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As filed with the Securities and Exchange Commission on , 1999
Registration No. _________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DEL WEBB CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 86-0077724
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification Number)
6001 North 24th Street
Phoenix, Arizona 85016
(Address, including zip code, of principal executive offices of Registrant)
Registrant's telephone number including area code: (602) 808-8000
Robertson C. Jones, Esq.
Senior Vice President and General Counsel
Del Webb Corporation
6001 North 24th Street
Phoenix, Arizona 85016
(602) 808-8000
(Name, address, including zip code, and telephone number, including area code,
of agent for service of process)
Copy to:
Steven Meiers, Esq.
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement from the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
(the Facing Page is continued on the following page)
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(the Facing Page is continued from the previous page)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum Amount of
Title of Each Class of Amount to be Offering Price Aggregate Registration
Securities to be Registered Registered Per Unit (1) Offering Price (1) Fee
- --------------------------------------------------- ------------------- ---------------- ------------------- ----------------
<S> <C> <C> <C> <C>
Debt Securities............................... (2) 100% (2) (2) see below
Preferred Stock............................... (2), (3) (2) (2) see below
Depositary Shares............................. (2), (4) (2) (2) see below
Common Stock (2), (5) (2) (2) see below
Stock Purchase Warrants....................... (2), (6) (2) (2) see below
Totals........................... $250,000,000(2),(3), $44,250(8)
(4), (5), (6), (7)
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) This Registration Statement covers the principal amount of Debt Securities
(as to Debt Securities offered at an original issue discount, the offering
price thereof) and, subject to notes 3, 4, 5 and 6, the number of other
Securities listed above as may from time to time be issued at indeterminate
prices, but with an aggregate initial offering price for all such Debt
Securities and Other Securities not to exceed $250,000,000. The
Registration Statement also includes Debt Securities issued by the
Registrant that may be issued in exchange for such Preferred Stock
("Additional Debt Securities"), provided that the Additional Debt
Securities that may be issued in exchange for such Preferred Stock will, at
the time of issuance, be either (i) covered by a then-effective
Registration Statement, if required, or (ii) issuable without registration
by virtue of the exemption contained in Section 3(a)(9) of the Securities
Act of 1933, as amended (or, if applicable, another then-available
exemption). In addition and without limitation, the Preferred Stock covered
by this Registration Statement may not be issued in exchange for
outstanding securities or in any other transaction in which such securities
are required to be covered by a registration statement on Form S-4 or as to
which this Form S-3 Registration Statement may not be used for any other
reason. The Amount to be Registered, Proposed Maximum Offering Price Per
Unit, Proposed Maximum Offering Price and Amount of Registration Fee with
respect to such Preferred Stock includes such Additional Debt Securities.
(3) Includes Preferred Stock issued other than on conversion of Debt Securities
or exercise of Stock Purchase Warrants. Also includes such presently
indeterminate number of additional shares of Preferred Stock ("Additional
Preferred Stock") as may be issued on (i) conversion of the Debt
Securities, if and to the extent convertible into Preferred Stock, and (ii)
exercise of any Stock Purchase Warrants as may be issued, if and to the
extent exercisable for Preferred Stock. The Amount to be Registered,
Proposed Maximum Offering Price Per Unit, Proposed Maximum Aggregate
Offering Price and Amount of Registration Fee with respect to such Debt
Securities and Warrants include such Additional Preferred Stock.
(4) The Registration Statement covers such indeterminate number of Depositary
Shares as may be issued if the Registrant elects to offer fractional
interests in shares of some or all of the Preferred Stock. The Amount to be
Registered, Proposed Maximum Offering Price Per Unit, Proposed Maximum
Aggregate Offering Price and Amount of Registration Fee (i) with respect to
such Preferred Stock include such Depositary Shares and (ii) without
duplication, with respect to the Depositary Shares, include such Preferred
Stock.
(5) Includes Common Stock issued other than on conversion of Debt Securities,
conversion of Preferred Stock or exercise of Stock Purchase Warrants. Also
includes such presently indeterminate number of shares of additional Common
Stock ("Additional Common Stock") as may be issued on (i) conversion of the
Debt Securities, if and to the extent convertible into Common Stock, (ii)
conversion of any Preferred Stock as may be issued separately, on
conversion of Debt Securities or exercise of Stock Purchase Warrants, if
and to the extent such Preferred Stock is convertible into Common Stock or
(iii) exercise of any Stock Purchase Warrants as may be issued, if and to
the extent exercisable for Common Stock. The Amount to be Registered,
Proposed Maximum Offering Price Per Unit, Proposed Maximum Aggregate
Offering Price and Amount of Registration Fee with respect to such Debt
Securities, Preferred Stock and Stock Purchase Warrants include such
Additional Common Stock.
(6) Includes Stock Purchase Warrants which may be issued other than as part of
Units of Stock Purchase Warrants and other Securities. Also includes
additional Stock Purchase Warrants ("Additional Stock Purchase Warrants")
which may be offered as part of Units of Stock Purchase Warrants and other
Securities. The Amount to be Registered, Proposed Maximum Offering Price
Per Unit, Proposed Maximum Aggregate Offering Price and Amount of
Registration Fee with respect to such other Securities include such
Additional Stock Purchase Warrants.
(7) Of the $250,000,000 of securities being offered hereunder, pursuant to Rule
429(b) under the Securities Act of 1933, as amended, an aggregate of
$100,000,000 of securities are being carried forward from the Registrant's
prior Registration Statement on Form S-3 (SEC File No. 333-63671).
(8) This amount does not include $29,500 previously paid in connection with the
$100,000,000 of securities being carried forward from the Registrant's
prior Registration Statement, as described in note (7).
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PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS
CONTAINED IN THIS REGISTRATION STATEMENT ALSO RELATES TO SECURITIES REGISTERED
PURSUANT TO THE PRIOR REGISTRATION STATEMENT REFERRED TO IN NOTE (7) TO THE
PRECEDING TABLE.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SUCH
SECTION 8(a), MAY DETERMINE.
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PROSPECTUS
$250,000,000
[LOGO DEL WEBB CORPORATION]
BY THIS PROSPECTUS, WE MAY OFFER
ONE OR A COMBINATION OF:
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
STOCK PURCHASE WARRANTS
This prospectus may not be used to offer and sell securities unless
accompanied by a prospectus supplement.
We will provide the specific terms of these securities in supplements
to this prospectus. You should read this prospectus and any supplements
carefully before you invest in these securities.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The securities may be offered through one or more different plans of
distribution, including offerings through underwriters.
The date of this prospectus is __________, 1999
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TABLE OF CONTENTS
Page
Del Webb Corporation............................................... 3
The Securities We May Offer........................................ 3
Use of Proceeds.................................................... 4
Ratio of Earnings to Fixed Charges................................. 4
Description of Debt Securities..................................... 4
Description of Warrants............................................ 10
Description of Capital Stock....................................... 11
Plan of Distribution............................................... 12
Legal Matters...................................................... 12
Experts............................................................ 12
Where You Can Find More Information................................ 13
Incorporation of Documents by Reference............................ 13
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DEL WEBB CORPORATION
We are Del Webb Corporation, one of the largest homebuilders in the United
States. We develop and sell homes in active adult communities and in family and
country club communities.
We operate in Arizona, California, Florida, Illinois, Nevada, South
Carolina and Texas. Our active adult communities, primarily our Sun City
communities, are generally large-scale, master planned adult communities with
extensive amenities for people age 55 and over. Our family and country club
communities are open to people of all ages and are generally developed in
metropolitan or market areas in which we also develop our active adult
communities. Within our communities, we are usually the exclusive developer of
homes.
We incorporated in 1946 in Arizona and reincorporated in 1994 in Delaware.
Our executive offices are located at 6001 North 24th Street, Phoenix, Arizona
85016 and our telephone number is (602) 808-8000. As used in this prospectus and
the accompanying prospectus supplement, the terms "we", "our", "ourselves" and
"us" refer to Del Webb Corporation and our subsidiaries unless otherwise
indicated.
THE SECURITIES WE MAY OFFER
TYPES OF SECURITIES
The securities we may offer and sell by this prospectus are one or a
combination of:
- debt securities. The debt securities may be senior, senior
subordinated or subordinated in ranking. Any of the debt securities,
regardless of ranking, may be either non-convertible or convertible
into preferred or common stock;
- preferred stock, which may be either non-convertible or convertible
into common stock;
- common stock; and
- warrants entitling the holders to purchase preferred or common stock.
ADDITIONAL INFORMATION
When we offer and sell the securities by this prospectus, we will deliver
with it a prospectus supplement in which we will described the terms of those
securities. In each prospectus supplement we will include the following
information as to the securities offered by that prospectus supplement:
- the type and amount of securities which we propose to sell;
- the initial public offering price of those securities;
- the names of any underwriters or agents through or to which we will
sell those securities and their compensation;
- information about securities exchanges or automated quotation systems
on which those securities will be listed or traded;
- material United States federal income tax considerations applicable to
those securities; and
- any other material information about the offering and sale of those
securities.
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USE OF PROCEEDS
Unless otherwise indicated in the accompanying prospectus supplement, we
will use the net proceeds from the sale of the securities to reduce outstanding
balances under our principal credit facility, to fund land acquisitions and
development of new projects and for general corporate purposes. We may reborrow
amounts repaid under our principal credit facility in the future.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for
the five years ended June 30, 1998 and the nine months ended March 31, 1998 and
1999:
<TABLE>
<CAPTION>
Nine Months ended
Year ended June 30, March 31,
------------------------------------------------ -----------------
1994 1995 1996 1997 1998 1998 1999
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges (unaudited): 1.30x 1.59x _(1)_ 2.09x 1.79x 1.59x 1.57x
</TABLE>
- ------------
(1) Our earnings were inadequate to cover our fixed charges by $21.6 million in
our fiscal year ended June 30, 1996 because of a $65.0 million non-cash
loss from impairment of our southern California real estate inventories.
The loss was incurred in connection with our adoption of Statement of
Financial Accounting Standards No. 121, Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to Be Disposed Of. See Note 12
to our Consolidated Financial Statements included in our Annual Report on
Form 10-K for the fiscal year ended June 30, 1996.
The ratio of earnings to fixed charges is calculated by dividing earnings
by fixed charges. For this purpose "earnings" means earnings (loss) from
continuing operations before income taxes plus (a) fixed charges and interest
amortized to cost of sales minus (b) interest incurred. "Fixed charges" means
total interest incurred, whether capitalized or expensed, including the portion
of rent expense representative of interest costs, plus (i) debt-related fees and
(ii) amortization of deferred financing costs.
DESCRIPTION OF DEBT SECURITIES
The debt securities will be our unsecured senior, senior subordinated or
subordinated debt. All debt securities will be issued under a senior debt,
senior subordinated debt or subordinated debt indenture between a trustee and
us. Unless otherwise stated in the accompanying prospectus supplement, the
trustee under the first indenture will be Bank of Montreal Trust Company. Except
to the extent set forth in the prospectus supplement with respect to particular
Debt Securities and for the provisions relating to subordination, including the
fact that senior subordinated debt securities will rank senior to the
subordinated debt securities, the indentures are substantially identical to one
another.
The debt securities offered by this prospectus and the accompanying
prospectus supplement are referred to below as the "Offered Debt Securities".
The Offered Debt Securities may be convertible into our common or preferred
stock, if and to the extent described in the accompanying prospectus supplement,
or issued in combination with other securities. In these cases, the accompanying
prospectus supplement will describe any applicable material federal income tax
consequences.
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Offered Debt Securities will be issued pursuant to an indenture. The
following summaries of selected material provisions of the Offered Debt
Securities and the indentures are not complete. They will be modified and
supplemented by the prospectus supplement for the Offered Debt Securities.
GENERAL
The prospectus supplement will describe the material terms of the Offered
Debt Securities offered by that prospectus supplement and the indenture for
those Offered Debt Securities, including:
- whether those Offered Debt Securities are our senior, senior
subordinated or subordinated debt;
- the specific designation, aggregate principal amount, purchase price
and denomination;
- the date of maturity;
- the interest rate or rates or the method by which the interest rate
will be determined;
- the date from which interest will accrue and dates on which any
interest will be payable;
- our rights to defer interest, if any;
- the place or places where the principal of, premium, if any, and any
interest will be payable;
- any redemption, repayment or sinking fund provisions;
- any obligation on our part to offer to purchase those Offered Debt
Securities in the event of a change of control;
- whether those Offered Debt Securities are convertible into our
preferred stock or common stock and the terms of the security into
which they are convertible, the conversion price, other terms related
to conversion and any related anti-dilution protections;
- whether those Offered Debt Securities will be issued in combination
with any of our other securities;
- any applicable material federal income tax consequences;
- any limitations on any additional debt we may incur; and
- any other material terms of those Offered Debt Securities, including
any material covenants and what events will constitute events of
default.
In addition to the subordination described under "Subordination" below and
as may be described in the accompanying prospectus supplement, the senior,
senior subordinated and subordinated debt securities are also subject to
"structural subordination." This is because we are a holding company, operate
solely through our subsidiaries and are dependent upon them for our cash flow.
This will affect our rights and the rights of our creditors, including holders
of Offered Debt Securities, to participate in the assets of any of our
subsidiaries upon its liquidation or recapitalization. This is because those
rights will be subject to the prior claims of the subsidiary's creditors,
including beneficiaries of guarantees by the subsidiary, except to the extent we
are a creditor with recognized claims against the subsidiary. Even in that case,
however, our claims would still be effectively junior to any indebtedness of the
subsidiary that is secured by the assets of the subsidiary. Our claims would
also be junior to any indebtedness of the subsidiary which is senior to any debt
or other claims held by us.
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In addition, amounts outstanding from time to time under our $500 million
principal credit facility are guaranteed by subsidiaries that hold substantially
all of our assets. The Offered Debt Securities, including any senior debt
securities, will not be so guaranteed. As a result, the holders of the debt
outstanding under our principal credit facility will have a claim against the
assets of our subsidiaries before those assets are available to make payments
due on the debt securities.
Because we conduct all of our operations through subsidiaries, we are
dependent on dividends or other distributions from our subsidiaries to make
payments on our indebtedness. State law as well as contractual obligations can
restrict the ability of a corporation to distribute funds to its shareholders.
Any existing material contractual restrictions on the ability of our
subsidiaries to distribute funds to us will be disclosed in the accompanying
prospectus supplement. Except as may be described in the accompanying prospectus
supplement, the indenture for the Offered Debt Securities will not restrict our
ability to enter into contracts in the future that restrict our subsidiaries
from making dividends, loans or advances to us. Payments to us from our
subsidiaries also are contingent upon the earnings of our subsidiaries and are
subject to various business considerations, such as the subsidiaries' working
capital needs.
The debt securities will bear interest at either a fixed rate or a floating
rate. Debt securities bearing no interest or interest at a rate below the
prevailing market rate when they are issued or which are issued in combination
with our other securities may be deemed sold at a discount below their stated
principal amount for federal and state tax purposes. Also, the holders of any
debt securities as to which we have the right to defer interest may be allocated
interest income for federal and state income tax purposes without receiving
equivalent, or any, interest payments. Any material federal income tax
considerations applicable to any Offered Debt Securities issued or deemed issued
at a discount or which are issued at par that but treated as having been issued
at a discount will be described in the prospectus supplement for those Offered
Debt Securities.
SUBORDINATION
The senior subordinated and subordinated debt securities will be
subordinate and junior in right of payment to all of our "Senior Debt." Unless
otherwise provided in the accompanying prospectus supplement, the indenture for
the senior subordinated or subordinated Offered Debt Securities will define
"Senior Debt" as all present or future indebtedness we create, incur, assume or
guarantee. However, indebtedness which provides that it is not senior in right
of payment to those Offered Debt Securities will not be "Senior Debt". Also,
unless otherwise provided in the accompanying prospectus supplement, Senior Debt
will not include:
- any of our indebtedness to any of our subsidiaries;
- any of our trade payables; or
- guarantees by us of current or future outstanding indebtedness.
Each indenture for senior subordinated debt securities will provide that we
will not issue any indebtedness that is subordinated to any of our Senior Debt
and senior to our senior subordinated debt securities. Indentures for
subordinated debt securities will not contain a similar provision.
By reason of the subordination described above, in the event of our
dissolution, insolvency, bankruptcy or other similar proceedings, upon any
distribution of our assets:
- holders of Senior Debt will be entitled to be paid in full before
payments may be made on senior subordinated and subordinated debt
securities, and the holders of senior subordinated and subordinated
debt securities will be required to pay over their share of such
distributions to the holders of Senior Debt until the Senior Debt is
paid in full;
- holders of senior subordinated debt will be entitled to be paid in
full before payments may be made on subordinated debt securities, and
holders of subordinated debt securities will be required
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to pay over their share of such distributions to the holders of
senior subordinated debt until the senior subordinated debt is
paid in full; and
- our creditors who are not holders of senior subordinated or
subordinated debt securities may recover less, ratably, than
holders of Senior Debt and may recover more, ratably, than the
holders of the senior subordinated or subordinated debt
securities, and our creditors who are not holders of subordinated
debt securities may recover less, ratably, than holders of Senior
Debt and may recover more, ratably, than holders of subordinated
debt securities.
As a result, this subordination and the "structural subordination" described
under "General" above may each cause a reduction or elimination of payments to
the holders of all senior subordinated and subordinated debt securities or all
subordinated debt securities.
Except as otherwise described in the accompanying prospectus supplement, no
payment of principal of or interest on any senior subordinated or subordinated
Offered Debt Securities may be made, and we may not acquire any senior
subordinated or subordinated Offered Debt Securities, if:
- any default with respect to Senior Debt that permits the
acceleration of the maturity of the Senior Debt occurs and is
continuing; and
- that default is either the subject of judicial proceedings or we
receive notice of the default from a holder of Senior Debt
entitled to give that notice.
By reason of these provisions, if we default on any Senior Debt that is
presently existing or may be incurred in the future, payments of principal of
and interest and premium, if any, on the senior subordinated or subordinated
Offered Debt Securities may not be permitted until the Senior Debt is paid in
full. However, except as otherwise described in the accompanying prospectus
supplement, we may resume payments in respect of the senior subordinated or
subordinated Offered Debt Securities and may acquire senior subordinated or
subordinated Offered Debt Securities if:
- 179 days pass after notice is given, if the default with respect
to that Senior Debt is not then the subject of judicial
proceedings; or
- the default with respect to that Senior Debt is cured or waived.
Under our $500 million principal credit facility, we are restricted from
acquiring our subordinated indebtedness, including any senior subordinated or
subordinated Offered Debt Securities, prior to the term of the principal credit
facility as it may be extended from time to time. The acquisition of
subordinated debt securities issued pursuant a subordinated debt indenture is
also restricted prior to March 1, 2003, February 15, 2006, January 15, 2008, May
1, 2009 and February 15, 2010 by the indentures for our $100 million of 9-3/4%
Senior Subordinated Debentures due 2003, $100 million of 9% Senior Subordinated
Debentures due 2006, $150 million of 9-3/4% Senior Subordinated Debentures due
2008, $200 million of 9-3/8% Senior Subordinated Debentures due 2009 and $150
million of 10-1/4% Senior Subordinated Debentures due 2010, respectively. The
prospectus supplement or the information we incorporate by reference sets forth
the approximate amount of Senior Debt and senior subordinated debt outstanding
as of the end of our most recent fiscal quarter.
EVENTS OF DEFAULT
Except as may be described in the accompanying prospectus supplement, an
"Event of Default" will occur under the indenture for any Offered Debt
Securities if:
- we default for 30 days in payment of any interest on those
Offered Debt Securities;
- we default in payment of any principal of those Offered Debt
Securities, either at maturity or upon any redemption, by
declaration or otherwise;
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- we default for 60 days after written notice in the performance of
any other agreement or covenant in, or provision of, those
Offered Debt Securities or that indenture;
- we default under the other indebtedness specified in the
applicable prospectus supplement for the Offered Debt Securities;
- we fail for 60 days to discharge final judgments against us and
our subsidiaries for the payment of the amount specified in the
applicable prospectus supplement; or
- specific bankruptcies, insolvencies or reorganizations occur.
Except as otherwise stated in the accompanying prospectus supplement, each
indenture will provide that if an Event of Default, other than an Event of
Default due to events of bankruptcy, insolvency or reorganization, has occurred
and is continuing, either the trustee or the holders of 25 percent or more in
principal amount of the Offered Debt Securities outstanding under that indenture
may then declare the principal and interest of all Offered Debt Securities
outstanding under that indenture due and payable immediately.
Unless otherwise stated in the accompanying prospectus supplement, the
indenture for the Offered Debt Securities will allow the trustee, subject to its
duty during a default to act with the required standard of care, to be
indemnified by the holders of the Offered Debt Securities before proceeding to
exercise any right or power under the indenture at the holders' request. Except
as otherwise stated in the accompanying prospectus supplement, the holders of a
majority in principal amount of the outstanding Offered Debt Securities may
direct the time, method and place of conducting any proceeding for any remedy
available to the trustee under the indenture for those Offered Debt Securities
or exercising any trust or power conferred on that trustee.
Unless otherwise stated in the accompanying prospectus supplement, the
indenture for the Offered Debt Securities will provide that no holder of Offered
Debt Securities may institute any action against us, except actions for payment
of overdue principal or interest, unless:
- the holder previously has given the trustee under the indenture
for those Offered Debt Securities written notice of the default
and its continuance;
- the holders of at least 25 percent in principal amount of the
Offered Debt Securities outstanding have requested that trustee
to institute the action and offered the trustee reasonable
indemnity;
- the trustee has not taken the action within 60 days of the
request; and
- the holders of a majority in principal amount of those Offered
Debt Securities have not given the trustee any direction
inconsistent with the request.
