISH THE TEXT OF
THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO: ALTERNATIVE LIVING
SERVICES, INC., 450 NORTH SUNNYSLOPE ROAD, SUITE 300, BROOKFIELD, WISCONSIN
53005, ATTENTION: CHIEF FINANCIAL OFFICER.
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<PAGE> 9
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below and have
your signature guaranteed:
For value received, I or we assign and transfer this Security to
(INSERT ASSIGNEE'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
-------------------------------------------------------------------
-------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
-------------------------------------------------------
agent to transfer this
- -------------------------------------------------------
Security on the books of the Company. The agent may substitute another to act
for him.
- ------------------------------------------------------------------------------
Date:
------------------------------------------------------------------------
Your signature:
---------------------------------------------------------------
(Sign exactly as your name appears on the other
side of this Security)
Signature Guarantee:
----------------------------------------------------------
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<PAGE> 10
CONVERSION NOTICE
To convert this Security into shares of common stock of the Company, check the
box:
-------------
-------------
To convert only part of this Security, state the principal amount to be
converted (which must be a minimum of $1,000 or any multiple thereof):
-----------------------------------------------------
$
-----------------------------------------------------
If you want the Security certificate, if any, made out in another person's name,
fill in the form below:
(INSERT OTHER PERSON'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
-----------------------------------------------------------------
-----------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type other person's name, address and zip code)
- --------------------------------------------------------------------------------
Date:
-------------------------------------------------------------------------
Your signature:
---------------------------------------------------------------
(Sign exactly as your name appears on the other
side of this Security)
Signature Guaranteed By:
---------------------------------
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<PAGE> 11
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the date first written
above.
ALTERNATIVE LIVING SERVICES, INC.
By:
-----------------------------------------
Name:
Title:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By:
-----------------------------------------
Authorized Signatory