None of our directors, officers, employees or shareholders, as such, will
have any liability for any of our obligations under the Offered Debt Securities
or the indenture for them. Holders, by their acceptance of the Offered Debt
Securities, will waive and release all such liability.
DISCHARGE AND DEFEASANCE
Except as otherwise provided in the accompanying prospectus supplement, we
can discharge or defease our obligations under the Offered Debt Securities and
the indenture for the Offered Debt Securities as described in this section.
Under terms satisfactory to the trustee, we may discharge obligations to
holders of the Offered Debt Securities that have either become due and payable
or are by their terms due and payable within one year or scheduled for
redemption within one year. We can do this by irrevocably depositing with the
trustee cash or United States government obligations, as trust funds, in an
amount certified by us to be sufficient to pay at maturity, or upon redemption,
the principal of and interest on the Offered Debt Securities.
We may "defease" our obligations to holders of the Offered Debt Securities
in two ways. At any time we can discharge some or all of our obligations to
holders of the Offered Debt Securities. However, we cannot
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avoid our obligation to register the transfer or exchange of Offered Debt
Securities, replace any temporary, mutilated, destroyed, lost or stolen Offered
Debt Securities or maintain an office or agency in respect of the Offered Debt
Securities. We refer to this as "total defeasance". Alternatively, we may be
released from the obligations imposed by specific portions of the indenture for
the Offered Debt Securities and omit to comply with those provisions without an
Event of Default occurring. We refer to this as "covenant defeasance". Except as
otherwise stated in the accompanying prospectus supplement, total defeasance or
covenant defeasance will occur only if, among other things:
- we irrevocably deposit with the trustee cash or United States
government obligations, as trust funds, in an amount certified by
us to be sufficient to pay at maturity the principal of and
interest on all Offered Debt Securities outstanding;
- no Event of Default under the indenture for the Offered Debt
Securities has occurred and is continuing;
- the defeasance or covenant defeasance would not cause us to be in
default under any agreement to which we are a party or by which
we are bound; and
- we deliver to the trustee an opinion of counsel to the effect
that the holders of the Offered Debt Securities will not
recognize income, gain or loss for federal income tax purposes as
a result of the defeasance or covenant defeasance and that there
will not otherwise be an alteration of those holders' federal
income tax treatment of principal and interest payments on those
securities.
MODIFICATIONS TO THE INDENTURE
Unless otherwise stated in the accompanying prospectus supplement, each
indenture will provide that we and the trustee may enter into supplemental
indentures without the consent of the holders of debt securities to, among other
things:
- add covenants, conditions and restrictions for the protection of
the holders of the debt securities outstanding under that
indenture or to surrender any of our rights;
- cure any ambiguity or correct any inconsistency in that
indenture;
- make any change that does not adversely affect the legal rights
of holders of those debt securities;
- modify, eliminate or add to the provisions of that indenture to
the extent necessary to qualify the indenture under applicable
federal statutes; and
- make any other changes in that indenture before debt securities
are issued under it, provided the changes are not prohibited by
the Trust Indenture Act of 1939, as amended.
Unless otherwise stated in the accompanying prospectus supplement, each
indenture also will permit the trustee and us, with the consent of a majority in
principal amount of the debt securities outstanding under that indenture, to
change the indenture and the rights of the holders of those debt securities.
However, without the consent of the holder of each of those debt securities then
outstanding, the trustee and we may not:
- reduce the amount of those debt securities whose holders must
consent to an amendment or supplement to or waiver under that
indenture;
- reduce the rate of or change the time for payment of interest on
any of those debt securities;
- reduce the principal of or change the fixed maturity of any of
those debt securities; or
9
<PAGE> 13
- waive a default in the payment of the principal of, or interest
on, any of those debt securities.
Unless otherwise stated in the accompanying prospectus supplement, no
indenture for senior subordinated or subordinated Offered Debt Securities may be
amended to alter the subordination of any outstanding senior subordinated or
subordinated debt securities. However, such an amendment is permitted with the
consent of each holder of Senior Debt and, as to subordinated debt securities,
also senior subordinated debt that would be adversely affected.
CONCERNING THE TRUSTEE
Unless otherwise stated in the accompanying prospectus supplement, the
trustee under the first indenture under which we will issue debt securities will
be Bank of Montreal Trust Company. Bank of Montreal Trust Company is also the
trustee under the indenture for our $150 million of 10-1/4% Senior Subordinated
Debentures due 2010. An affiliate of Bank of Montreal Trust Company is a lender
under one of our short-term credit facilities. Unless stated in the prospectus
supplement, Bank of Montreal Trust Company or any other trustee may also be the
trustee under any of our other indentures and any trustee or its affiliates may
be a lender to us, including under our principal credit facility, and may from
time to time have other business arrangements with us. The indenture will
contain limitations on the rights of the trustee, should it or its affiliates
then be our creditors, to obtain payment of claims in specified cases or to
realize on property received in respect of any such claim, as security or
otherwise. Except as otherwise stated in the accompanying prospectus supplement,
if the trustee or its affiliates acquire any conflicting interest, the conflict
must be eliminated or the trustee must resign.
Except as otherwise stated in this prospectus or in the accompanying
prospectus supplement, the trustee will be under no obligation to exercise any
of its rights or powers under the indenture at the request of any holder of debt
securities, unless the holder has offered the trustee satisfactory security and
indemnity.
GOVERNING LAW
Unless otherwise stated in the accompanying prospectus supplement, the
indenture for the Offered Debt Securities and the Offered Debt Securities will
be governed by New York law.
DESCRIPTION OF WARRANTS
GENERAL
Except as otherwise set forth in the accompanying prospectus supplement,
the warrants will be issued in fully registered form under a warrant agreement
between a warrant agent and us. The statements in this prospectus relating to
the warrants and the warrant agreement are summaries and are not complete.
The prospectus supplement will describe:
- how may shares of preferred or common stock will be issued upon
the exercise of each warrant and under what circumstances that
number of shares may be adjusted;
- the exercise price of the warrants, whether the price may be paid
by surrender of our outstanding debt securities and under what
circumstances the price may be changed or adjusted;
- the rights, if any, of warrantholders upon our merger,
consolidation or sale;
- when the warrants expire;
- whether or not we can call the warrants and, if so, the call
price;
- whether or not unexercised warrants will convert into our
preferred or common stock upon expiration and, if so, the
conversion rate;
10
<PAGE> 14
- the time, place and method of exercising the warrants; and
- any other material terms of the warrants.
Holders of warrants are not entitled, by virtue of being holders, to
receive dividends, vote or exercise any other rights as a shareholder until the
warrants are exercised. The warrant agreement and the warrants will provide that
none of our directors, officers, employees or shareholders, as such, will have
any liability under the warrants or the warrant agreement. The warrant agreement
and the warrants will also provide that each holder of the warrants, by
accepting the warrants, waives and releases all such liability.
Unless otherwise stated in the accompanying prospectus supplement, the
warrant agreement and the warrants will be governed by New York law.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 30,000,000 shares of common stock,
$.001 par value, and 10,000,000 shares of preferred stock, $.001 par value, of
which _________ shares of common stock were issued and outstanding on June 30,
1999. No shares of preferred stock were outstanding at that date.
COMMON STOCK
Subject to the rights of holders of any outstanding preferred stock, the
holders of shares of common stock are entitled to share ratably in dividends
declared out of legally available assets. At the date of this prospectus our
ability to pay dividends on the common stock is limited by our $500 million
principal credit facility and the indentures for our $100 million of 9-3/4%
Senior Subordinated Debentures due 2003, $100 million of 9% Senior Subordinated
Debentures due 2006, $150 million of 9-3/4% Senior Subordinated Debentures due
2008, $200 million of 9-3/8% Senior Subordinated Debentures due 2009 and $150
million of 10-1/4% Senior Subordinated Debentures due 2010.
Each holder of common stock is entitled to one vote per share held on all
matters submitted to a vote of the shareholders. Holders of common stock are not
entitled to cumulative voting in the election of directors. There are no
conversion or preemptive rights associated with the common stock and the common
stock is not subject to redemption or assessment. Subject to the rights of
holders of any outstanding preferred stock, upon our liquidation, dissolution or
winding up, any assets legally available for distribution to shareholders as
will be distributed ratably among the holders of the common stock. The common
stock offered pursuant to this prospectus will be fully paid and nonassessable.
Shares of our common stock are listed on the New York and Pacific Stock
Exchanges.
PREFERRED STOCK
The authorized shares of preferred stock are issuable, as determined by the
Board of Directors and without further shareholder approval, in one or more
series and with such rights, privileges and preferences as are fixed by the
Board of Directors. With regard to the preferred stock we offer pursuant to this
prospectus, the prospectus supplement will describe:
- any voting rights of the preferred stock;
- the dividend rate, if any, on the preferred stock;
- whether the preferred stock is convertible into common stock and,
if so, at what rate;
- any anti-dilution protections;
- any redemption, repayment or sinking fund provisions;
- any liquidation preferences;
11
<PAGE> 15
- whether the preferred stock is exchangeable for debt securities
and, if so, the exchange rate and the material terms of the debt
securities for which it is exchangeable; and
- any other material terms of the preferred stock.
PLAN OF DISTRIBUTION
We may sell securities pursuant to this prospectus to one or more
underwriters for public offering and sale and, in those jurisdictions where we
are authorized to do so, to investors directly or through agents. Any
underwriter or agent involved in the offer and sale of the securities will be
named in the accompanying prospectus supplement.
Underwriters may offer and sell the securities at a fixed price or prices
which may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. We also may
authorize dealers, acting as our agents, to offer and sell the securities upon
other terms and conditions that are described in the accompanying prospectus
supplement. In connection with the sale of the securities, underwriters may
receive compensation from us in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of the securities
for whom they may act as agent. Underwriters may sell the securities to or
through dealers, and these dealers may receive compensation such as discounts,
concessions or commissions from the underwriters or from the purchasers for
which they act as agents.
We will describe any compensation we pay to underwriters and any
concessions or commissions which underwriters allow to participating dealers in
the prospectus supplement. Dealers and agents participating in the distribution
of the securities may be deemed to be underwriters, and any discounts and
commissions received by them and any profit realized by them on resale of the
securities may be deemed to be underwriting discounts and commissions.
Underwriters, dealers and agents may be entitled, under agreements entered into
with us, to indemnification against and contribution toward liabilities incurred
under the Securities Act of 1933, as amended, and other civil liabilities.
The debt securities, the preferred stock and the warrants will be new
issues of securities with no established trading market. Any underwriters or
agents to or through which we sell securities for public offering and sale may,
but are not obligated to, make a market in these securities, and any of them may
discontinue any market making at any time without notice. We can give no
assurance as to the liquidity of or trading market for any debt securities,
preferred stock or warrants.
LEGAL MATTERS
Gibson, Dunn & Crutcher LLP has rendered an opinion, which is filed as an
exhibit to the registration statement described below under "Where You Can Find
More Information", with respect to the validity of the debt securities,
preferred stock, common stock and warrants covered by this prospectus. If
counsel for any underwriters passes on legal matters in connection with an
offering made by this prospectus, we will name that counsel in the accompanying
prospectus supplement.
EXPERTS
The consolidated financial statements and schedules of Del Webb Corporation
and subsidiaries as of June 30, 1998 and 1997, and for each of the years in the
three-year period ended June 30, 1998, have been incorporated by reference
herein and in the registration statement in reliance upon the report of KPMG
LLP, independent certified public accountants, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and auditing. The
report of KPMG LLP covering the June 30, 1996 financial statements refers to a
change in the method of accounting for long-lived assets.
12
<PAGE> 16
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended. You may read and copy this
information at the following locations of the Commission:
<TABLE>
<S> <C> <C>
Judiciary Plaza, Room 10024 Seven World Trade Center, Suite 1300 Citicorp Center
450 Fifth Street, N.W. Street New York, New York 10004 500 West Madison Street, Suite 1400
Washington, D.C. 20549 Chicago, Illinois 60661
</TABLE>
You can also obtain copies of this information by mail from the Public
Reference Room of the Commission, 450 Fifth Street, N.W., Room 10024,
Washington, D.C. 20549, at prescribed rates. You may obtain information on the
operation of the Public Reference Room by calling the Commission at (800)
SEC-0330 ((800) 732-0330).
The Commission also maintains an internet world wide web site that
contains reports, proxy statements and other information about issuers, like us,
who file electronically with the Commission. The address of that site is:
http://www.sec.gov.
You can also inspect reports, proxy statements and other information
about us at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005.
We have filed with the Commission a registration statement on Form S-3
with respect to the securities we are offering. The registration statement,
including the exhibits and schedules filed with it, contains additional relevant
information about us and the securities offered that, as permitted by the rules
and regulations of the Commission, we have not included in this prospectus.
INCORPORATION OF DOCUMENTS BY REFERENCE
The Commission allows us to "incorporate by reference" information into
this prospectus. This means that we can disclose important information to you by
referring you to another document filed separately with the Commission. The
information incorporated by reference is considered to be part of this
prospectus, except to the extent superseded by information we file subsequently
with the Commission or by information that is included directly in this
prospectus or the accompanying prospectus supplement.
This prospectus includes, by incorporation reference, the documents
listed below. We previously filed each of the documents with the Commission.
They contain important information about us and our financial condition.
<TABLE>
<CAPTION>
Filing Period
---------------------------------------- ------------------------
<S> <C>
Annual Report on Form 10-K Year ended June 30, 1998 Quarterly
Report on Form 10-Q Quarter ended September 30, 1998 Quarterly
Report on Form 10-Q Quarter ended December 31, 1998 Quarterly
Report on Form 10-Q Quarter ended March 31, 1999 Current Report
on Form 8-K Filed February 18, 1999
</TABLE>
We also incorporate by reference in this prospectus all additional
documents we file with the Commission under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act between the date of this prospectus and the date
of the closing of each offering of securities pursuant to this prospectus. These
documents include periodic reports, such as Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as proxy
statements.
13
<PAGE> 17
You can obtain any of the documents incorporated by reference in this
prospectus from us without charge, excluding any exhibits to those documents
unless the exhibit is specifically incorporated by reference as an exhibit to
this prospectus, by requesting them in writing or by telephone from us at:
Secretary
Del Webb Corporation
6001 North 24th Street
Phoenix, Arizona 85016
(602) 808-8000
Our Internet address is http://www.delwebb.com.
14
<PAGE> 18
WE HAVE NOT AUTHORIZED ANYONE TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION
ABOUT US THAT IS DIFFERENT FROM, OR IN ADDITION TO, THAT CONTAINED IN THIS
PROSPECTUS OR IN ANY OF THE MATERIALS THAT WE HAVE INCORPORATED BY REFERENCE
INTO THIS PROSPECTUS. IF ANYONE GIVES YOU INFORMATION OF THIS SORT, YOU SHOULD
NOT RELY ON IT. IF YOU ARE IN A JURISDICTION WHERE OFFERS TO SELL, OR
SOLICITATIONS OF OFFERS TO PURCHASE, THE SECURITIES OFFERED BY THIS PROSPECTUS
ARE UNLAWFUL, OR IF YOU ARE A PERSON TO WHOM IT IS UNLAWFUL TO OFFER OR SELL
THESE DEL WEBB SECURITIES, THEN THE OFFER DOES NOT EXTEND TO YOU. THE
INFORMATION CONTAINED IN THIS PROSPECTUS IS GIVEN ONLY CORPORATION AS OF THE
DATE OF THIS PROSPECTUS.
[LOGO]
---------------
Debt Securities, Preferred
Stock, Common Stock,
Stock Purchase Warrants
---------------
---------------
PROSPECTUS
---------------
June 25, 1999
<PAGE> 19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*
The following are the estimated expenses of the issuance and
distribution of the securities being registered, all of which will be paid by
the Registrant.
<TABLE>
<S> <C>
Registration fee......................................................... $ 44,250**
Blue Sky fees and expenses............................................... 2,000
Exchange Listing Fees.................................................... 35,000
Printing expenses........................................................ 50,000
Legal fees and expenses.................................................. 50,000
Accounting fees and expenses............................................. 50,000
Trustee's fees and expenses (including counsel fees)..................... 7,000
Other.................................................................... 11,750
----------
Total............................................................... $ 250,000
</TABLE>
- ----------
* All amounts are estimated except Commission's registration fee.
** Does not include $29,500 previously paid in connection with the $100,000,000
of securities being carried forward from the Registrants' prior Registration
Statement on Form S-3 (SEC File No. 333-63671).
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the Delaware General Corporation Law and Sections 5.4
and 7.1 - 7.4 of the Company's Amended and Restated Certificate of Incorporation
each provide for indemnification by the Company of its officers, directors,
agents and employees under certain circumstances. In addition, the Company has
entered into indemnification agreements with each of its directors and executive
officers.
It is anticipated that in any Underwriting Agreements, the
underwriter(s) named therein will agree to indemnify the Company, its directors
and certain of its officers against certain civil liabilities, including civil
liabilities under the Securities Act of 1933, as amended (the "Securities Act").
The Registrant has a policy of directors' and officers' liability
insurance which insures directors and officers against the cost of defense,
settlement or payment of a judgment under certain circumstances.
ITEM 16. EXHIBITS
4.1 Form of Senior Debt Indenture (including form of Senior
Debenture/Note/Global Security)
4.2 Schedule of material details in which the form of Senior Subordinated
Debt Indenture (including the form of Senior Subordinated
Debenture/Note/Global Security) differs from the form of Senior Debt
Indenture (including the form of Senior Debenture/Note/Global
Security) and the form of Senior Subordinated Debt Indenture
(including form of Senior Subordinated Debenture/Note/Global Security)
4.3 Schedule as to material details in which the form of Subordinated Debt
Indenture (including the form of Subordinated Debenture/Note/ Global
Security) differs from the form of Senior Subordinated Debt Indenture
(including form of Senior Subordinated Debenture/Note/ Global
Security) and the form of Subordinated Debt Indenture (including form
of Subordinated Debenture/Note/Global Security)
4.4 Form of Warrant Agreement (including form of Warrant)
4.5 Form of Certificate of Designations of Del Webb Corporation Pursuant
to Section 151 of the Delaware General Corporation Law (the form of
Certificate of Designations for the Preferred Stock)
II-1
<PAGE> 20
4.6 Form of Depositary Agreement (including form of Depositary Receipt)
5 Opinion of Gibson, Dunn & Crutcher LLP as to the legality of the
securities to be issued
10 Form of Directors and Officers Indemnification Agreement (incorporated
by reference to Registrant's Annual Report on Form 10-K for its fiscal
year ended June 30, 1997)
12 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of KPMG LLP
23.2 Consent of Gibson, Dunn & Crutcher LLP (included as part of Exhibit 5)
24 Powers of Attorney (included at pages II-4 and II-5)
25 Statement of Eligibility of Trustee
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to section 15(d) of
the Exchange Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(5) That, for purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rules 424(b)(l) or
497(h) under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(6) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(7) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described in Item 15 (other than
the provisions relating to insurance), or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. If a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-2
<PAGE> 21
(8) The undersigned Registrant hereby undertakes to file an
application, if necessary, for the purpose of determining the eligibility of any
trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
II-3
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Phoenix, Arizona on June 25, 1999.
DEL WEBB CORPORATION
By: /s/ PHILIP J. DION
-------------------------
Philip J. Dion
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Philip J. Dion, LeRoy C. Hanneman, Jr., Donald V. Mickus, John A.
Spencer, David E. Rau and Robertson C. Jones, and each or any of them, as his
true and lawful attorney-in-fact and agent, with full power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign any or
all amendments or post-effective amendments to this Registration Statement and
to file the same, with all exhibits thereto, and other documents in connection
therewith with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents and each of them full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that each such attorney-in-fact and agent, or his
substitute may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ PHILIP J. DION Chairman of the Board and Chief Executive Officer June 25, 1999
------------------------------ (Principal Executive Officer)
Philip J. Dion
/s/ LEROY C. HANNEMAN, JR. Director, President and
------------------------------ Chief Operating Officer
LeRoy C. Hanneman, Jr. June 25, 1999
/s/ JOHN A. SPENCER Executive Vice President, Finance and
------------------------------ Administration, and Chief Financial Officer June 25, 1999
John A. Spencer (Principal Financial Officer)
/s/ DAVID E. RAU Vice President and Controller
------------------------------ (Principal Accounting Officer) June 25, 1999
David E. Rau
</TABLE>
II-4
<PAGE> 23
<TABLE>
<S> <C> <C>
/s/ D. KENT ANDERSON Director June 25, 1999
------------------------------
D. Kent Anderson
/s/ MICHAEL O. MAFFIE Director June 25, 1999
------------------------------
Michael O. Maffie
/s/ PETER A. NELSON Director June 25, 1999
------------------------------
Peter A. Nelson
/s/ J. RUSSELL NELSON Director June 25, 1999
------------------------------
J. Russell Nelson
/s/ MICHAEL E. ROSSI Director June 25, 1999
------------------------------
Michael E. Rossi
------------------------------ Director
Glenn W. Schaeffer
/s/ C. ANTHONY WAINWRIGHT Director June 25, 1999
------------------------------
C. Anthony Wainwright
/s/ SAM YELLEN Director June 25, 1999
------------------------------
Sam Yellen
</TABLE>
II-5
<PAGE> 24
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
--- -----------
4.1 Form of Senior Debt Indenture (including form of Senior
Debenture/Note/Global Security)
4.2 Schedule of material details in which the form of Senior
Subordinated Debt Indenture (including the form of Senior
Subordinated Debenture/Note/Global Security) differs from the
form of Senior Debt Indenture (including the form of Senior
Debenture/Note/Global Security) and the form of Senior
Subordinated Debt Indenture (including form of Senior
Subordinated Debenture/Note/Global Security)
4.3 Schedule as to material details in which the form of
Subordinated Debt Indenture (including the form of
Subordinated Debenture/Note/ Global Security) differs from the
form of Senior Subordinated Debt Indenture (including form of
Senior Subordinated Debenture/Note/ Global Security) and the
form of Subordinated Debt Indenture (including form of
Subordinated Debenture/Note/Global Security)
4.4 Form of Warrant Agreement (including form of Warrant)
4.5 Form of Certificate of Designations of Del Webb Corporation
Pursuant to Section 151 of the Delaware General Corporation
Law (the form of Certificate of Designations for the Preferred
Stock)
4.6 Form of Depositary Agreement (including form of Depositary
Receipt)
5 Opinion of Gibson, Dunn & Crutcher LLP as to the legality of
the Securities to be issued
12 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of KPMG LLP
23.2 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5)
24 Power of Attorney (included at pages II-4 and II-5)
25 Statement of Eligibility of Trustee
<PAGE> 1
EXHIBIT 4.1
------------------------------------------------------------------------
------------------------------------------------------------------------
DEL WEBB CORPORATION
AND
[BANK OF MONTREAL TRUST COMPANY]
AS TRUSTEE
$____________
___% [Convertible] Senior [Debentures] [Notes]*
INDENTURE
Dated as of _____, 199_
---------------------------------------------------------------------
---------------------------------------------------------------------
----------------
* Language in brackets indicates alternative language or provisions to be
supplied. As appropriate, disclosure will be made in the relevant
Prospectus Supplement as to which alternative has been chosen or
provisions added and a copy of the final Indenture will be filed as an
Exhibit to a Form 8-K, or other appropriate periodic report.
<PAGE> 2
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
----------- -----------------
<S> <C>
310(a)(1)......................................................... 7.10
(a)(2)......................................................... 7.10
(a)(3)......................................................... N.A.
(a)(4)......................................................... N.A.
(b)............................................................ 7.08; 7.10; 10.02
(c)............................................................ N.A.
311(a)............................................................ 7.11
(b)............................................................ 7.12
(c)............................................................ N.A.
312(a)............................................................ 2.05
(b)............................................................ 10.03
(c)............................................................ 10.03
313(a)............................................................ 7.06
(b)(1)......................................................... N.A.
(b)(2)......................................................... 7.06
(c)............................................................ 7.06; 10.02
(d)............................................................ 7.06
314(a)............................................................ 4.01; 10.02
(b)............................................................ N.A.
(c)(1)......................................................... 10.04
(c)(2)......................................................... 10.04
(c)(3)......................................................... N.A.
(d)............................................................ N.A.
(e)............................................................ 10.05
(f)............................................................ N.A.
315(a)............................................................ 7.01(b)
(b)............................................................ 7.05; 10.02
(c)............................................................ 7.01(a)
(d)............................................................ 7.01(c)
(e)............................................................ 6.11
316(a)(last sentence)............................................. 2.09
(a)(1)(A)...................................................... 6.05
(a)(1)(B)...................................................... 6.04
(a)(2)......................................................... N.A.
(b)............................................................ 6.07
317(a)(1)......................................................... 6.08
(a)(2)......................................................... 6.09
(b)............................................................ 2.04
318(a)............................................................ 10.01
</TABLE>
N.A. means not applicable.
- ---------------
*This Cross-Reference Table is not part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
ARTICLE 1
DEFINITIONS
<S> <C> <C>
Section 1.01. Definitions......................................................... 1
"Affiliate".................................................... 1
"Agent"........................................................ 1
"Board of Directors"........................................... 1
"capital stock"................................................ 1
"Change of Control"............................................ 1
"Company"...................................................... 2
"Consolidated Net Earnings".................................... 2
"Default"...................................................... 2
"Disqualified Stock"........................................... 3
"Equity Interests"............................................. 3
"Exchange Act"................................................. 3
"Holder" or "Securityholder"................................... 3
"Indenture".................................................... 3
"Material Subsidiary".......................................... 3
"Officers' Certificate"........................................ 3
"Opinion of Counsel"........................................... 3
"person"....................................................... 3
"principal".................................................... 3
"redemption date".............................................. 3
"redemption price"............................................. 3
"SEC".......................................................... 4
"Securities"................................................... 4
"subsidiary"................................................... 4
"TIA".......................................................... 4
"Trustee"...................................................... 4
"Trust Officer"................................................ 4
Section 1.02. Other Definitions................................................... 4
Section 1.03. Incorporation by Reference of Trust Indenture Act................... 5
Section 1.04. Rules of Construction............................................... 5
</TABLE>
i
<PAGE> 4
<TABLE>
<CAPTION>
Page
ARTICLE 2
THE SECURITIES
<S> <C> <C>
Section 2.01. Form and Dating.................................................. 6
Section 2.02. Execution and Authentication..................................... 6
Section 2.03 Registrar and Paying Agent....................................... 7
Section 2.04. Paying Agent to Hold Money in Trust.............................. 7
Section 2.05. Securityholder Lists............................................. 8
Section 2.06. Transfer and Exchange............................................ 8
Section 2.07. Replacement Securities........................................... 8
Section 2.08. Outstanding Securities........................................... 9
Section 2.09. When Treasury Securities Disregarded............................. 9
Section 2.10. Temporary Securities............................................. 9
Section 2.11. Cancellation..................................................... 10
Section 2.12. Defaulted Interest............................................... 10
Section 2.13. CUSIP Number..................................................... 10
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee............................................... 10
Section 3.02. Selection of Securities to be Redeemed........................... 11
Section 3.03. Notice of Redemption............................................. 11
Section 3.04. Effect of Notice of Redemption................................... 12
Section 3.05. Deposit of Redemption Price...................................... 12
Section 3.06. Securities Redeemed in Part...................................... 12
[Section 3.07. Mandatory Redemption............................................. 13]
ARTICLE 4
COVENANTS
Section 4.01. Payment of Securities............................................ 13
Section 4.02. SEC Reports...................................................... 13
Section 4.03. Compliance Certificate........................................... 14
Section 4.04. Maintenance of Office or Agency.................................. 15
Section 4.05. Restrictions on Dividends and Other Payments..................... 15
Section 4.06. Continued Existence.............................................. 17
Section 4.07. Taxes............................................................ 17
</TABLE>
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<TABLE>
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<S> <C> <C>
Section 4.08. Maintenance of Properties........................................... 17
Section 4.09. Insurance........................................................... 18
Section 4.10. Investment Company Act.............................................. 18
Section 4.11. Change of Control................................................... 18
ARTICLE 5
SUCCESSORS
Section 5.01. When the Company May Merge, etc..................................... 20
Section 5.02. Successor Corporation Substituted................................... 20
Section 5.03. Purchase Option on Change of Control................................ 21
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default................................................... 21
Section 6.02. Acceleration........................................................ 23
Section 6.03. Other Remedies...................................................... 23
Section 6.04. Waiver of Past Defaults............................................. 24
Section 6.05. Control by Majority................................................. 24
Section 6.06. Limitation on Suits................................................. 24
Section 6.07. Rights of Holders to Receive Payment
[and to Convert Securities]....................................... 25
Section 6.08. Collection Suit by Trustee.......................................... 25
Section 6.09. Trustee May File Proofs of Claim.................................... 25
Section 6.10. Priorities.......................................................... 26
Section 6.11. Undertaking for Costs............................................... 26
ARTICLE 7
THE TRUSTEE
Section 7.01. Duties of the Trustee............................................... 26
Section 7.02. Rights of the Trustee............................................... 28
Section 7.03. Individual Rights of the Trustee.................................... 28
Section 7.04. Trustee's Disclaimer................................................ 28
Section 7.05. Notice of Defaults.................................................. 29
Section 7.06. Reports by the Trustee to Holders................................... 29
Section 7.07. Compensation and Indemnity.......................................... 29
Section 7.08. Replacement of the Trustee.......................................... 30
</TABLE>
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<TABLE>
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<S> <C> <C>
Section 7.09. Successor Trustee by Merger, etc.................................... 31
Section 7.10. Eligibility; Disqualification....................................... 31
Section 7.11. Preferential Collection of Claims Against Company................... 32
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.01. Termination of Company's Obligations................................ 32
Section 8.02. Application of Trust Money.......................................... 35
Section 8.03. Repayment to Company................................................ 35
Section 8.04. Reinstatement....................................................... 35
ARTICLE 9
AMENDMENTS
Section 9.01. Without the Consent of Holders...................................... 36
Section 9.02. With the Consent of Holders......................................... 37
Section 9.03. Compliance with the Trust Indenture Act............................. 38
Section 9.04. Revocation and Effect of Consents................................... 38
Section 9.05. Notation on or Exchange of Securities............................... 38
Section 9.06. The Trustee Protected............................................... 39
ARTICLE 10
GENERAL PROVISIONS
Section 10.01. Trust Indenture Act Controls........................................ 39
Section 10.02. Notices............................................................. 39
Section 10.03. Communication by Holders with Other Holders......................... 40
Section 10.04. Certificate and Opinion as to Conditions Precedent.................. 40
Section 10.05. Statements Required in Certificate or Opinion....................... 40
Section 10.06. Rules by Trustee and Agents......................................... 41
Section 10.07. Legal Holidays; Business Days....................................... 41
Section 10.08. No Recourse Against Others.......................................... 41
Section 10.09. Counterparts........................................................ 41
Section 10.10. Other Provisions.................................................... 41
Section 10.11. Governing Law....................................................... 42
Section 10.12. No Adverse Interpretation of Other Agreements....................... 43
Section 10.13. Successors.......................................................... 43
Section 10.14. Severability........................................................ 43
Section 10.15. Table of Contents, Headings, Etc.................................... 43
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<TABLE>
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ARTICLE 11
OMITTED
[ARTICLE 12
CONVERSION
<S> <C> <C>
Section 12.01. Conversion Privilege................................................ 43
Section 12.02. Conversion Procedures............................................... 44
Section 12.03. Fractional Shares................................................... 45
Section 12.04. Taxes on Conversion................................................. 45
Section 12.05. Company to Provide Stock............................................ 45
Section 12.06. Adjustment for Change in Capital Stock.............................. 46
Section 12.07. Adjustment for Rights Issue......................................... 46
Section 12.08. Adjustment for Other Distributions.................................. 47
Section 12.09. Adjustment for [Preferred] [Common] Stock Issue..................... 48
Section 12.10. Adjustment for Convertible Securities Issue......................... 50
Section 12.10A. Special Provision Regarding Preferred Stock......................... 51
Section 12.11. Current Market Price................................................ 51
Section 12.12. Consideration Received.............................................. 52
Section 12.13 When Adjustment May Be Deferred..................................... 52
Section 12.14. When No Adjustment Required......................................... 52
Section 12.15. Notice of Adjustment................................................ 53
Section 12.16. Voluntary Reduction................................................. 53
Section 12.17. Notice of Certain Transactions...................................... 54
Section 12.18. Reorganization of Company........................................... 54
Section 12.19. Company Determination Final......................................... 55
Section 12.20. Trustee's Disclaimer................................................ 55
SIGNATURES .................................................................... 55
EXHIBIT A FORM OF SECURITY.................................................. A-1
</TABLE>
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This Indenture, dated as of ________, 199_, is between Del Webb Corporation,
a Delaware corporation (the "Company"), and [Bank of Montreal Trust Company]
(the "Trustee").
The Company has duly authorized the issuance of its ___% [Convertible]
Senior [Debentures] [Notes] (the "Securities") and to provide therefor the
Company has duly authorized the execution and delivery of this Indenture. Each
party agrees as follows for the benefit of the other party and for the equal and
ratable benefit of the Holders of the Securities.
ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (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, by agreement or otherwise.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee of the Board of Directors.
"capital stock" means any and all shares, interests, participations or other
equivalents (however designated) of corporate stock.
"Change of Control" means any of the following: (i) all or substantially all
of the Company's assets are sold as an entirety to any person or related group
of persons or the Company engages in any merger, consolidation, sale of capital
stock, sale of beneficial ownership interests or any other transactions with any
other person or related group of persons, with the effect that after such
transactions the shareholders of the Company immediately prior to such
transactions own, directly or indirectly, in the aggregate less than 50% of the
total voting power entitled to vote in the election (a) of directors of the
Company, if the Company is the surviving entity, or (b) of directors, managers
or trustees (1) of such other person, if the Company is not the surviving
entity, or (2) of such other person that
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<PAGE> 9
purchases all or substantially all of the Company's assets; (ii) any person or
related group of persons acquires more than 50% of the total voting power
entitled to vote for directors of the Company; or (iii) any person or related
group of persons acquires more than 50% of the total voting power entitled to
vote for directors, managers or trustees (a) of such other person surviving the
transaction or (b) of such other person that purchases all or substantially all
of the Company's assets.
"Company" means the party named as such above until a successor replaces it
in accordance with Article 5 and thereafter means the successor.
"Consolidated Net Earnings" with respect to any person means, for any
period, the aggregate of the Net Earnings of such person and its subsidiaries
for such period, on a consolidated basis, determined in accordance with
generally accepted accounting principles consistently applied; provided that the
Net Earnings of any person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition shall be excluded. "Net
Earnings" of any person for any period shall mean the net earnings (loss) of
such person for such period, determined in accordance with generally accepted
accounting principles consistently applied, (i) excluding (a) extraordinary
items recognized in such period, (b) any gain (but including any loss except as
reduced to the extent aggregate gains exceed aggregate losses, with gains in
excess of losses for one period being carried forward to subsequent periods and
back to prior periods for this purpose) realized upon the sale or other
disposition (including, without limitation, dispositions pursuant to leaseback
transactions) of any real property or equipment of such person which is not sold
or otherwise disposed of in the ordinary course of business and (c) any gain
(but including any loss except as reduced to the extent aggregate gains exceed
aggregate losses, with gains in excess of losses for one period being carried
forward to subsequent periods and back to prior periods for this purpose)
realized upon the sale or other disposition of any capital stock of such person
or a subsidiary of such person except when the sale of capital stock is in
substance the sale of the assets of the person whose capital stock is being
sold, provided that, with respect to (b) and (c) above, gains from sales of
developed or undeveloped real property (including without limitation developed
residential lots) from the Company's community, conventional housing and land
development businesses will be deemed ordinary course and (ii) excluding any
write-up in the carrying value of any asset made after ______________, provided
that the application of the equity method of accounting and the translation into
United States dollars of assets or liabilities in foreign currencies in
accordance with generally accepted accounting principles shall not be deemed to
involve any such write-up.
"Default" means any event which is, or after notice or passage of time would
be, an Event of Default.
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<PAGE> 10
"Disqualified Stock" means any capital stock which, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
maturity date of the Securities.
"Equity Interests" means capital stock or warrants, options or other rights
to acquire capital stock (but excluding any debt security which is convertible
into, or exchangeable for, capital stock).
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or any
successor statute.
"Holder" or "Securityholder" means a person in whose name a Security is
registered in the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Material Subsidiary" means (i) Del Webb Communities, Inc., (ii) Del
Webb California Corp. and (iii) any other subsidiary of the Company, if
any, named [in the final Indenture] [or] [in a supplemental indenture.]
"Officers' Certificate" means a certificate signed by two Officers, one of
whom must be the Chairman of the Board, the President, the Treasurer or an
Executive Vice President, Senior Vice President or other Vice President of the
Company.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"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 debt security, including the Securities, means the
principal of the security plus the premium, if any, on the security.
"redemption date" when used with respect to any of the Securities to be
redeemed, means the date fixed by the Company for such redemption pursuant to
this Indenture and the Securities.
"redemption price" when used with respect to any of the Securities to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and the Securities.
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<PAGE> 11
"SEC" means the Securities and Exchange Commission.
"Securities" means the Securities described above issued under this
Indenture.
"subsidiary" of any specified person means (i) a corporation a majority of
whose capital stock with voting power, under ordinary circumstances, to elect
directors is at the time, directly or indirectly, owned by such person or by
such person and a subsidiary or subsidiaries of such person or (ii) any other
person (other than a corporation) in which such person or such person and a
subsidiary or subsidiaries of such person, directly or indirectly, at the date
of determination thereof has at least majority ownership interest or over which
it exercises control.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77-bbbb) as in effect on the date of execution of this Indenture.
"Trustee" means the party named as such above until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter
means the successor.
"Trust Officer" means [the Chairman of the Board, the President or] any
[other] officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
SECTION 1.02. OTHER DEFINITIONS.
Defined
in
Term Section
---- -------
"Bankruptcy Law"...................................... 6.01
"Business Day"........................................ 10.07
["Common Stock"........................................ 12.01]
["Conversion Agent..................................... 2.03]
"Custodian"........................................... 6.01
"Event of Default".................................... 6.01
"Indebtedness"........................................ 11.02
"Legal Holiday"....................................... 10.07
"Officer"............................................. 10.10
"Paying Agent"........................................ 2.03
["Preferred Stock"..................................... 12.01]
["Quoted Price"........................................ 12.03]
"Registrar"........................................... 2.03
"Representative"...................................... 11.02
"Restricted Payments"................................. 4.05
"United States Government Obligations"................ 8.01
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<PAGE> 12
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder or Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee;
and
"obligor" on the Securities means the Company or any other
obligor on the Securities.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA have
the meanings so assigned to them.
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 generally accepted accounting
principles as in effect at the date hereof;
(3) references to "generally accepted accounting principles"
shall mean generally accepted accounting principles as in effect at the
date hereof;
(4) "or" is not exclusive;
(5) words in the singular include the plural, and in the plural
include the singular; and
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(6) the male, female and neuter genders include one another.
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING.
The Securities and the Trustee's certificate of authentication relating
thereto shall be substantially in the form set forth in Exhibit A, which is part
of this Indenture, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, provided
that the Securities may be Global Securities and as such may be issued in either
registered or bearer form. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Company shall
approve the forms of the Securities and any notation, legend or endorsement on
them. Each Security shall be dated the date of its authentication.
The terms and provisions contained in the Securities shall constitute, and
are hereby expressly made, a part of this Indenture and, to the extent
applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds that office
at the time the Security is authenticated, the Security shall nevertheless be
valid.
A Security shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
Upon a written order of the Company signed by an Officer of the Company, the
Trustee shall authenticate Securities for original issue up to $ in
aggregate principal amount. The aggregate principal amount of Securities
outstanding at any time may not exceed that amount except as provided in Section
2.07.
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<PAGE> 14
The Securities shall be issuable only in registered form without coupons and
only in denominations of $1,000 or any integral multiple thereof.
The Trustee may appoint an authenticating agent acceptable to the Company 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 right as an Agent to deal with the Company or
an Affiliate.
SECTION 2.03 REGISTRAR AND PAYING AGENT.
The Company shall maintain or cause to be maintained in the Borough of
Manhattan, City of New York (the "New York Office"), State of New York, and in
such other locations as it shall determine: (i) an office or agency where
securities may be presented for registration of transfer or for exchange
("Registrar"); [and] (ii) an office or agency where Securities may be presented
for payment ("Paying Agent")[; and (iii) an office or agency where Securities
may be presented for conversion ("Conversion Agent")]. The Registrar shall keep
a register of the Securities and of their transfer and exchange. The Company may
appoint one or more co-registrars[, and] one or more additional paying agents
[and one or more additional conversion agents]. The term "Paying Agent" includes
any additional paying agent[; and the term "Conversion Agent" includes any
additional conversion agent]. The Company may change any Paying Agent,
Registrar[, or] co-registrar [or Conversion Agent] without prior notice. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture and shall enter into an appropriate agency agreement
with any Registrar, Paying Agent[, or] co-registrar [or Conversion Agent] not a
party to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company or any of its subsidiaries may
act as Paying Agent, Registrar[, or] co-registrar [or Conversion Agent]. If the
Company fails to appoint or maintain another entity as Registrar[, or] Paying
Agent [, or Conversion Agent], the Trustee shall act as such, and the Trustee
shall initially act as such. The Trustee shall cause to be maintained the New
York Office as long as it acts as Registrar[, or] Paying Agent [or Conversion
Agent].
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent (other than the Trustee, who
hereby so agrees), to agree in writing that the Paying Agent will hold in trust
for the benefit of Securityholders or the Trustee all money held by the Paying
Agent for the payment of principal or interest on the Securities, and will
notify the Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require
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<PAGE> 15
a Paying Agent to pay all money held by it to the Trustee. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Company or a
subsidiary) shall have no further liability for the money. If the Company or a
subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Securityholders all money held by it as Paying
Agent.
SECTION 2.05. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably practicable
the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee on or before each 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
Securityholders.
SECTION 2.06. TRANSFER AND EXCHANGE.
Where Securities are presented to the Registrar or a co-registrar with a
request to register a transfer or to exchange them for an equal principal amount
of Securities of other denominations, the Registrar shall register the transfer
or make the exchange if its requirements for such transactions are met. To
permit registrations of transfers and exchanges, the Company shall issue and the
Trustee shall authenticate Securities at the Registrar's request. No service
charge shall be made for any registration of transfer or exchange (except as
otherwise expressly permitted herein), but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to Sections 2.10, 3.06[, or]
9.05 [or 12.02]).
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities during a period beginning at the opening of business 15 days
before the day of any selection of Securities for redemption under Section 3.02
and ending at the close of business on the day of selection, or (ii) to register
the transfer or exchange of any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
SECTION 2.07. REPLACEMENT SECURITIES.
If the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security if the Trustee's requirements are
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<PAGE> 16
met. If required by the Trustee or the Company as a condition of receiving a
replacement Security, the Holder must provide an indemnity bond sufficient, in
the judgment of both the Company and the Trustee, to fully protect the Company,
the Trustee, any Agent and any authenticating agent from any loss which any of
them may suffer if the Security is replaced. The Company may charge for its
expenses in replacing any Security.
Every replacement Security is an additional obligation of the Company.
SECTION 2.08. OUTSTANDING SECURITIES.
The Securities outstanding at any time are all the Securities properly
authenticated by the Trustee except for those canceled by the Trustee, those
delivered to it for cancellation, and those described in this Section as not
outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they 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 of the Company holds the Security.
SECTION 2.09. WHEN TREASURY SECURITIES DISREGARDED.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or an Affiliate of the Company shall be considered as though they
are not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Securities which the Trustee knows are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities. Temporary Securities
shall be substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities.
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<PAGE> 17
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Securities surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall dispose of canceled Securities as the Company directs, provided that the
Trustee shall not be required to destroy such canceled securities. The Company
may not issue new Securities to replace Securities that it has paid or that have
been delivered to the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company fails to make a payment of interest on the Securities, it
shall pay such defaulted interest plus any interest payable on the defaulted
interest in any lawful manner. It may pay such defaulted interest, plus any such
interest payable on it, to the persons who are Securityholders on a subsequent
special record date. The Company shall fix any such record date and payment
date. At least 15 days before any such record date, the Company shall mail to
Securityholders a notice that states the record date, payment date and amount of
such interest to be paid.
SECTION 2.13. CUSIP NUMBER.
The Company in issuing the Securities may use a "CUSIP" number, and if so,
such CUSIP number shall be included in notices of redemption or exchange as a
convenience to Holders; provided, however, 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. The Company will
promptly notify the Trustee of any change in the CUSIP number.
ARTICLE 3
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities pursuant to the optional
redemption provisions of paragraph 5 of the Securities, it shall notify the
Trustee of the redemption date and the principal amount of Securities to be
redeemed.
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<PAGE> 18
The Company shall give each notice provided for in this Section at least 60
days before the redemption date (unless a shorter notice period shall be
satisfactory to the Trustee).
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the Trustee shall select
the Securities to be redeemed pro rata or by lot, if lawful, or if required by
another method that complies with the requirements of any exchange on which the
Securities are listed and that the Trustee considers fair and appropriate. The
Trustee shall make the selection not more than 75 days and not less than 45 days
before the redemption date from Securities outstanding not previously called for
redemption. The Trustee may select for redemption portions of the principal of
Securities that have denominations larger than $1,000. Securities and portions
of them it selects shall be in amounts of $1,000 or integral multiples of
$1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company promptly of the Securities or portions of
Securities to be called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
Except as provided in Section 4.11, at least 30 days but not more than 60
days before a redemption date, the Company shall mail a notice of redemption to
each Holder whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued;
(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;
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(6) the paragraph of the Securities pursuant to which the
Securities are being redeemed;
(7) the aggregate principal amount of Securities that are being
redeemed;
(8) the CUSIP number of the Securities (provided that the
disclaimer permitted by Section 2.13 may be made); [and]
(9) the name and address of the Paying Agent [and Conversion
Agent] [.][;]
[(10) that Securities called for redemption may be converted at
any time before the close of business on the redemption date;
(11) that Holders who want to convert Securities must satisfy the
requirements in paragraph 17 of the Securities; and
(12) the current conversion price.]
At the Company's request, the Trustee shall give notice of redemption in the
Company's name and at its expense.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities called for redemption become
due and payable on the redemption date at the price set forth in the Security.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before the redemption date, the Company shall deposit with the Trustee
or with the Paying Agent money in immediately available funds sufficient to pay
the redemption price of and accrued interest on all Securities to be redeemed on
that date. The Trustee or the Paying Agent shall return to the Company any money
not required for that purpose.
SECTION 3.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Company a new Security equal in principal amount to the unredeemed portion of
the Security surrendered.
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[SECTION 3.07. MANDATORY REDEMPTION.
To the extent lawful, the Company shall redeem ___ percent of the [initial]
principal amount of the Securities [outstanding] as set forth in paragraph 5B of
the Securities, which amount shall be rounded to the next highest integral
multiple of $1,000, annually on each of the dates, upon the terms and subject to
the conditions set forth in paragraph 6 of the Securities.]
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the Securities on the
dates and in the manner provided in the Securities. Principal and interest shall
be considered paid on the date 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 all principal and interest then due.
To the extent lawful, the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on (i)
overdue principal, at the rate borne by the Securities, compounded semiannually;
and (ii) overdue installments of interest (without regard to any applicable
grace period) at the same rate, compounded semiannually.
SECTION 4.02. SEC REPORTS.
The Company shall deliver to the Trustee, within 15 days after it files them
with the SEC, 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 SEC may
by rules and regulations prescribe) which the Company is required to file with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also
shall comply with the other provisions of TIA Section 314(a). The Company shall
timely comply with its reporting and filing obligations under the applicable
federal securities law.
If the Company is at any time not required to file annual or quarterly
reports pursuant to Section 13 or 15(d) of the Exchange Act, the Company will
file with the Trustee, within 15 days after the last date on which it would have
been required to make such a filing with the SEC, and will upon request of a
Holder mail to that Holder (as soon as practical after receipt of such request)
at his or her address as it appears on the register of Securities kept by the
Registrar, audited annual financial statements prepared in
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accordance with generally accepted accounting principles and unaudited quarterly
financial statements. Such financial statements shall be accompanied by a
Management's Discussion and Analysis of Financial Condition and Results of
Operations of the Company for the period reported upon in substantially the form
required under the rules and regulations of the SEC, or any successor form of
similar disclosure then required under the rules and regulations of the SEC.
SECTION 4.03. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company, an Officers' Certificate, one of the
signatories to which shall be the principal executive officer, principal
financial officer or principal accounting officer of the Company, stating that a
review of the activities of the Company and its subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has fully performed its
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms and conditions hereof (or, if a Default or Events of Default shall
have occurred, describing all such Defaults or Events of Default of which he or
she may have knowledge) and that to the best of his or her knowledge no event
has occurred and remains in existence by reason of which payments on account of
the principal of or interest, if any, on the Securities are prohibited.
The Company will, so long as any of the Securities are outstanding, deliver
to the Trustee, forthwith upon becoming aware of (i) any Default, Event of
Default or default in the performance of any term or condition in this Indenture
or (ii) any event of default under any other mortgage, indenture or instrument
as that term is used in Section 6.01(4), an Officers' Certificate specifying
such Default, Event of Default or default.
So long as not contrary to the then current recommendations of the American
Institute of Certified Public Accountants, at the time the Officers' Certificate
described in the second preceding paragraph is filed, the Company also will file
with the Trustee a letter or statement of the independent accountants who shall
have certified the financial statements of the Company for its preceding fiscal
year in connection with the annual report of the Company to its stockholders for
such year to the effect that, in making the examination necessary for
certification of such financial statements, nothing came to their attention that
would lead them to believe that the Company has violated any of the terms or
conditions contained in this Indenture, which Default remains uncured at the
date of such letter or
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statement or, if they shall have obtained knowledge of any such uncured Default,
specifying in such letter or statement such Default or Defaults and the nature
thereof, it being understood that such accountants shall not be liable directly
or indirectly for failure to obtain knowledge of any such Default or Defaults
and that their examination was not directed primarily toward obtaining knowledge
of such noncompliance.
SECTION 4.04. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain or cause to be maintained in the City of New York
an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency not maintained by the Trustee. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 10.10.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designation; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain or cause to be maintained an office or
agency in the City of New York for such purpose.
SECTION 4.05. RESTRICTIONS ON DIVIDENDS AND OTHER PAYMENTS.
The Company shall not, directly or indirectly:
(1) declare or pay any dividend on, or make any distribution to
the holders (as such) of, any shares of its capital stock (other than
dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Company (other than any such Equity Interests
owned by any subsidiary); or
(3) permit any subsidiary to purchase, redeem or otherwise retire
for value any Equity Interests of the Company (other than any such
Equity Interests owned by any subsidiary)
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(such dividends, distributions, purchases, redemptions or other
acquisitions or retirements referred to in clauses (1), (2) or (3) being
collectively referred to as "Restricted Payments"), if at the time of
such Restricted Payment:
(i) a Default or an Event of Default shall have occurred
and be continuing, or would occur as a consequence thereof, or
(ii) if, upon giving effect to such Restricted Payment,
the aggregate amount expended (determined as set forth below) for
all such Restricted Payments subsequent to the date hereof, shall
exceed the sum of:
(a) a percentage of the aggregate Consolidated Net
Earnings of the Company (or, in the case such aggregate
shall be a loss, 100% of such loss) accrued during fiscal
quarters ending subsequent to a specified date, which
percentage and date will be set forth in a supplemental
indenture;
(b) the aggregate net proceeds, including cash, the
fair market value of property other than cash (as
determined by the Board of Directors as evidenced by a
Board resolution) and the amount of any Indebtedness
(including principal, premium and interest), received by
the Company from or in exchange for the issue or sale
(other than to a subsidiary), subsequent to the date
hereof, of capital stock of the Company (other than
Disqualified Stock), other than in connection with the
exchange of the Securities;
(c) the amount expended for the purchase,
redemption or other acquisition or retirement for value of
any preferred stock of the Company; and
(d) [$_________] [or] [the amount set forth in a
supplemental indenture].
For purposes of any calculation pursuant to the preceding sentence which is
required to be made within 60 days after the declaration of a dividend by the
Company, such dividend shall be deemed to be paid at the date of declaration,
and the subsequent payment of such dividend during such 60-day period shall not
be treated as an additional Restricted Payment. For purposes of determining
under clause (ii) above the amount expended for
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Restricted Payments, cash distributed shall be valued at the face amount thereof
and property other than cash shall be valued at its fair market value as
determined by the Board of Directors as evidenced by a Board resolution.
Notwithstanding the foregoing, the provisions of this Section 4.05 will not
prevent: (i) the purchase of Securities by the Company; (ii) the payment of any
dividend within 60 days after the date of declaration when the payment complied
with the foregoing provisions on the date of declaration; (iii) the purchase,
redemption or any acquisition or retirement for value of the Preferred Stock;
(iv) the retirement of any shares of the Company's capital stock by exchange
for, or out of the proceeds of the substantially concurrent sale (other than to
a subsidiary) of, other shares of its capital stock (other than any Disqualified
Stock), and neither such retirement nor the proceeds of any such sale or
exchange, to the extent used for such retirement, shall be included in any
computation made under this Section 4.05; and (v) the purchase at a price of not
more than $.05 per right of any rights issued or issuable pursuant to any future
rights plan of the Company.
SECTION 4.06. CONTINUED EXISTENCE.
Subject to Article 5, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence as a
corporation and will refrain from taking any action that would cause its
existence as a corporation to cease, including without limitation any action
that would result in its liquidation, winding up or dissolution.
SECTION 4.07. TAXES.
The Company shall, and shall cause each of its Material Subsidiaries to, pay
prior to delinquency all taxes, assessments and governmental levies, except as
contested in good faith and by appropriate proceedings or where the failure to
do so would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
SECTION 4.08. MAINTENANCE OF PROPERTIES.
The Company shall, and shall cause each of its subsidiaries to, take
reasonable action to maintain in appropriate condition each of its principal
properties which in the judgment of management is essential to the business
operations of the Company and its subsidiaries, taken as a whole, and the loss
of which would have a material adverse effect on the financial condition of the
Company and its subsidiaries, taken as a whole. Nothing contained in this
Section 4.08 shall prevent or restrict the sale, abandonment or other
disposition of any property which management shall deem advisable.
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SECTION 4.09. INSURANCE.
The Company shall, and shall cause each of its subsidiaries to, take
reasonable action to maintain insurance, with financially sound and reputable
insurers, to the extent and against such hazards as may be deemed appropriate by
management (giving effect to self-insurance), on each of its principal
properties the loss of which, in the judgment of management, would have a
material adverse effect on the financial condition of the Company and its
subsidiaries, taken as a whole.
SECTION 4.10. INVESTMENT COMPANY ACT.
The Company shall not become an investment company subject to registration
under the Investment Company Act of 1940, as amended.
SECTION 4.11. CHANGE OF CONTROL.
Following the occurrence of any Change of Control, the Company shall offer
(a "Change of Control Offer") to purchase all outstanding Securities at a
purchase price equal to [101%] of the aggregate principal amount of the
Securities, plus accrued and unpaid interest to the date of purchase. The Change
of Control Offer shall be deemed to have commenced upon mailing of the notice
described in the next succeeding paragraph and shall terminate 20 Business Days
after its commencement, unless a longer offering period is required by law.
Promptly after the termination of the Change of Control Offer (the "Change of
Control Payment Date"), the Company shall purchase and mail or deliver payment
for all Securities tendered in response to the Change of Control Offer. If the
Change of Control Payment Date is on or after an interest payment record date
and on or before the related interest payment date, any accrued interest will be
paid to the person in whose name a Security is registered at the close of
business on such record date, and no additional interest will be payable to
Holders who tender Securities pursuant to the Change of Control Offer.
Within 30 days after any Change of Control, the Company (with notice to the
Trustee), or the Trustee upon reasonable notice and at the Company's request
(and at the expense of the Company), will mail or cause to be mailed to all
Holders on the date of the Change of Control a notice of the occurrence of such
Change of Control and of the Holders' rights arising as a result thereof. Such
notice will contain all instructions and materials necessary to enable Holders
to tender their Securities to the Company. Such notice, which shall govern the
terms of the Change of Control Offer, shall state:
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(1) that the Change of Control Offer is being made pursuant to
this Section 4.11 and the length of time the Change of Control Offer
will remain open;
(2) the purchase price and the Change of Control Payment Date;
(3) that any Security not tendered will continue to accrue
interest;
(4) that any Security accepted for payment pursuant to the Change
of Control Offer shall cease to accrue interest on the Change of Control
Payment Date;
(5) that any Security accepted for payment pursuant to any Change
of Control Offer will be required to surrender the Security, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Security completed, to the Company, a depositary, if appointed by the
Company, or a Paying Agent at the address specified in the notice prior
to termination of the Change of Control Offer;
(6) that Holders will be entitled to withdraw their election if
the Company, depositary or Paying Agent, as the case may be, receives,
not later than the expiration of the Change of Control Offer, or such
longer period as may be required by law, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Security the Holder delivered for purchase and a statement that such
Holder is withdrawing his or her election to have the Security
purchased; and
(7) that Holders whose Securities are purchased only in part will
be issued Securities equal in principal amount to the unpurchased
portion of the Securities surrendered.
On or before a Change of Control Payment Date, the Company shall, to the
extent lawful, (i) if the Company appoints a depositary or Paying Agent, deposit
with such depositary or Paying Agent money sufficient to pay the purchase price
of all Securities tendered, (ii) deliver or cause the depositary or Paying Agent
to deliver to the Trustee Securities so tendered and (iii) deliver an Officers'
Certificate identifying the Securities accepted for payment by the Company in
accordance with the terms of this Section 4.11. The depositary, the Paying Agent
or the Company, as the case may be, shall promptly mail or deliver to each
tendering Holder an amount equal to the purchase price of the Securities
tendered by such Holder and accepted by the Company for purchase. The Company
will publicly announce the
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results of the Change of Control Offer on the Change of Control Payment Date.
Any Change of Control Offer will be conducted in compliance with applicable
tender offer rules, including Section 14(e) of the Exchange Act and Rule 14e-1
thereunder.*
ARTICLE 5
SUCCESSORS
SECTION 5.01. WHEN THE COMPANY MAY MERGE, ETC.
The Company shall not consolidate or merge with or into, or sell, lease,
convey or otherwise dispose of all or substantially all of its assets to, any
person unless:
(1) the corporation formed by or surviving any such consolidation
or merger (if other than the Company), or to which such sale, lease,
conveyance or other disposition shall have been made, is a corporation
organized and existing under the laws of the United States, any state
thereof or the District of Columbia;
(2) the corporation formed by or surviving any such consolidation
or merger (if other than the Company), or to which such sale, lease,
conveyance or other disposition shall have been made, assumes by
supplemental indenture all the obligations of the Company under the
Securities and this Indenture; and
(3) immediately after the transaction no Default or Event of
Default exists.
The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in
- --------
* Additional substantive covenants may be added.
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accordance with Section 5.01, the successor entity formed by such consolidation
or into or with which the Company is merged or to which such sale, lease,
conveyance or other disposition 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 entity had been named as the Company
herein; provided, however, that the predecessor Company in the case of a sale,
lease, conveyance or other disposition shall not be released from the obligation
to pay the principal of and interest on the Securities.
SECTION 5.03. PURCHASE OPTION ON CHANGE OF CONTROL.
This Article 5 does not affect the obligations of the Company (including
without limitation any successor to the Company) under this Indenture.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" with respect to any Securities occurs if:
(1) the Company defaults in the payment of interest on any
Security 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 when the same becomes due and payable
at maturity, upon redemption or otherwise;
(3) the Company fails to comply with any of its other agreements
or covenants in, or provisions of, the Securities or this Indenture and
the Default continues for the period and after the notice specified
below;
(4) an event of default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company
or any Material Subsidiary (or the payment of which is guaranteed by the
Company or a Material Subsidiary), whether such Indebtedness or
guarantee now exists or shall be created hereafter, other than
Indebtedness which is or will be non-recourse to the Company or a
Material Subsidiary, if (a) either (i) such event of default results
from the
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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 expressed maturity 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 at maturity or
the maturity of which has been so accelerated, aggregates [$_______]
[the amount set forth in a supplemental indenture] or more; provided,
however, that if such event of default shall be remedied, cured or
waived, then the Event of Default hereunder by reason of such event of
default shall be deemed likewise to have been remedied, cured or waived
without further action by the Trustee or any of the Securityholders; or
(5) a final judgment or final judgments for the payment of money
are entered by a court or courts of competent jurisdiction against the
Company or any Material Subsidiary which remains undischarged for a
period (during which execution shall not be effectively stayed) of 60
days, provided that the aggregate of all such judgments exceeds
[$__________] [the amount set forth in a supplemental indenture];
(6) the Company or any Material Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against
it in an involuntary case,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) generally is unable to pay its debts as the same
become due;
(7) a court of competent jurisdiction enters a judgment, order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any Material
Subsidiary in an involuntary case,
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(B) appoints a Custodian of the Company or any Material
Subsidiary or for all or substantially all of their respective
properties, or
(C) orders the liquidation of the Company or any Material
Subsidiary,
and the order or decree remains unstayed and in effect for 60
days.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
A Default under clause (3) (other than Defaults under Section 4.05, 4.06[,
or] 5.01 [or, with respect to the right to convert Securities, Article XII],
which Defaults shall be Events of Default with the notice but without the
passage of time specified in this paragraph), (4) or (5) is not an Event of
Default until the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Securities notify the Company of the Default and the
Company does not cure the Default within 60 days after receipt of the notice.
The notice must specify the Default, demand that it be remedied and state that
the notice is a "Notice of Default."
SECTION 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default specified in clauses
(6) and (7) of Section 6.01) occurs and is continuing, the Trustee by notice to
the Company, or the Holders of at least 25% in principal amount of the then
outstanding Securities by notice to the Company and the Trustee, may declare the
unpaid principal of and accrued interest on all the Securities to be due and
payable. Upon such declaration the principal and interest shall be due and
payable immediately. If an Event of Default specified in clause (6) or (7) of
Section 6.01 occurs, such an amount shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder. The Holders of a majority in principal amount of the then
outstanding Securities by notice to the Trustee may rescind an acceleration and
its consequences, except nonpayment of principal or interest on the Securities,
if the rescission would not conflict with any judgment or decree.
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
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payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the
Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the then outstanding
Securities by notice to the Trustee may waive an existing Default or Event of
Default and its consequences except a continuing Default or Event of Default in
the payment of the principal of or interest on any Security. When a Default is
waived, it is cured and stops continuing.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the then outstanding
Securities may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, is unduly prejudicial to the rights of
other Securityholders or would involve the Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Securityholder may not pursue any remedy with respect to this Indenture or
the Securities unless:
(1) the Holder gives to the Trustee notice of a continuing Event
of Default;
(2) the Holders of at least 25% in principal amount of the then
outstanding Securities make a 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 expense;
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(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Securities do not give the
Trustee a direction inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT [AND TO CONVERT
SECURITIES].
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal and interest on the
Security, on or after the respective due dates expressed in the Security[, to
convert the Security as and to the extent permitted by this Indenture and the
terms of the Security] or to bring suit for the enforcement of any such payment
[or of the right to convert the Security] on or after such respective dates,
shall not be impaired or affected without the consent of the Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(1) or (2) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount of principal and
interest remaining unpaid on the Securities and interest on overdue principal
and interest and such further amount as shall be sufficient to cover the costs
and, to the extent lawful, expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.09. 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 and the
Securityholders allowed in any judicial proceedings relative to the Company, its
creditors or its property. Nothing contained herein shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
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SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall pay out
the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably,
without preference or priority of any kind, according
to the amounts due and payable on the Securities for
principal and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders.
SECTION 6.11. 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 a
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 attorneys 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 does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07
or a suit by Holders of more than 10% in principal amount of the then
outstanding Securities.
ARTICLE 7
THE TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture and
covenants and agrees to perform the same, as herein expressed.
SECTION 7.01. DUTIES OF THE TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
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(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
(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. However, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee 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:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section;
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(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.
(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.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(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.
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SECTION 7.02. RIGHTS OF THE TRUSTEE.
(a) The Trustee may rely on 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 such a document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate, an Opinion of Counsel or both. 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.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) 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.
(e) The Trustee may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF THE TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or an Affiliate
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. However, the Trustee 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, it shall not be accountable for the Company's use
of the proceeds from the Securities and it shall not be responsible for any
statement in the Indenture or any statement in the Securities other than its
authentication.
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SECTION 7.05. NOTICE OF DEFAULTS.
If a Default occurs and is continuing and if it is known to the Trustee, the
Trustee shall mail to each Securityholder a notice of the Default within 90 days
after it occurs. Except in the case of a Default in payment 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 Securityholders.
SECTION 7.06. REPORTS BY THE TRUSTEE TO HOLDERS.
Within 60 days after the reporting date stated in Section 10.10, the Trustee
shall mail to Securityholders a brief report dated as of such reporting date
that complies with TIA Section 313(a), if such report is required by TIA Section
313(a). The Trustee also shall comply with TIA Section 313(b)(2). The Trustee
shall also transmit by mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to Securityholders shall be
filed with the SEC and each stock exchange on which the Securities are listed.
The Company shall promptly notify the Trustee when the Securities are listed on
any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such compensation as
shall be agreed in writing between the Company and the Trustee for its services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses incurred by it.
Such expenses may include the reasonable compensation and out-of-pocket expenses
of the Trustee's agents and counsel.
The Company shall indemnify each of the Trustee and any successor Trustee
against any loss, damage, claims, liability or out-of-pocket expenses, including
taxes (other than taxes based on the income, revenues or receipts of the
Trustee) incurred by it in connection with the acceptance (with respect to legal
fees and other out-of-pocket expenses of the Trustee in connection with the
acceptance of the trust or trusts hereunder, to the extent provided in the
writing provided for in this Section 7.07) or administration of the trust or
trusts hereunder, except as set forth in the next paragraph. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity. The
Company shall defend the claim with counsel, who may be outside counsel to the
Company but shall in all events be reasonably satisfactory to the Trustee, and
the Trustee shall cooperate in the defense. In addition, if the Company does not
so defend the Trustee or
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if at any time the counsel so selected is ethically prohibited from representing
the Trustee (whether because of a conflict of interest or the provisions of the
TIA), then the Trustee may retain one separate counsel and the Company shall pay
the reasonable fees and expenses of such separate counsel. The indemnification
herein extends to any settlement, provided that the Company will not be liable
for any settlement made without its consent, provided further that such consent
will not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through negligence or bad faith.
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, except that held in trust to pay principal and
interest on Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6) or (7) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section 7.07 shall survive the termination of this
Indenture.
SECTION 7.08. REPLACEMENT OF THE 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.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the then outstanding Securities may remove the
Trustee by so notifying the removed Trustee and the Company and may appoint a
successor Trustee with the Company's consent. The Company may remove the Trustee
if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee or
its property; or
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(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the then outstanding Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the then outstanding Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to
the retiring Trustee and to the Company. Thereupon the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Securityholders. The
removed or retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in Section
7.07. Notwithstanding the replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee with respect to expenses and liabilities
incurred by it prior to such replacement.
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 business to, another corporation,
the resulting, surviving or transferee 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 Section 310(a)(1). The Trustee shall always have a combined capital and
surplus as stated in Section 10.10. The Trustee is subject to TIA Section
310(b), including the optional provision permitted by the second sentence of TIA
Section 310(b)(9).
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SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship set forth in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS.
(a) This Indenture shall cease to be of further effect (except that the
Company's obligations under Section 7.07 and 8.03 shall survive) when all
outstanding Securities theretofore authenticated and issued have been delivered
(other than destroyed, lost or stolen Securities that have been replaced or
paid) to the Trustee for cancellation and the Company has paid all sums payable
hereunder. In addition, the Company may elect to have either paragraph (b) or
paragraph (c) below be applied to the outstanding Securities upon compliance
with the conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option applicable
to this paragraph (b), the Company shall be deemed to have been released and
discharged from its obligations with respect to the outstanding Securities on
the date the conditions set forth below are satisfied ("legal defeasance"). For
this purpose, legal defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the outstanding
Securities, which shall thereafter be deemed to be "outstanding" only for the
purposes of the Sections of and matters under this Indenture referred to in (i)
and (ii) below, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following, which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of
outstanding Securities to receive solely from the trust fund described in
paragraph (d) below and as more fully set forth in such paragraph, payments in
respect of the principal of, premium, if any, and interest on such Securities
when such payments are due, (ii) the Company's obligations with respect to such
Securities under Sections 2.06, 2.07 and 4.04, and, with respect to the Trustee,
under Section 7.07, (iii) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and (iv) this Section 8.01. Subject to compliance with
this Section 8.01, the Company may exercise its option under this paragraph (b)
notwithstanding the prior exercise of its option under paragraph (c) below with
respect to the Securities.
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(c) Upon the Company's exercise under paragraph (a) of the option applicable
to this paragraph (c), the Company shall be released and discharged from its
obligations under any covenant contained in Article 5 and in Sections 4.02
through 4.12 with respect to the outstanding Securities on and after the date
the conditions set forth below are satisfied ("covenant defeasance"), and the
Securities shall thereafter be deemed to be not "outstanding" for the purpose of
any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the outstanding
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.01 but,
except as specified above, the remainder of this Indenture and such Securities
shall be unaffected thereby.
(d) The following shall be the conditions to the application of either
paragraph (b) or (c) above to the outstanding Securities:
(1) the Company has irrevocably deposited in trust with the
Trustee or, at the option of the Trustee, with a trustee, satisfactory
to the Trustee and the Company under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, money or
United States Government Obligations (defined below in this Section
8.01) sufficient to pay principal and interest on the Securities to
maturity and all other sums payable by it hereunder; provided that (i)
the trustee of the irrevocable trust shall have been irrevocably
instructed to pay such money or the proceeds of such United States
Government Obligations to the Trustee and (ii) the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such
United States Government Obligations to the payment of said principal
and interest with respect to the Securities;
(2) the Company has delivered to the Trustee an Officers'
Certificate stating that (A) all conditions precedent provided for
relating to either the legal defeasance under paragraph (b) above or the
covenant defeasance under paragraph (c) above, as the case may be, have
been complied with and (B) if any other Indebtedness of the Company
shall then be outstanding or committed, such legal defeasance or
covenant defeasance will not violate the provisions of the agreements or
instruments evidencing such Indebtedness;
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(3) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit;
(4) such legal defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a Default or Event of Default
under, this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound;
(5) in the case of an election under paragraph (b) above, the
Company shall have delivered to the Trustee an Opinion of Counsel from
nationally recognized counsel acceptable to the Trustee stating that (x)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (y) since the date of this
Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that the Holders of the outstanding
Securities will not recognize income, gain or loss for federal income
tax purposes as a result of such legal defeasance and will be subject to
federal income tax on the same amount and in the same manner and at the
same time as would have been the case if such legal defeasance had not
occurred; and
(6) in the case of an election under paragraph (c) above, the
Company shall have delivered to the Trustee an Opinion of Counsel from
nationally recognized counsel acceptable to the Trustee (i) to the
effect that the Holders of the outstanding Securities will not recognize
income, gain or loss for federal income tax on the same amount and in
the same manner and at the same time as would have been the case if such
covenant defeasance had not occurred or (ii) that the Company has
received from, or there has been published by, the Internal Revenue
Service a ruling to the foregoing effect.
After such irrevocable deposit made pursuant to this Section 8.01 and
satisfaction of the other conditions set forth herein, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
this Indenture except for those surviving obligations specified above.
As used herein, "United States Government Obligations" means direct
obligations of the United States of America for the payment of which the full
faith and credit of the United States of America is pledged. In order to have
money available on a payment date to pay principal or interest on the
Securities, the United States Government Obligations shall be payable as to
principal or interest on or before such payment date in such amounts as will
provide the necessary money. United States Government Obligations shall not be
callable at the issuer's option.
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SECTION 8.02. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money or United States Government
Obligations deposited with it pursuant to Section 8.01. It shall apply the
deposited money and the money from United States Government Obligations through
the Paying Agent and in accordance with this Indenture to the payment of
principal and interest on the Securities. Money and securities so held in trust
are not subject to Article 11.
SECTION 8.03. REPAYMENT TO COMPANY.
Subject to Section 8.01(d), the Trustee and the Paying Agent shall promptly
pay to the Company upon written request any excess money or securities held by
them at any time.
The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal or interest that
remains unclaimed for two years after the date upon which such payment shall
have become due; provided, however, that the Company shall have first caused
notice of such payment to the Company to be mailed to each Securityholder
entitled thereto no less than 30 days prior to such payment. After payment to
the Company, Securityholders entitled to the money must look to the Company for
payment as general creditors unless an applicable abandoned property law
designates another person.
SECTION 8.04. REINSTATEMENT.
If (i) the Trustee or Paying Agent is unable to apply any money in
accordance with Section 8.02 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application and (ii) the Holders of at least a majority in principal amount of
the then outstanding Securities so request by written notice to the Trustee, the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.01 until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02; provided, however, that if the Company makes any
payment of interest on or principal of any Security following 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 held by the Trustee or
Paying Agent.
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ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT THE CONSENT OF HOLDERS.
The Company and the Trustee may amend this Indenture or the Securities
without notice to or the consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Section[s] 5.01 [and 12.18];
(3) to provide for uncertificated Securities in addition to
certificated Securities;
(4) to make any change that does not adversely affect the legal
rights hereunder of any Securityholder;
(5) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions as the Company and the
Trustee shall consider to be for the protection of the Securityholders,
and to make the occurrence, or the occurrence and continuance, of a
default in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all or any
of the several remedies provided in this Indenture as herein set forth;
provided that in respect of any such additional covenant, restriction,
condition or provision, such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such an Event of Default or may limit
the remedies available to the Trustee upon such an Event of Default or
may limit the right of the Securityholders to waive such an Event of
Default;
(6) to surrender any right or power herein conferred upon the
Company;
(7) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of the Indenture under the TIA, or under any similar
federal statute hereafter enacted; or
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(8) before any Securities are issued, to make any other change in
this Indenture not prohibited by the TIA.
SECTION 9.02. WITH THE CONSENT OF HOLDERS.
Subject to Section 6.07, the Company and the Trustee may amend this
Indenture or the Securities with the written consent of the Holders of at least
a majority in principal amount of the then outstanding Securities.
Subject to Sections 6.04 and 6.07, the Holders of a majority in principal
amount of the Securities then outstanding may also waive compliance in a
particular instance by the Company with any provision of this Indenture or the
Securities.
However, without the consent of each Securityholder affected, an amendment
or waiver under this Section may not:
(1) reduce the amount of Securities whose Holders must consent to
an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest
on any Security;
(3) reduce the principal of or change the fixed maturity of any
Security or alter the redemption provisions with respect thereto;
(4) make any Security payable in money other than that stated in
the Security;
(5) make any change in Section 6.04, 6.07 or 9.02 (this
sentence); [or]
(6) waive a default in the payment of the principal of, or
interest on, any Security [or any default under Article 12; or]
(7) make any change that adversely affects the right to convert
any Security].
To secure a consent of the Holders under this Section, it shall not be
necessary for the Holders to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
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After an amendment or waiver under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing the amendment
or waiver.
SECTION 9.03. COMPLIANCE WITH THE TRUST INDENTURE ACT.
Every amendment to this Indenture or the Securities shall be set forth in a
supplemental indenture that complies with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it by a Holder
of a Security is a continuing consent by the Holder and every subsequent Holder
of a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the consent
as to his or her Security or portion of a Security if the Trustee receives the
notice of revocation before the date on which the Trustee receives an Officers'
Certificate certifying that the Holders of the requisite principal amount of
Securities have consented to the amendment or waiver.
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 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 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 consents from Holders of the principal amount of
Securities required hereunder for such amendment or waiver to be effective shall
have also been given and not revoked within such 90-day period.
After an amendment or waiver becomes effective it shall bind every
Securityholder, unless it is of the type described in any of clauses (1) through
(7) of Section 9.02. In such case, the amendment or waiver shall bind each
Holder of a Security who has consented to it.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee may place an appropriate notation about an amendment or waiver
on any Security thereafter authenticated. The Company in exchange for all
Securities may issue and the Trustee shall authenticate new Securities that
reflect the amendment or waiver.
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SECTION 9.06. THE TRUSTEE PROTECTED.
The Trustee shall sign all supplemental indentures, except that the Trustee
need not sign any supplemental indenture that adversely affects its rights. The
Company may not sign an amendment or supplement until the Board of Directors
approves it. The Trustee, subject to Sections 7.01 and 7.02, shall be entitled
to receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that any amendment, supplement or waiver is authorized or permitted by
this Indenture and complies with the provisions of this Article 9.
ARTICLE 10
GENERAL PROVISIONS
SECTION 10.01. 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
as in effect at the date hereof or, to the extent required by law, as amended
after the date hereof, the required provision shall control.
SECTION 10.02. NOTICES.
Any notice or communication by the Company or the Trustee to the other is
duly given if in writing and delivered in person or mailed by first-class mail
to the other's address stated in Section 10.10. The Company or the Trustee by
notice to the other may designate an additional or different address for
subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by first
class mail to his or her address shown on the register kept by the Registrar.
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 within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Securityholders, it shall
mail a copy to the Trustee and each Agent at the same time.
All other notices or communications shall be in writing.
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SECTION 10.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 10.04. 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 stating that, in the opinion of the
Company, 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 stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of the Company, such person
has made such examination or investigation as is necessary to enable him
or her 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 the
Company, such condition or covenant has been complied with;
provided, however, that with respect to matters of fact an Opinion of Counsel
may rely on an Officers' Certificate.
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SECTION 10.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar [, or] Paying Agent [or Conversion Agent] may
make reasonable rules and set reasonable requirements for its functions.
SECTION 10.07. LEGAL HOLIDAYS; BUSINESS DAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in the City of New York or in the city in which the principal
office of the Trustee is located are not required to be open, and a "Business
Day" is any day that is not a Legal Holiday. 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 10.08. NO RECOURSE AGAINST OTHERS.
No director, officer, employee or shareholder, as such, of the Company shall
have any liability for any obligations of the Company under the Securities or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the Securities.
SECTION 10.09. COUNTERPARTS.
This Indenture may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
SECTION 10.10. OTHER PROVISIONS.
"Officer" means Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, the Chief Accounting Officer, any
Executive Vice President, Senior Vice President, any Vice President, the
Treasurer, any other Executive Officer, the Secretary, any Assistant Treasurer
or any Assistant Secretary of the Company.
The Company initially appoints the Trustee as Paying Agent, Registrar and
authenticating agent.
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The first certificate pursuant to Section 4.03 shall be for the fiscal year
ending on the first June 30 following the issuance of Securities hereunder, but
in no event later than one year after the date hereof.
The reporting date for Section 7.06 is September 15 of each year. The first
reporting date is the first September 15 following the issuance of Securities
hereunder.
The Trustee shall always have a combined capital and surplus of at least
$10,000,000 as set forth in its most recent published annual report of
condition.
The Company's address is:
Del Webb Corporation
6001 24th Street
Phoenix, AZ 85016
Attention: General Counsel
The Trustee's address [for purposes of Sections 2.03 and 4.04] is:
[Bank of Montreal Trust Company
88 Pine Street, 19th Floor
New York, New York 10005]
and for all other purposes hereunder is:
-------------------------------
-------------------------------
-------------------------------
Attn: Corporate Trust Division.]
SECTION 10.11. GOVERNING LAW.
The internal laws of the State of New York shall govern this Indenture, the
Securities, and all disputes arising under or related to either of them, without
regard to the choice or conflicts of laws provisions thereof. If any action or
proceeding shall be brought by a Holder of any of the Securities or by the
Trustee in order to enforce any right or remedy under this Indenture or under
the Securities, the Company hereby consents and will submit to the jurisdiction
of the courts of the State of New York sitting in the City of New York or any
federal court sitting in the City of New York. The Company hereby agrees to
accept service of process by notice given to it pursuant to the provisions of
Section 10.02.
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<PAGE> 50
SECTION 10.12. 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 other indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 10.13. 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 10.14. SEVERABILITY.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.15. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table 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.
ARTICLE 11
OMITTED
[ARTICLE 12
CONVERSION
SECTION 12.01. CONVERSION PRIVILEGE.
For the purpose of this Article XII and paragraph 17 of the Securities,
["Common Stock" means the common stock of the Company as it exists on the date
of this Indenture or as it may be constituted from time to time.] [and]
["Preferred Stock" means the Series __ Preferred Stock of the Company].
A Holder of a Security may convert it into [Preferred] [Common] Stock at any
time during the period stated in paragraph 17 of the Securities. The
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<PAGE> 51
number of shares issuable upon conversion of a Security is determined as
follows: (i) divide the principal amount to be converted by the conversion price
in effect on the conversion date; then (ii) round the result to the nearest
1/100th of a share.
The initial conversion price is stated in paragraph 17 of the Securities.
The conversion price is subject to adjustment.
A Holder may convert a portion of a Security if the portion is $1,000 or an
integral multiple of $1,000. Provisions of this Indenture that apply to
conversion of all of a Security also apply to conversion of a portion of it.
SECTION 12.02. CONVERSION PROCEDURE.
To convert a Security a Holder must satisfy the requirements in paragraph 17
of the Securities. The date on which the Holder satisfies all those requirements
is the conversion date. As soon as practical, the Company shall deliver through
the Conversion Agent a certificate for the number of full shares of [Preferred]
[Common] Stock issuable upon the conversion and a check for any fractional
share. The person in whose name the certificate is registered shall be treated
as a stockholder of record on and after the conversion date.
No payment or adjustment will be made for accrued interest on a converted
Security or dividends on any [Preferred] [Common] Stock issued. However,
interest will be paid on any interest payment date with respect to Securities
surrendered for conversion after a record date for the payment of interest to
the registered Holder on such record date.
If a Holder converts more than one Security at the same time, the number of
full shares issuable upon the conversion shall be based on the total principal
amount of the Securities converted.
Upon a surrender of a Security that is converted in part, the Company shall
issue and the Trustee shall authenticate for the Holder a new Security equal in
principal amount to the unconverted portion of the Security surrendered.
If the last day on which a Security may be converted is a Legal Holiday in a
place where a Conversion Agent is located, the Security may be surrendered to
that Conversion Agent on the next succeeding day that is not a Legal Holiday.
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<PAGE> 52
SECTION 12.03. FRACTIONAL SHARES.
The Company will not issue a fractional share of [Preferred] [Common] Stock
upon conversion of a Security. Instead the Company will deliver its check for
the current market value of the fractional share. The current market value of a
fraction of a share is determined as follows: (i) multiply the current market
price of a full share by the fraction; then (ii) round the result to the nearest
cent.
The current market price of a share of [Preferred] [Common] Stock is the
Quoted Price of the [Preferred] [Common] Stock on the last trading day prior to
the conversion date. As used in Sections 12.03 and 12.11, the "Quoted Price" of
the Common Stock is the last reported sales price of the [Preferred] [Common]
Stock on the New York Stock Exchange or such other securities exchange on which
the [Preferred] [Common] Stock may then be listed, or if the Common Stock is not
listed on a securities exchange, the last reported sales price of the
[Preferred] [Common] Stock as reported by NASDAQ, National Market System or if
neither so reported or listed, the last reported bid price of the [Preferred]
[Common] Stock. In the absence of such a quotation, the Company shall determine
the current market price on the basis of such quotations or other information as
it considers appropriate.
SECTION 12.04. TAXES ON CONVERSION.
If a Holder of a Security converts it, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on the issue of shares
of [Preferred] [Common] Stock upon the conversion. However, the Holder shall pay
any such tax which is due because the shares are issued in a name other than the
Holder's name.
SECTION 12.05. COMPANY TO PROVIDE STOCK.
The Company has reserved and shall continue to reserve out of its authorized
but unissued [Preferred] [Common] Stock or its [Preferred] [Common] Stock held
in treasury enough shares of [Preferred] [Common] Stock to permit the conversion
of the Securities in full.
All shares of [Preferred] [Common] Stock which may be issued upon conversion
of the Securities shall be fully paid and non-assessable.
The Company will endeavor to comply with all securities laws regulating the
offer and delivery of shares of [Preferred] [Common] Stock upon conversion of
Securities and will endeavor to list such shares on each national securities
exchange on which the [Preferred] [Common] Stock is listed.
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<PAGE> 53
SECTION 12.06. ADJUSTMENT FOR CHANGE IN CAPITAL STOCK.
Subject to Section 12.18, if the Company:
(1) pays a dividend or makes a distribution on its [Preferred]
[Common] Stock in shares of its [Preferred] [Common] Stock;
(2) subdivides its outstanding shares of [Preferred] [Common]
Stock into a greater number of shares;
(3) combines its outstanding shares of [Preferred] [Common] Stock
into a smaller number of shares;
(4) makes a distribution on its [Preferred] [Common] Stock in
shares of its capital stock other than [Preferred] [Common] Stock; or
(5) issues by reclassification of its [Preferred] [Common] Stock
any shares of its capital stock;
then the conversion privilege and the conversion price in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of capital stock of the
Company which he would have owned immediately following such action if he had
converted the Security immediately prior to such action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon conversion of it may
receive shares of two or more classes of capital stock of the Company, the
Company shall determine the allocation of the adjusted conversion price between
the classes of capital stock. After such allocation, the conversion privilege
and the conversion price of each class of capital stock shall thereafter be
subject to adjustment on terms comparable to those applicable to [Preferred]
[Common] Stock in this Article.
SECTION 12.07. ADJUSTMENT FOR RIGHTS ISSUE.
If the Company distributes any rights or warrants [other than the Warrants
(the "Warrants") which are issued as part of unit consisting of Warrants and the
Securities] to all holders of its [Preferred] [Common] Stock entitling them for
a period expiring within 60 days after the record date mentioned below to
purchase shares of [Preferred] [Common] Stock at
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<PAGE> 54
a price per share less than the current market price per share on that record
date, the conversion price shall be adjusted in accordance with the formula set
forth below and the paragraph following such formula:
N x P
------
C' = C x O + M
-----------------
O + N
where:
C' = the adjusted conversion price.
C = the current conversion price.
O = the number of shares of [Preferred] [Common] Stock outstanding
on the record date.
N = the number of additional shares of [Preferred] [Common] Stock
offered.
P = the offering price per share of the additional shares.
M = the current market price per share of [Preferred] [Common]
Stock on the record date.
The adjustment shall be made successively whenever any such rights become
exercisable or such warrants are issued and shall become effective immediately
after the rights become exercisable or after the record date for the
determination of stockholders entitled to receive the warrants. If at the end of
the period during which such warrants or rights are exercisable, not all
warrants or rights shall have been exercised, the conversion price shall be
immediately readjusted to what it would have been if "N" in the above formula
had been the number of shares actually issued.
SECTION 12.08. ADJUSTMENT FOR OTHER DISTRIBUTIONS.
If the Company distributes to all holders of its [Preferred] [Common] Stock
(as such) any of its assets or debt securities or any rights or warrants to
purchase assets, debt securities or other securities of the Company, the
conversion price shall be adjusted in accordance with the formula set forth
below and the paragraph following such formula:
C' = C x M - F
-----
M
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<PAGE> 55
where:
C' = the adjusted conversion price.
C = the current conversion price.
M = the current market price per share of [Preferred] [Common]
Stock on the record date mentioned below.
F = the fair market value on the record date of the assets,
securities, rights or warrants applicable to one share of
[Preferred] [Common] Stock. The Board of Directors shall
determine the fair market value.
The adjustment shall be made successively whenever any such rights become
exercisable or any such distribution (other than of such rights) is made and
shall become effective immediately after any such rights become exercisable (as
to rights) or after the record date for the determination of stockholders
entitled to receive the distribution (as to other distributions).
Notwithstanding the foregoing, no adjustment shall be made in the event that
rights become exercisable if and to the extent Holders of Securities have
received or are entitled to receive such rights upon conversion. In addition, to
the extent the rights or warrants expire unexercised, then the conversion price
shall be promptly readjusted to the conversion price which would then be in
effect had the adjustment been made based on the number of rights or warrants
exercised.
This Section does not apply to regular cash dividends or cash distributions
paid out of consolidated current earnings as shown on the books of the Company.
Also, this Section does not apply to rights or warrants referred to in Section
12.07, including the Warrants.
SECTION 12.09. ADJUSTMENT FOR [PREFERRED] [COMMON] STOCK ISSUE.
If the Company issues shares of [Preferred] [Common] Stock for a
consideration per share less than the current market price per share on the date
the Company fixes the offering price of such additional shares, the conversion
price shall be adjusted in accordance with the formula:
O + P
---
C' = C x M
-------
A
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<PAGE> 56
where:
C' = the adjusted conversion price.
C = the then current conversion price.
O = the number of shares outstanding immediately prior to the
issuance of such additional shares.
P = the aggregate consideration received for the issuance of such
additional shares.
M = the current market price per share on the date of issuance of
such additional shares.
A = the number of shares outstanding immediately after the issuance
of such additional shares.
The adjustment shall be made successively whenever any such issuance is
made, and shall become effective immediately after such issuance.
This Section does not apply to (i) any of the transactions described in
Sections 12.07, 12.08 and 12.10, (ii) the conversion of Securities, or the
conversion, exchange or exercise of other securities convertible or exchangeable
for [Preferred] [Common] Stock, (iii) [Preferred] [Common] Stock issued to the
Company's employees under bona fide employee plans adopted by the Board of
Directors and approved by the holders of [Preferred] [Common] Stock when
required by law, if such [Preferred] [Common] Stock would otherwise be covered
by this Section (but only to the extent that the aggregate number of shares
excluded hereby and issued after the date of this Indenture shall not exceed
[5%] of the [Preferred] [Common] Stock outstanding at the time of the adoption
of each such plan, exclusive of antidilution adjustments thereunder), (iv)
[Preferred] [Common] Stock issued to acquire, or in the acquisition of, all or
any portion of a business as a going concern or of developed, undeveloped or
mixed real property, in an arms-length transaction between the Company and an
unaffiliated third party, whether such acquisition shall be effected by purchase
of assets, exchange of securities, merger, consolidation or otherwise, (v)
[Preferred] [Common] Stock issued in a bona fide public offering pursuant to a
firm commitment underwriting or (vi) [Preferred] [Common] Stock issued on
exercise of rights if and to the extent Holders of Securities have received or
are entitled to receive such rights upon conversion.
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<PAGE> 57
SECTION 12.10. ADJUSTMENT FOR CONVERTIBLE SECURITIES ISSUE.
If the Company issues any securities convertible into or exchangeable or
exercisable for [Preferred] [Common] Stock (other than the Securities or
securities issued in transactions described in Sections 12.07 and 12.08) for a
consideration per share of [Preferred] [Common] Stock initially deliverable upon
conversion, exchange or exercise of such securities less than the current market
price per share on the date of issuance of such securities, the conversion price
shall be adjusted in accordance with this formula:
O + P
--
C' = C x M
------
O + D
where:
C' = the adjusted conversion price.
C = the then current conversion price.
O = the number of shares outstanding immediately prior to the
issuance of such securities.
P = the aggregate consideration received for the issuance of such
securities (including as determined in Section 12.12(3)).
M = the current market price per share on the date of issuance of
such securities.
D = the maximum number of shares deliverable upon conversion or in
exchange for or upon exercise of such securities at the initial
conversion, exchange or exercise rate.
The adjustment shall be made successively whenever any such issuance is
made, and shall become effective immediately after such issuance. If all of the
[Preferred] [Common] Stock deliverable upon conversion, exchange or exercise of
such securities have not been issued when such securities are no longer
convertible, exchangeable or exercisable, 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 securities been made on the basis of
the actual number of shares of [Preferred] [Common] Stock issued upon
conversion, exchange or exercise of such securities.
This Section does not apply to (1) convertible securities issued to acquire,
or in the acquisition of, all or any portion of a business as a going concern or
of developed, undeveloped or mixed real property, in an arms-
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<PAGE> 58
length transaction between the Company and an unaffiliated third party, whether
such acquisition shall be effected by purchase of assets, exchange of
securities, merger, consolidation or otherwise, or (ii) convertible securities
issued in a bona fide public offering pursuant to a firm commitment
underwriting.
SECTION 12.10A. SPECIAL PROVISION REGARDING PREFERRED STOCK.
In addition to the foregoing adjustments and without duplication, if (x)
prior to the exercise of a Security an event ("Event") occurs which, under the
Certificate of Designations with respect to the Preferred Stock, would have
required an adjustment in the number of share(s) of Common Stock into which the
shares of Preferred Stock acquired on conversion of the Securities would have
been convertible if such Security had previously been converted into Preferred
Stock (but such Preferred Stock acquired on conversion had not been converted
into Common Stock), then (y) after the Event, such share of Preferred Stock
shall, when acquired on conversion of the Security, be convertible into the same
number of share(s) of Common Stock into which it would have been convertible if
such Security had been converted into Preferred Stock (but such Preferred Stock
acquired on conversion had not been converted into Common Stock) prior to the
Event. The adjustment required by the foregoing sentence shall be made each time
there is an Event, provided that no adjustment shall be made under this Section
12.10A unless that adjustment results in a change of 1%, provided further that
all adjustments not made by virtue of the preceding "provided" clause shall be
carried forward and made when the aggregate of all such adjustments results in a
change of at least 1%.]*
SECTION 12.11. CURRENT MARKET PRICE.
In Sections 12.07, 12.08, 12.09 and 12.10, the current market price per
share of [Preferred] [Common] Stock on any date is the average of the Quoted
Prices (as defined in Section 12.03) of the [Preferred] [Common] Stock for 20
consecutive trading days commencing 30 trading days before the date in question.
In the absence of one or more such quotations, the Company shall determine the
current market price on the basis of such quotations or other information as it
considers appropriate.
- -----------------------
* This provision will be used, if at all, if the Securities are exercisable for
Preferred Stock which is convertible into Common Stock.
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SECTION 12.12. CONSIDERATION RECEIVED.
For purposes of any computation respecting consideration received pursuant
to Sections 12.09 and 12.10, the following shall apply:
(1) in the case of the issuance of shares of [Preferred] [Common]
Stock for cash, the consideration shall be the amount of such cash,
provided that in no case shall any deduction be made for any
commissions, discounts or, without limitation, other expenses incurred
by the Company for any underwriting of the issue or otherwise in
connection therewith,
(2) in the case of the issuance of shares of [Preferred] [Common]
Stock for a consideration in whole or in part other than cash, the
consideration other than cash shall be deemed to be the fair market
value thereof as determined in good faith by the Board of Directors
(irrespective of the accounting treatment thereof), whose determination
shall be conclusive, and described in a Board resolution which shall be
filed with the Trustee; and
(3) in the case of the issuance of securities convertible into or
exchangeable or exercisable for shares, the aggregate consideration
received therefor shall be deemed to be the consideration received by
the Company for the issuance of such securities plus the additional
minimum consideration, if any, to be received by the Company upon the
conversion or exchange thereof (the consideration in each case to be
determined in the same manner as provided in clauses (1) and (2) of this
Section).
SECTION 12.13. WHEN ADJUSTMENT MAY BE DEFERRED.
No adjustment in the conversion price need be made unless the adjustment
would require an increase or decrease of at least 1% in the conversion price.
Any adjustments that are not made shall be carried forward and taken into
account in any subsequent adjustment.
All calculations under this Article shall be made to the nearest cent or to
the nearest 1/100th of a share, as the case may be.
SECTION 12.14. WHEN NO ADJUSTMENT REQUIRED.
No adjustment need be made for a transaction referred to in Sections 12.06,
12.07, 12.08, 12.09 or 12.10 if all Securityholders are entitled to participate
in the transaction on a basis and with notice that the Board of Directors
determines to be fair and appropriate in light of the basis
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<PAGE> 60
and notice on which holders of [Preferred] [Common] Stock participate in the
transaction.
No adjustment need be made for rights to purchase [Preferred] [Common] Stock
pursuant to a Company plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or no par value of
the [Preferred] [Common] Stock.
To the extent the Securities become convertible into cash, no adjustment
need be made thereafter as to the cash. Interest will not accrue or be deemed to
accrue on the cash for this purpose.
In any case in which this Article 12 or the Securities shall require that an
adjustment in the conversion price be made effective as of a record date for a
specified event and notwithstanding anything to the contrary in this Article 12
of the Securities, the Company may elect to defer until the occurrence of such
event the issuing to the holder of any Security converted after such record
date, the [Preferred] [Common] Stock or other capital stock of the Company, if
any, issuable upon such conversion over and above the [Preferred] [Common] Stock
or other capital stock of the Company, if any, issuable upon such conversion on
the basis of the conversion price in effect prior to such adjustment; provided,
however, [that the Company shall deliver to such holder a due bill or other
appropriate instrument evidencing, subject to the following proviso, such
holder's right to receive such additional shares upon the occurrence of the
event requiring such adjustment and, provided further,] to the extent such event
does not occur, the adjustment made in respect of such non-occurrence shall be
retroactive and affect each conversion security converted between such Record
Date and the date of such non-occurrence.
SECTION 12.15. NOTICE OF ADJUSTMENT.
Whenever the conversion price is adjusted, the Company shall promptly mail
to Securityholders a notice of the adjustment. The Company shall file with the
Trustee a certificate from the Company's independent public accountants briefly
stating the facts requiring the adjustment and the manner of computing it. The
certificate shall be conclusive evidence that the adjustment is correct, absent
manifest error.
SECTION 12.16. VOLUNTARY REDUCTION.
The Company from time to time may reduce the conversion price by any amount
for any period of time if the period is at least [20] days and if the reduction
is irrevocable during the period; provided that in no event may
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<PAGE> 61
the conversion price be less than the then par value of a share of [Preferred]
[Common] Stock, if any.
Whenever the conversion price is reduced, the Company shall mail to
Securityholders a notice of the reduction. The Company shall mail the notice at
least 15 days before the date the reduced conversion price takes effect. The
notice shall state the reduced conversion price and the period it will be in
effect.
A reduction of the conversion price does not change or adjust the conversion
price otherwise in effect for purposes of Sections 12.06, 12.07, 12.08, 12.09
and 12.10.
SECTION 12.17. NOTICE OF CERTAIN TRANSACTIONS.
If:
(1) the Company takes any action that would require an adjustment
in the conversion price pursuant to Sections 12.06, 12.07, 12.08, 12.09
or 12.10 and if the Company does not let Securityholders participate
pursuant to Section 12.14 [or which is referred to in Section 12.10A];
(2) the Company takes any action that would require a
supplemental indenture pursuant to Section 12.18; or
(3) there is a liquidation or dissolution of the Company,
the Company shall mail to Securityholders and to the Trustee a notice stating
the proposed record date, proposed effective date or other relevant proposed
date of the act in question. The Company shall mail the notice at least [15]
days before such date. Failure to mail the notice or any defect in it shall not
affect the validity of the transaction.
SECTION 12.18. REORGANIZATION OF COMPANY.
If the Company is a party to a transaction subject to Section 5.01, or a
transaction which reclassifies or changes its outstanding [Preferred] [Common]
Stock, upon consummation of such transaction the Securities shall automatically
become convertible into the kind and amount of securities, cash or other assets
which the Holder of a Security would have owned immediately after the
transaction if the Holder had converted the Security immediately before the
effective date of the transaction. Concurrently with the consummation of such
transaction, the person obligated to issue securities or deliver cash or other
assets upon conversion of the Securities shall enter into a supplemental
indenture so providing and
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<PAGE> 62
further providing for adjustments which shall be as nearly equivalent as may be
practical to the adjustments provided for in this Article. The Company or, if
applicable, the other person shall mail to Securityholders a notice describing
the transaction and supplemental indenture.
If securities deliverable upon conversion of Securities, as provided above,
are themselves convertible into the securities of an Affiliate of the other
person, that Affiliate shall join in the supplemental indenture and the
supplemental indenture shall so provide.
If this Section applies, Section 12.06 does not apply.
SECTION 12.19. COMPANY DETERMINATION FINAL.
Any determination that the Company or the Board of Directors must make
pursuant to Section 12.03, 12.06, 12.08, 12.09, 12.10, 12.11, 12.12 or 12.14 is
conclusive.
SECTION 12.20. TRUSTEE'S DISCLAIMER.
The Trustee has no duty to determine when an adjustment under this Article
should be made, how it should be made or what it should be. The Trustee has no
duty to determine whether any provisions of a supplemental indenture under
Section 12.18 are correct. The Trustee makes no representation as to the
validity or value of any securities or assets issued upon conversion of
Securities. The Trustee shall not be responsible for the Company's failure to
comply with this Article. Each Conversion Agent other than the Company shall
have the same protection under this Section as the Trustee.]
The parties have caused this Indenture to be duly executed and attested, all
as of the date first above written, in _____________, _____________, signifying
their agreements contained in this Indenture.
SIGNATURES
DEL WEBB CORPORATION
By:_______________________________
Attest:
________________________
55
<PAGE> 63
[Bank of Montreal Trust Company]
as Trustee
-----------------------------
Attest:
- -------------------------
56
<PAGE> 64
EXHIBIT A
(FACE OF SECURITY)*
No. $ CUSIP No. ____
DEL WEBB CORPORATION
promises to pay to
or registered assigns,
the principal sum of Dollars on ________________________
_____% [CONVERTIBLE] SENIOR [DEBENTURE] [NOTE]
DUE ________
Interest Payment Dates: _______________ and _______________
Record Dates: _______________ and _______________
This is one of the Securities Dated:
mentioned in the Indenture
referred to below:
[Bank of Montreal Trust Company,] DEL WEBB CORPORATION
as Trustee
By:_________________________ By:_________________________
Authorized Signatory
By:_________________________
________________________
* Global Securities will have any appropriate modifications and will bear
essentially the following legend:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
REFERRED TO BELOW AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED
OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER
THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE
REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION
OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE
A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.
A-1
<PAGE> 65
(BACK OF SECURITY)
_____________
___% [Convertible] Senior [Debenture] [Note]
Due __________
1. Interest. Del Webb Corporation, 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. 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 _________, 199_. 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 registered holders of
Securities at the close of business on the record date for the next interest
payment date even though Securities are canceled after the record date and on or
before 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. However, the Company may pay principal and
interest by check payable in such money. It may mail an interest check to a
holder's registered address.
3. Paying Agent [, and] Registrar [and Conversion Agent]. [____________
_____________________] (the "Trustee") will act as Paying Agent [, and]
Registrar [and Conversion Agent]. The Company may change the Paying Agent,
Registrar or co-registrar without prior notice. The Company or any of its
subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Securities under an Indenture dated
as of ___________, 199_ [as modified by a Supplemental Indenture dated as of
___________, 199_] ([collectively, ]the "Indenture") between the Company
and the Trustee. 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 Sections 77aaa-77bbbb) as in effect on
the date of the Indenture. The Securities are subject to, and qualified by, all
such terms, certain of which are summarized hereon, and Securityholders are
referred to the Indenture and such Act for a statement of such terms. The
Securities are unsecured general obligations of the Company limited to
$__________ in aggregate principal amount [of which $___________ may only be
issued as 'Additional Securities' on or before the 30th day after the date of,
and pursuant to the terms of, that certain Underwriting Agreement dated
_________, 199_ by and between the Company and _________________. The Company
will not originally issue any Additional
A-2
<PAGE> 66
Securities except pursuant to the Underwriting Agreement. If no Additional
Securities are issued the Securities will be limited to $____________ in
aggregate principal amount.] Capitalized terms not defined below have the same
meaning as is given to them in the Indenture.
5[A]. Optional Redemption. The Company may not redeem the Securities prior
to ____________. Thereafter, the Company may redeem all the Securities at any
time or some of them from time to time at the redemption prices (expressed in
percentages of principal amount) set forth below plus accrued interest to the
redemption date, if redeemed during the 12-month period beginning _________ of
the years starting with _____ indicated below.
Year Percentage Year Percentage
and
thereafter 100.000
[5B. Mandatory Redemption. The Company will redeem ___% of the [initial]
principal amount of Securities [(including any Additional Securities)] [then
outstanding] on ____________, and on each _________ thereafter through
___________ at a redemption price of 100% of principal amount, plus accrued
interest to the redemption date. The Company may reduce the principal amount of
Securities to be redeemed pursuant to this paragraph 6 by subtracting 100% of
the principal amount (excluding premium) of any Securities that [Securityholders
have converted,] the Company has delivered to the Trustee for cancellation or
the Company has previously purchased, redeemed, retired or acquired other than
pursuant to this paragraph 6, provided that the Company may so subtract the same
Security only once.]
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 or her registered address. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. In the event of a redemption of less than all of the
Securities, the Securities will be chosen for redemption by the Trustee,
generally pro rata or by lot. On and after the redemption date interest ceases
to accrue on Securities or portions of them called for redemption.
If this Security is redeemed subsequent to a record date with respect to any
interest payment date specified above and on or prior to such interest payment
A-3
<PAGE> 67
date, then any accrued interest will be paid to the person in whose name this
Security is registered at the close of business on such record date.
7. Change of Control. Upon a Change of Control, the Company shall make a
Change of Control Offer to purchase all outstanding securities at a price equal
to 101% of the aggregate principal amount of the Securities, plus accrued and
unpaid interest to the date of purchase. To accept the Change of Control Offer,
the Holder hereof must comply with the terms thereof, including surrendering
this Security, with the "Option of Holder to Elect Purchase" portion hereof
completed, to the Company, a depositary, if appointed by the Company, or a
Paying Agent, at the address specified in the notice of the Change of Control
Offer mailed to Holders as provided in the Indenture, prior to termination of
the Change of Control Offer.
8. [Omitted.]
9. Denominations, Transfer, Exchange. The Securities are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Securities may be registered and Securities may be exchanged as
provided in the Indenture. As a condition of transfer, 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 exchange or register the transfer of any
Security or portion of a Security selected for redemption. Also, it need not
exchange or register the transfer of 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. Amendments and Waivers. Subject to certain exceptions, the Indenture or
the Securities may be amended with the consent of the holders of at least a
majority in principal amount of the then outstanding Securities and any existing
default may be waived with the consent of the holders of a majority in principal
amount of the then outstanding Securities. Without the consent of any
Securityholder, the Indenture or the Securities may be amended: to cure any
ambiguity, defect or inconsistency; to provide for assumption of the Company's
obligations to Securityholders; to make any change that does not adversely
affect the rights of any Securityholder; to add to the covenants of the Company,
for the benefit of the Securityholders; or to modify the Indenture to effect its
qualification under the TIA.
12. Defaults and Remedies. An Event of Default is: default for 30 days in
payment of interest on the Securities; default in payment of principal of and
premium, if any, on the Securities; failure by the Company for 60 days after
notice to it to comply with any of its other agreements in the Indenture or the
Securities or, in the case of failure by the Company to maintain its corporate
A-4
<PAGE> 68
existence or to comply with the restrictions on payments of dividends and other
distributions, the restrictions on consolidation, merger or transfer or lease of
substantially all its assets [or the provisions regarding conversion of the
Securities], with such notice but without such passage of time; certain defaults
under and accelerations prior to maturity of certain Indebtedness; certain final
judgments which remain undischarged; and certain events of bankruptcy or
insolvency. If an Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the then outstanding Securities
may declare all the Securities to be due and payable immediately, except that in
the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Securities become due and payable without further
action or notice. Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, holders of a majority in principal amount of the
then outstanding Securities may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Securityholders notice of any continuing
default (except a default in payment of principal or interest) if it determines
that withholding notice is in their interests. The Company must furnish an
annual compliance certificate to the Trustee.
13. Trustee Dealings with the Company. [Bank of Montreal Trust Company], the
Trustee under the Indenture, or any of its Affiliates, in their individual or
any other capacities, may make or continue loans to or guaranteed by, accept
deposits from and perform services for the Company or its Affiliates and may
otherwise deal with the Company or its Affiliates as if [Bank of Montreal Trust
Company] were not Trustee.
14. No Recourse Against Others. No director, officer, employee or
stockholder, as such, of the Company shall have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
Securities.
15. Authentication. This Security shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN CO = tenants in common, TEN ENT =
tenants by the entireties, JT TEN = joint tenants with right 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, which has in it the text of this
Security
A-5
<PAGE> 69
larger type. Requests may be made to: Treasurer, Del Webb Corporation, 2231
East Camelback Road, P.O. Box 29040, Phoenix, AZ 85016.
[17. Conversion. A holder of a Security may convert it into [Preferred]
[Common] Stock of the Company at any time before the close of business on
________,_____. If the Security is called for redemption, the holder may convert
it at any time before the close of business on the redemption date (unless the
Company shall default in payment due upon redemption thereof). The initial
conversion price of $__ per share is subject to adjustment in certain events. 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. On conversion, no payment or adjustment for interest will be
made. However, interest will be paid on any interest payment date with respect
to Securities surrendered for conversion after a record date for the payment of
interest to the registered holder on such record date. The Company will deliver
a check for any fractional share.
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 a Conversion
Agent, (3) furnish appropriate endorsements and transfer documents if required
by the Registrar or Conversion Agent and (4) pay any transfer or similar tax if
required by the Indenture or applicable law. A holder may convert a portion of a
Security if the portion is $1,000 or an integral multiple of $1,000.
The conversion price is subject to adjustment as set forth in the Indenture
in certain events. No adjustment in the conversion price will be required unless
such adjustment would require a change of at least 1% in the price then in
effect; but any adjustment that would otherwise be required to be made shall be
carried forward and taken into account in any subsequent adjustment.
The Company from time to time may voluntarily reduce the conversion price
for a period of time.
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 Securities automatically
become convertible into the kind and amount of securities, cash or other assets
which the Holder of a Security would have owned immediately after such
transaction if the Holder had converted the Security immediately before the
effective date of the transaction.]
A-6
<PAGE> 70
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
- -------------------------------------------
(Insert assignee's soc. sec.
or tax I.D. no.)
- -------------------------------------------
- -------------------------------------------
- -------------------------------------------
- -------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint:
- -------------------------------------------
agent to transfer this Security on the books of the
Company. The agent may substitute another to act for
him or her.
Date:
-----------------------
[CONVERSION NOTICE
To convert this Security into [Preferred]
[Common] Stock of the Company, check the
box:
/ /
To convert only part of this Security, state the amount:
$
If you want the stock certificate made out
in another person's name, fill in the form
below:
(insert other person's soc.
sec. or tax I.D. no.)
- -------------------------------------------
- -------------------------------------------
- -------------------------------------------
- -------------------------------------------
(Print or type other person's name, address and zip code.)
Your signature:
----------------------------
- -------------------------------------------
(Sign exactly as your name appears on the
other side of this Security)]
Signature Guarantee:
A-7
<PAGE> 71
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Security purchased by the Company pursuant
to Section 4.11 of the Indenture and paragraph 7 of this Security, check the
box: / /
If you want to elect to have only part of this Security purchased by the
Company pursuant to Section 4.11 of the Indenture and paragraph 7 of this
Security, state the amount: $___________
Date:____________________ Your Signature: ________________________
(Sign exactly as your name
appears on the other side
of this Security)
Signature Guarantee:
A-8
<PAGE> 1
EXHIBIT 4.2
SCHEDULE OF MATERIAL DETAILS IN WHICH THE FORM OF SENIOR
SUBORDINATED DEBT INDENTURE (INCLUDING FORM OF SENIOR
SUBORDINATED DEBENTURE/ NOTE) DIFFERS FROM EXHIBIT 4.1, THE FORM
OF SENIOR DEBT INDENTURE (INCLUDING FORM OF SENIOR
DEBENTURE/NOTE)
The form of Senior Subordinated Debt Indenture (including the
form of Senior Subordinated Debenture/Note) (the "Senior Subordinated Debt
Indenture") differs from Exhibit 4.1, the form of Senior Debt Indenture
(including the form of Senior Debenture/Note) (the "Senior Debt Indenture"), in
the following respects:
(1) The word "Senior" in the Senior Debt Indenture is
changed to the words "Senior Subordinated" in the
Senior Subordinated Debt
Indenture;
(2) Section 4.12 of the form of Senior
Subordinated Debt Indenture and the reference to
Section 4.12 in the Table of Contents to the Senior
Subordinated Debt Indenture are not present in the
form of Senior Debt Indenture; and
(3) Article 11 and the reference to Article 11 in the
Table of Contents in the Senior Subordinated Debt
Indenture and paragraph 8 of the form of Senior
Subordinated Debenture/Note are not present in form of
Senior Debt Indenture and the form of Senior
Debenture/Note; and
In addition, a few other provisions concerning subordination of
the Senior Subordinated Debentures/Notes, which are included in the Senior
Subordinated Debt Indenture, are not applicable to, and do not appear in, the
Indenture for the Senior Debentures/Notes.
<PAGE> 2
EXHIBIT 4.2
DEL WEBB CORPORATION
AND
[BANK OF MONTREAL TRUST COMPANY]
AS TRUSTEE
$____________
___% [Convertible] Senior Subordinated [Debentures] [Notes]*
INDENTURE
Dated as of _____, 199_
----------------
* Language in brackets indicates alternative language or provisions to be
supplied. As appropriate, disclosure will be made in the relevant
Prospectus Supplement as to which alternative has been chosen or
provisions added and a copy of the final Indenture will be filed as an
Exhibit to a Form 8-K, or other appropriate periodic report.
<PAGE> 3
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)............................................. 7.10
(a)(2)............................................. 7.10
(a)(3)............................................. N.A.
(a)(4)............................................. N.A.
(b)................................................ 7.08; 7.10; 10.02
(c)................................................ N.A.
311(a)................................................ 7.11
(b)................................................ 7.12
(c)................................................ N.A.
312(a)................................................ 2.05
(b)................................................ 10.03
(c)................................................ 10.03
313(a)................................................ 7.06
(b)(1)............................................. N.A.
(b)(2)............................................. 7.06
(c)................................................ 7.06; 10.02
(d)................................................ 7.06
314(a)................................................ 4.01; 10.02
(b)................................................ N.A.
(c)(1)............................................. 10.04
(c)(2)............................................. 10.04
(c)(3)............................................. N.A.
(d)................................................ N.A.
(e)................................................ 10.05
(f)................................................ N.A.
315(a)................................................ 7.01(b)
(b)................................................ 7.05; 10.02
(c)................................................ 7.01(a)
(d)................................................ 7.01(c)
(e)................................................ 6.11
316(a)(last sentence)................................. 2.09
(a)(1)(A).......................................... 6.05
(a)(1)(B).......................................... 6.04
(a)(2)............................................. N.A.
(b)................................................ 6.07
317(a)(1)............................................. 6.08
(a)(2)............................................. 6.09
(b)................................................ 2.04
318(a)................................................ 10.01
N.A. means not applicable.
- ---------------
*This Cross-Reference Table is not part of the Indenture.
<PAGE> 4
TABLE OF CONTENTS
Page
ARTICLE 1
Definitions
Section 1.01. Definitions............................................. 1
"Affiliate"......................................... 1
"Agent"............................................. 1
"Board of Directors"................................ 1
"capital stock"..................................... 1
"Change of Control"................................. 1
"Company"........................................... 2
"Consolidated Net Earnings"......................... 2
"Default"........................................... 2
"Disqualified Stock"................................ 3
"Equity Interests".................................. 3
"Exchange Act"...................................... 3
"Holder" or "Securityholder"........................ 3
"Indenture"......................................... 3
"Material Subsidiary"............................... 3
"Officers' Certificate"............................. 3
"Opinion of Counsel"................................ 3
"person"............................................ 3
"principal"......................................... 3
"redemption date"................................... 3
"redemption price".................................. 3
"SEC"............................................... 4
"Securities"........................................ 4
"subsidiary"........................................ 4
"TIA"............................................... 4
"Trustee"........................................... 4
"Trust Officer"..................................... 4
Section 1.02. Other Definitions....................................... 4
Section 1.03. Incorporation by Reference of Trust Indenture Act....... 5
Section 1.04. Rules of Construction................................... 5
i
<PAGE> 5
Page
ARTICLE 2
The Securities
Section 2.01. Form and Dating....................................... 6
Section 2.02. Execution and Authentication.......................... 6
Section 2.03. Registrar and Paying Agent............................ 7
Section 2.04. Paying Agent to Hold Money in Trust................... 7
Section 2.05. Securityholder Lists.................................. 8
Section 2.06. Transfer and Exchange................................. 8
Section 2.07. Replacement Securities................................ 8
Section 2.08. Outstanding Securities................................ 9
Section 2.09. When Treasury Securities Disregarded.................. 9
Section 2.10. Temporary Securities.................................. 9
Section 2.11. Cancellation.......................................... 10
Section 2.12. Defaulted Interest.................................... 10
Section 2.13. CUSIP Number.......................................... 10
ARTICLE 3
Redemption
Section 3.01. Notices to Trustee.................................... 10
Section 3.02. Selection of Securities to be Redeemed................ 11
Section 3.03. Notice of Redemption.................................. 11
Section 3.04. Effect of Notice of Redemption........................ 12
Section 3.05. Deposit of Redemption Price........................... 12
Section 3.06. Securities Redeemed in Part........................... 12
[Section 3.07. Mandatory Redemption Provision........................ 13]
ARTICLE 4
Covenants
Section 4.01. Payment of Securities................................. 13
Section 4.02. SEC Reports........................................... 13
Section 4.03. Compliance Certificate................................ 14
Section 4.04. Maintenance of Office or Agency....................... 15
Section 4.05. Restrictions on Dividends and Other Payments.......... 15
Section 4.06. Continued Existence................................... 17
Section 4.07. Taxes ................................................ 17
ii
<PAGE> 6
Page
Section 4.08. Maintenance of Properties............................... 17
Section 4.09. Insurance............................................... 18
Section 4.10. Investment Company Act.................................. 18
Section 4.11. Change of Control....................................... 18
Section 4.12. Limitation in Ranking of Future Indebtedness............ 20
ARTICLE 5
Successors
Section 5.01. When the Company May Merge, etc......................... 20
Section 5.02. Successor Corporation Substituted....................... 21
Section 5.03. Purchase Option on Change of Control.................... 21
ARTICLE 6
Defaults And Remedies
Section 6.01. Events of Default....................................... 21
Section 6.02. Acceleration............................................ 23
Section 6.03. Other Remedies.......................................... 24
Section 6.04. Waiver of Past Defaults................................. 24
Section 6.05. Control by Majority..................................... 24
Section 6.06. Limitation on Suits..................................... 24
Section 6.07. Rights of Holders to Receive Payment
[and to Convert Securities]........................... 25
Section 6.08. Collection Suit by Trustee.............................. 25
Section 6.09. Trustee May File Proofs of Claim........................ 25
Section 6.10. Priorities.............................................. 26
Section 6.11. Undertaking for Costs................................... 26
ARTICLE 7
The Trustee
Section 7.01. Duties of the Trustee................................... 27
Section 7.02. Rights of the Trustee................................... 28
Section 7.03. Individual Rights of the Trustee........................ 28
Section 7.04. Trustee's Disclaimer.................................... 29
Section 7.05. Notice of Defaults...................................... 29
Section 7.06. Reports by the Trustee to Holders....................... 29
Section 7.07. Compensation and Indemnity.............................. 29
Section 7.08. Replacement of the Trustee.............................. 30
iii
<PAGE> 7
Page
Section 7.09. Successor Trustee by Merger, etc........................ 31
Section 7.10. Eligibility; Disqualification........................... 32
Section 7.11. Preferential Collection of Claims Against Company....... 32
ARTICLE 8
Satisfaction And Discharge Of Indenture
Section 8.01. Termination of Company's Obligations.................... 32
Section 8.02. Application of Trust Money.............................. 35
Section 8.03. Repayment to Company.................................... 35
Section 8.04. Reinstatement........................................... 35
ARTICLE 9
Amendments
Section 9.01. Without the Consent of Holders.......................... 36
Section 9.02. With the Consent of Holders............................. 37
Section 9.03. Compliance with the Trust Indenture Act................. 38
Section 9.04. Revocation and Effect of Consents....................... 38
Section 9.05. Notation on or Exchange of Securities................... 39
Section 9.06. The Trustee Protected................................... 39
ARTICLE 10
General Provisions
Section 10.01. Trust Indenture Act Controls............................ 39
Section 10.02. Notices................................................. 39
Section 10.03. Communication by Holders with Other Holders............. 40
Section 10.04. Certificate and Opinion as to Conditions Precedent...... 40
Section 10.05. Statements Required in Certificate or Opinion........... 40
Section 10.06. Rules by Trustee and Agents............................. 41
Section 10.07. Legal Holidays; Business Days........................... 41
Section 10.08. No Recourse Against Others.............................. 41
Section 10.09. Counterparts............................................ 41
Section 10.10. Other Provisions........................................ 41
Section 10.11. Governing Law........................................... 42
Section 10.12. No Adverse Interpretation of Other Agreements........... 43
Section 10.13. Successors.............................................. 43
Section 10.14. Severability............................................ 43
Section 10.15. Table of Contents, Headings, Etc........................ 43
iv
<PAGE> 8
Page
ARTICLE 11
Subordination
Section 11.01. Agreement to Subordinate................................ 43
Section 11.02. Certain Definitions..................................... 44
Section 11.03. Liquidation; Dissolution; Bankruptcy.................... 44
Section 11.04. Default on Senior Indebtedness.......................... 45
Section 11.05. Acceleration of Securities.............................. 45
Section 11.06. When Distributions Must Be Paid Over.................... 46
Section 11.07. Notice by the Company................................... 46
Section 11.08. Subrogation............................................. 46
Section 11.09. Relative Rights......................................... 47
Section 11.10. Subordination May Not Be Impaired by the Company........ 47
Section 11.11. Distribution or Notice to the Representative............ 47
Section 11.12. Rights of the Trustee and Paying Agent.................. 47
Section 11.13. No Fiduciary Duty to Holders of Senior Indebtedness..... 49
[ARTICLE 12
Conversion
Section 12.01. Conversion Privilege.................................... 49
Section 12.02. Conversion Procedure.................................... 50
Section 12.03. Fractional Shares....................................... 50
Section 12.04. Taxes on Conversion..................................... 51
Section 12.05. Company to Provide Stock................................ 51
Section 12.06. Adjustment for Change in Capital Stock.................. 51
Section 12.07. Adjustment for Rights Issue............................. 52
Section 12.08. Adjustment for Other Distributions...................... 53
Section 12.09. Adjustment for [Preferred] [Common] Stock Issue......... 54
Section 12.10. Adjustment for Convertible Securities Issue............. 55
Section 12.10A. Special Provision Regarding Preferred Stock............. 56
Section 12.11. Current Market Price.................................... 57
Section 12.12. Consideration Received.................................. 57
Section 12.13. When Adjustment May Be Deferred......................... 58
Section 12.14. When No Adjustment Required............................. 58
Section 12.15. Notice of Adjustment.................................... 59
Section 12.16. Voluntary Reduction..................................... 59
Section 12.17. Notice of Certain Transactions.......................... 59
Section 12.18. Reorganization of Company............................... 60
Section 12.19. Company Determination Final............................. 60
Section 12.20. Trustee's Disclaimer.................................... 60]
SIGNATURES ........................................................ 61
EXHIBIT A FORM OF SECURITY...................................... A-1
v
<PAGE> 9
This Indenture, dated as of ________, 199_, is between Del Webb Corporation,
a Delaware corporation (the "Company"), and [Bank of Montreal Trust Company]
(the "Trustee").
The Company has duly authorized the issuance of its ___% [Convertible]
Senior Subordinated [Debentures] [Notes] (the "Securities") and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture. Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Securities.
ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (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, by agreement or otherwise.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee of the Board of Directors.
"capital stock" means any and all shares, interests, participations or other
equivalents (however designated) of corporate stock.
"Change of Control" means any of the following: (i) all or substantially all
of the Company's assets are sold as an entirety to any person or related group
of persons or the Company engages in any merger, consolidation, sale of capital
stock, sale of beneficial ownership interests or any other transactions with any
other person or related group of persons, with the effect that after such
transactions the shareholders of the Company immediately prior to such
transactions own, directly or indirectly, in the aggregate less than 50% of the
total voting power entitled to vote in the election (a) of directors of the
Company, if the Company is the surviving entity, or (b) of directors, managers
or trustees (1) of such other person, if the Company is not the surviving
entity, or (2) of such other person that
1
<PAGE> 10
purchases all or substantially all of the Company's assets; (ii) any person or
related group of persons acquires more than 50% of the total voting power
entitled to vote for directors of the Company; or (iii) any person or related
group of persons acquires more than 50% of the total voting power entitled to
vote for directors, managers or trustees (a) of such other person surviving the
transaction or (b) of such other person that purchases all or substantially all
of the Company's assets.
"Company" means the party named as such above until a successor replaces it
in accordance with Article 5 and thereafter means the successor.
"Consolidated Net Earnings" with respect to any person means, for any
period, the aggregate of the Net Earnings of such person and its subsidiaries
for such period, on a consolidated basis, determined in accordance with
generally accepted accounting principles consistently applied; provided that the
Net Earnings of any person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition shall be excluded. "Net
Earnings" of any person for any period shall mean the net earnings (loss) of
such person for such period, determined in accordance with generally accepted
accounting principles consistently applied, (i) excluding (a) extraordinary
items recognized in such period, (b) any gain (but including any loss except as
reduced to the extent aggregate gains exceed aggregate losses, with gains in
excess of losses for one period being carried forward to subsequent periods and
back to prior periods for this purpose) realized upon the sale or other
disposition (including, without limitation, dispositions pursuant to leaseback
transactions) of any real property or equipment of such person which is not sold
or otherwise disposed of in the ordinary course of business and (c) any gain
(but including any loss except as reduced to the extent aggregate gains exceed
aggregate losses, with gains in excess of losses for one period being carried
forward to subsequent periods and back to prior periods for this purpose)
realized upon the sale or other disposition of any capital stock of such person
or a subsidiary of such person except when the sale of capital stock is in
substance the sale of the assets of the person whose capital stock is being
sold, provided that, with respect to (b) and (c) above, gains from sales of
developed or undeveloped real property (including without limitation developed
residential lots) from the Company's community, conventional housing and land
development businesses will be deemed ordinary course and (ii) excluding any
write-up in the carrying value of any asset made after ______________, provided
that the application of the equity method of accounting and the translation into
United States dollars of assets or liabilities in foreign currencies in
accordance with generally accepted accounting principles shall not be deemed to
involve any such write-up.
"Default" means any event which is, or after notice or passage of time would
be, an Event of Default.
2
<PAGE> 11
"Disqualified Stock" means any capital stock which, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
maturity date of the Securities.
"Equity Interests" means capital stock or warrants, options or other rights
to acquire capital stock (but excluding any debt security which is convertible
into, or exchangeable for, capital stock).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor statute.
"Holder" or "Securityholder" means a person in whose name a Security is
registered in the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Material Subsidiary" means (i) Del Webb Communities, Inc., (ii) Del
Webb California Corp. and (iii) any other subsidiary of the Company, if
any, named [in the final Indenture] [or] [in a supplemental indenture.]
"Officers' Certificate" means a certificate signed by two Officers, one of
whom must be the Chairman of the Board, the President, the Treasurer or an
Executive Vice President, Senior Vice President or other Vice President of the
Company.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"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 debt security, including the Securities, means the
principal of the security plus the premium, if any, on the security.
"redemption date" when used with respect to any of the Securities to be
redeemed, means the date fixed by the Company for such redemption pursuant to
this Indenture and the Securities.
"redemption price" when used with respect to any of the Securities to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and the Securities.
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"SEC" means the Securities and Exchange Commission.
"Securities" means the Securities described above issued under this
Indenture.
"subsidiary" of any specified person means (i) a corporation a majority of
whose capital stock with voting power, under ordinary circumstances, to elect
directors is at the time, directly or indirectly, owned by such person or by
such person and a subsidiary or subsidiaries of such person or (ii) any other
person (other than a corporation) in which such person or such person and a
subsidiary or subsidiaries of such person, directly or indirectly, at the date
of determination thereof has at least majority ownership interest or over which
it exercises control.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77-bbbb) as in effect on the date of execution of this
Indenture.
"Trustee" means the party named as such above until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter
means the successor.
"Trust Officer" means [the Chairman of the Board, the President or] any
[other] officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
SECTION 1.02. OTHER DEFINITIONS.
Defined
in
Term Section
"Bankruptcy Law"...................................... 6.01
"Business Day"........................................ 10.07
["Common Stock"........................................ 12.01]
["Conversion Agent..................................... 2.03]
"Custodian"........................................... 6.01
"Event of Default".................................... 6.01
"Indebtedness"........................................ 11.02
"Legal Holiday"....................................... 10.07
"Officer"............................................. 10.10
"Paying Agent"........................................ 2.03
["Preferred Stock"..................................... 12.01]
["Quoted Price"........................................ 12.03]
"Registrar"........................................... 2.03
"Representative"...................................... 11.02
"Restricted Payments"................................. 4.05
"Senior Indebtedness"................................. 11.02
"United States Government Obligations"................ 8.01
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SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder or Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee;
and
"obligor" on the Securities means the Company or any other
obligor on the Securities.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA have
the meanings so assigned to them.
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 generally accepted accounting
principles as in effect at the date hereof;
(3) references to "generally accepted accounting principles"
shall mean generally accepted accounting principles as in effect at the
date hereof;
(4) "or" is not exclusive;
(5) words in the singular include the plural, and in
the plural include the singular; and
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(6) the male, female and neuter genders include one
another.
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING.
The Securities and the Trustee's certificate of authentication relating
thereto shall be substantially in the form set forth in Exhibit A, which is part
of this Indenture, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, provided
that the Securities may be Global Securities and as such may be issued in either
registered or bearer form. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Company shall
approve the forms of the Securities and any notation, legend or endorsement on
them. Each Security shall be dated the date of its authentication.
The terms and provisions contained in the Securities shall constitute, and
are hereby expressly made, a part of this Indenture and, to the extent
applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds that office
at the time the Security is authenticated, the Security shall nevertheless be
valid.
A Security shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
Upon a written order of the Company signed by an Officer of the Company, the
Trustee shall authenticate Securities for original issue up to $________ in
aggregate principal amount. The aggregate principal amount of Securities
outstanding at any time may not exceed that amount except as provided in Section
2.07.
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The Securities shall be issuable only in registered form without coupons and
only in denominations of $1,000 or any integral multiple thereof.
The Trustee may appoint an authenticating agent acceptable to the Company 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 right as an Agent to deal with the Company or
an Affiliate.
SECTION 2.03 REGISTRAR AND PAYING AGENT.
The Company shall maintain or cause to be maintained in the Borough of
Manhattan, City of New York (the "New York Office"), State of New York, and in
such other locations as it shall determine: (i) an office or agency where
securities may be presented for registration of transfer or for exchange
("Registrar"); [and] (ii) an office or agency where Securities may be presented
for payment ("Paying Agent")[; and (iii) an office or agency where Securities
may be presented for conversion ("Conversion Agent")]. The Registrar shall keep
a register of the Securities and of their transfer and exchange. The Company may
appoint one or more co-registrars[, and] one or more additional paying agents
[and one or more additional conversion agents]. The term "Paying Agent" includes
any additional paying agent[; and the term "Conversion Agent" includes any
additional conversion agent]. The Company may change any Paying Agent,
Registrar[, or] co-registrar [or Conversion Agent] without prior notice. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture and shall enter into an appropriate agency agreement
with any Registrar, Paying Agent[, or] co-registrar [or Conversion Agent] not a
party to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company or any of its subsidiaries may
act as Paying Agent, Registrar[, or] co-registrar [or Conversion Agent]. If the
Company fails to appoint or maintain another entity as Registrar[, or] Paying
Agent[, or Conversion Agent], the Trustee shall act as such, and the Trustee
shall initially act as such. The Trustee shall cause to be maintained the New
York Office as long as it acts as Registrar[, or] Paying Agent [or Conversion
Agent].
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent (other than the Trustee, who
hereby so agrees), to agree in writing that the Paying Agent will hold in trust
for the benefit of Securityholders or the Trustee all money held by the Paying
Agent for the payment of principal or interest on the Securities, and will
notify the Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require
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a Paying Agent to pay all money held by it to the Trustee. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Company or a
subsidiary) shall have no further liability for the money. If the Company or a
subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Securityholders all money held by it as Paying
Agent.
SECTION 2.05. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably practicable
the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee on or before each 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
Securityholders.
SECTION 2.06. TRANSFER AND EXCHANGE.
Where Securities are presented to the Registrar or a co-registrar with a
request to register a transfer or to exchange them for an equal principal amount
of Securities of other denominations, the Registrar shall register the transfer
or make the exchange if its requirements for such transactions are met. To
permit registrations of transfers and exchanges, the Company shall issue and the
Trustee shall authenticate Securities at the Registrar's request. No service
charge shall be made for any registration of transfer or exchange (except as
otherwise expressly permitted herein), but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to Sections 2.10, 3.06[, or]
9.05 [or 12.02]).
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities during a period beginning at the opening of business 15 days
before the day of any selection of Securities for redemption under Section 3.02
and ending at the close of business on the day of selection, or (ii) to register
the transfer or exchange of any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
SECTION 2.07. REPLACEMENT SECURITIES.
If the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security if the Trustee's requirements are
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<PAGE> 17
met. If required by the Trustee or the Company as a condition of receiving a
replacement Security, the Holder must provide an indemnity bond sufficient, in
the judgment of both the Company and the Trustee, to fully protect the Company,
the Trustee, any Agent and any authenticating agent from any loss which any of
them may suffer if the Security is replaced. The Company may charge for its
expenses in replacing any Security.
Every replacement Security is an additional obligation of the Company.
SECTION 2.08. OUTSTANDING SECURITIES.
The Securities outstanding at any time are all the Securities properly
authenticated by the Trustee except for those canceled by the Trustee, those
delivered to it for cancellation, and those described in this Section as not
outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they 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 of the Company holds the Security.
SECTION 2.09. WHEN TREASURY SECURITIES DISREGARDED.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or an Affiliate of the Company shall be considered as though they
are not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Securities which the Trustee knows are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities. Temporary Securities
shall be substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities.
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SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Securities surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall dispose of canceled Securities as the Company directs, provided that the
Trustee shall not be required to destroy such canceled securities. The Company
may not issue new Securities to replace Securities that it has paid or that have
been delivered to the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company fails to make a payment of interest on the Securities, it
shall pay such defaulted interest plus any interest payable on the defaulted
interest in any lawful manner. It may pay such defaulted interest, plus any such
interest payable on it, to the persons who are Securityholders on a subsequent
special record date. The Company shall fix any such record date and payment
date. At least 15 days before any such record date, the Company shall mail to
Securityholders a notice that states the record date, payment date and amount of
such interest to be paid.
SECTION 2.13. CUSIP NUMBER.
The Company in issuing the Securities may use a "CUSIP" number, and if so,
such CUSIP number shall be included in notices of redemption or exchange as a
convenience to Holders; provided, however, 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. The Company will
promptly notify the Trustee of any change in the CUSIP number.
ARTICLE 3
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities pursuant to the optional
redemption provisions of paragraph 5 of the Securities, it shall notify the
Trustee of the redemption date and the principal amount of Securities to be
redeemed.
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The Company shall give each notice provided for in this Section at least 60
days before the redemption date (unless a shorter notice period shall be
satisfactory to the Trustee).
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the Trustee shall select
the Securities to be redeemed pro rata or by lot, if lawful, or if required by
another method that complies with the requirements of any exchange on which the
Securities are listed and that the Trustee considers fair and appropriate. The
Trustee shall make the selection not more than 75 days and not less than 45 days
before the redemption date from Securities outstanding not previously called for
redemption. The Trustee may select for redemption portions of the principal of
Securities that have denominations larger than $1,000. Securities and portions
of them it selects shall be in amounts of $1,000 or integral multiples of
$1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company promptly of the Securities or portions of
Securities to be called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
Except as provided in Section 4.11, at least 30 days but not more than 60
days before a redemption date, the Company shall mail a notice of redemption to
each Holder whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued;
(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;
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(6) the paragraph of the Securities pursuant to which the
Securities are being redeemed;
(7) the aggregate principal amount of Securities that are being
redeemed;
(8) the CUSIP number of the Securities (provided that
the disclaimer permitted by Section 2.13 may be made); [and]
(9) the name and address of the Paying Agent [and
Conversion Agent][.][;]
[(10) that Securities called for redemption may be
converted at any time before the close of business on the
redemption date;
(11) that Holders who want to convert Securities must
satisfy the requirements in paragraph 17 of the Securities; and
(12) the current conversion price.]
At the Company's request, the Trustee shall give notice of redemption in the
Company's name and at its expense.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities called for redemption become
due and payable on the redemption date at the price set forth in the Security.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before the redemption date, the Company shall deposit with the Trustee
or with the Paying Agent money in immediately available funds sufficient to pay
the redemption price of and accrued interest on all Securities to be redeemed on
that date. The Trustee or the Paying Agent shall return to the Company any money
not required for that purpose.
SECTION 3.06 SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Company a new Security equal in principal amount to the unredeemed portion of
the Security surrendered.
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[SECTION 3.07. MANDATORY REDEMPTION.
To the extent lawful, the Company shall redeem ___ percent of the [initial]
principal amount of the Securities [outstanding] as set forth in paragraph 5B of
the Securities, which amount shall be rounded to the next highest integral
multiple of $1,000, annually on each of the dates, upon the terms and subject to
the conditions set forth in paragraph 6 of the Securities.]
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the Securities on the
dates and in the manner provided in the Securities. Principal and interest shall
be considered paid on the date 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 all principal and interest then due; provided, however, that
money held by the Paying Agent for the benefit of holders of Senior Indebtedness
pursuant to the provisions of Article 11 hereof shall not be considered paid
within the meaning of this Section 4.01.
To the extent lawful, the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on (i)
overdue principal, at the rate borne by the Securities, compounded semiannually;
and (ii) overdue installments of interest (without regard to any applicable
grace period) at the same rate, compounded semiannually.
SECTION 4.02. SEC REPORTS.
The Company shall deliver to the Trustee, within 15 days after it files them
with the SEC, 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 SEC may
by rules and regulations prescribe) which the Company is required to file with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also
shall comply with the other provisions of TIA Section 314(a). The Company shall
timely comply with its reporting and filing obligations under the applicable
federal securities law.
If the Company is at any time not required to file annual or quarterly
reports pursuant to Section 13 or 15(d) of the Exchange Act, the Company will
file with the Trustee, within 15 days after the last date on which it would have
been required to make such a filing with the SEC, and will upon
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request of a Holder mail to that Holder (as soon as practical after receipt of
such request) at his or her address as it appears on the register of Securities
kept by the Registrar, audited annual financial statements prepared in
accordance with generally accepted accounting principles and unaudited quarterly
financial statements. Such financial statements shall be accompanied by a
Management's Discussion and Analysis of Financial Condition and Results of
Operations of the Company for the period reported upon in substantially the form
required under the rules and regulations of the SEC, or any successor form of
similar disclosure then required under the rules and regulations of the SEC.
SECTION 4.03. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company, an Officers' Certificate, one of the
signatories to which shall be the principal executive officer, principal
financial officer or principal accounting officer of the Company, stating that a
review of the activities of the Company and its subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has fully performed its
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms and conditions hereof (or, if a Default or Events of Default shall
have occurred, describing all such Defaults or Events of Default of which he or
she may have knowledge) and that to the best of his or her knowledge no event
has occurred and remains in existence by reason of which payments on account of
the principal of or interest, if any, on the Securities are prohibited.
The Company will, so long as any of the Securities are outstanding, deliver
to the Trustee, forthwith upon becoming aware of (i) any Default, Event of
Default or default in the performance of any term or condition in this Indenture
or (ii) any event of default under any other mortgage, indenture or instrument
as that term is used in Section 6.01(4), an Officers' Certificate specifying
such Default, Event of Default or default.
So long as not contrary to the then current recommendations of the American
Institute of Certified Public Accountants, at the time the Officers' Certificate
described in the second preceding paragraph is filed, the Company also will file
with the Trustee a letter or statement of the independent accountants who shall
have certified the financial statements of the Company for its preceding fiscal
year in connection with the annual report of the Company to its stockholders for
such year to the effect that, in making the examination necessary for
certification of such financial statements, nothing came to their attention that
would lead them to believe
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that the Company has violated any of the terms or conditions contained in this
Indenture, which Default remains uncured at the date of such letter or statement
or, if they shall have obtained knowledge of any such uncured Default,
specifying in such letter or statement such Default or Defaults and the nature
thereof, it being understood that such accountants shall not be liable directly
or indirectly for failure to obtain knowledge of any such Default or Defaults
and that their examination was not directed primarily toward obtaining knowledge
of such noncompliance.
SECTION 4.04. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain or cause to be maintained in the City of New York
an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency not maintained by the Trustee. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 10.10.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designation; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain or cause to be maintained an office or
agency in the City of New York for such purpose.
SECTION 4.05. RESTRICTIONS ON DIVIDENDS AND OTHER PAYMENTS.
The Company shall not, directly or indirectly:
(1) declare or pay any dividend on, or make any distribution to
the holders (as such) of, any shares of its capital stock (other than
dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Company (other than any such Equity Interests
owned by any subsidiary); or
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(3) permit any subsidiary to purchase, redeem or otherwise retire
for value any Equity Interests of the Company (other than any such
Equity Interests owned by any subsidiary) (such dividends,
distributions, purchases, redemptions or other acquisitions or
retirements referred to in clauses (1), (2) or (3) being collectively
referred to as "Restricted Payments"), if at the time of such Restricted
Payment:
(i) a Default or an Event of Default shall
have occurred and be continuing, or would occur as a
consequence thereof, or
(ii) if, upon giving effect to such Restricted Payment,
the aggregate amount expended (determined as set forth below) for
all such Restricted Payments subsequent to the date hereof, shall
exceed the sum of:
(a) a percentage of the aggregate Consolidated Net
Earnings of the Company (or, in the case such aggregate
shall be a loss, 100% of such loss) accrued during fiscal
quarters ending subsequent to a specified date, which
percentage and date will be set forth in a supplemental
indenture;
(b) the aggregate net proceeds, including cash, the
fair market value of property other than cash (as
determined by the Board of Directors as evidenced by a
Board resolution) and the amount of any Indebtedness
(including principal, premium and interest), received by
the Company from or in exchange for the issue or sale
(other than to a subsidiary), subsequent to the date
hereof, of capital stock of the Company (other than
Disqualified Stock), other than in connection with the
exchange of the Securities;
(c) the amount expended for the
purchase, redemption or other acquisition or
retirement for value of any preferred stock of
the Company; and
(d) [$_________] [or] [the amount set
forth in a supplemental indenture].
For purposes of any calculation pursuant to the preceding sentence which is
required to be made within 60 days after the declaration of a dividend by the
Company, such dividend shall be deemed to be paid at the date of
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declaration, and the subsequent payment of such dividend during such 60-day
period shall not be treated as an additional Restricted Payment. For purposes of
determining under clause (ii) above the amount expended for Restricted Payments,
cash distributed shall be valued at the face amount thereof and property other
than cash shall be valued at its fair market value as determined by the Board of
Directors as evidenced by a Board resolution.
Notwithstanding the foregoing, the provisions of this Section 4.05 will not
prevent: (i) the purchase of Securities by the Company; (ii) the payment of any
dividend within 60 days after the date of declaration when the payment complied
with the foregoing provisions on the date of declaration; (iii) the purchase,
redemption or any acquisition or retirement for value of the Preferred Stock;
(iv) the retirement of any shares of the Company's capital stock by exchange
for, or out of the proceeds of the substantially concurrent sale (other than to
a subsidiary) of, other shares of its capital stock (other than any Disqualified
Stock), and neither such retirement nor the proceeds of any such sale or
exchange, to the extent used for such retirement, shall be included in any
computation made under this Section 4.05; and (v) the purchase at a price of not
more than $.05 per right of any rights issued or issuable pursuant to any future
rights plan of the Company.
SECTION 4.06. CONTINUED EXISTENCE.
Subject to Article 5, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence as a
corporation and will refrain from taking any action that would cause its
existence as a corporation to cease, including without limitation any action
that would result in its liquidation, winding up or dissolution.
SECTION 4.07. TAXES.
The Company shall, and shall cause each of its Material Subsidiaries to, pay
prior to delinquency all taxes, assessments and governmental levies, except as
contested in good faith and by appropriate proceedings or where the failure to
do so would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
SECTION 4.08. MAINTENANCE OF PROPERTIES.
The Company shall, and shall cause each of its subsidiaries to, take
reasonable action to maintain in appropriate condition each of its principal
properties which in the judgment of management is essential to the business
operations of the Company and its subsidiaries, taken as a whole, and the loss
of which would have a material adverse effect on the financial condition of the
Company and its subsidiaries, taken as a whole. Nothing contained in this
Section 4.08 shall prevent or restrict the sale, abandonment
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or other disposition of any property which management shall deem advisable.
SECTION 4.09. INSURANCE.
The Company shall, and shall cause each of its subsidiaries to, take
reasonable action to maintain insurance, with financially sound and reputable
insurers, to the extent and against such hazards as may be deemed appropriate by
management (giving effect to self-insurance), on each of its principal
properties the loss of which, in the judgment of management, would have a
material adverse effect on the financial condition of the Company and its
subsidiaries, taken as a whole.
SECTION 4.10. INVESTMENT COMPANY ACT.
The Company shall not become an investment company subject to registration
under the Investment Company Act of 1940, as amended.
SECTION 4.11. CHANGE OF CONTROL.
Following the occurrence of any Change of Control, the Company shall offer
(a "Change of Control Offer") to purchase all outstanding Securities at a
purchase price equal to [101%] of the aggregate principal amount of the
Securities, plus accrued and unpaid interest to the date of purchase. The Change
of Control Offer shall be deemed to have commenced upon mailing of the notice
described in the next succeeding paragraph and shall terminate 20 Business Days
after its commencement, unless a longer offering period is required by law.
Promptly after the termination of the Change of Control Offer (the "Change of
Control Payment Date"), the Company shall purchase and mail or deliver payment
for all Securities tendered in response to the Change of Control Offer. If the
Change of Control Payment Date is on or after an interest payment record date
and on or before the related interest payment date, any accrued interest will be
paid to the person in whose name a Security is registered at the close of
business on such record date, and no additional interest will be payable to
Holders who tender Securities pursuant to the Change of Control Offer.
Within 30 days after any Change of Control, the Company (with notice to the
Trustee), or the Trustee upon reasonable notice and at the Company's request
(and at the expense of the Company), will mail or cause to be mailed to all
Holders on the date of the Change of Control a notice of the occurrence of such
Change of Control and of the Holders' rights arising as a result thereof. Such
notice will contain all instructions and materials necessary to enable Holders
to tender their Securities to the Company. Such notice, which shall govern the
terms of the Change of Control Offer, shall state:
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(1) that the Change of Control Offer is being made pursuant to
this Section 4.11 and the length of time the Change of Control Offer
will remain open;
(2) the purchase price and the Change of Control
Payment Date;
(3) that any Security not tendered will continue to
accrue interest;
(4) that any Security accepted for payment pursuant to the Change
of Control Offer shall cease to accrue interest on the Change of Control
Payment Date;
(5) that any Security accepted for payment pursuant to any Change
of Control Offer will be required to surrender the Security, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Security completed, to the Company, a depositary, if appointed by the
Company, or a Paying Agent at the address specified in the notice prior
to termination of the Change of Control Offer;
(6) that Holders will be entitled to withdraw their election if
the Company, depositary or Paying Agent, as the case may be, receives,
not later than the expiration of the Change of Control Offer, or such
longer period as may be required by law, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Security the Holder delivered for purchase and a statement that such
Holder is withdrawing his or her election to have the Security
purchased; and
(7) that Holders whose Securities are purchased only in part will
be issued Securities equal in principal amount to the unpurchased
portion of the Securities surrendered.
On or before a Change of Control Payment Date, the Company shall, to the
extent lawful, (i) if the Company appoints a depositary or Paying Agent, deposit
with such depositary or Paying Agent money sufficient to pay the purchase price
of all Securities tendered, (ii) deliver or cause the depositary or Paying Agent
to deliver to the Trustee Securities so tendered and (iii) deliver an Officers'
Certificate identifying the Securities accepted for payment by the Company in
accordance with the terms of this Section 4.11. The depositary, the Paying Agent
or the Company, as the case may be, shall promptly mail or deliver to each
tendering Holder an amount equal to the purchase price of the Securities
tendered by such Holder and accepted by the Company for purchase. The Company
will publicly announce the
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results of the Change of Control Offer on the Change of Control Payment Date.
Any Change of Control Offer will be conducted in compliance with applicable
tender offer rules, including Section 14(e) of the Exchange Act and Rule 14e-1
thereunder.*
SECTION 4.12. LIMITATION IN RANKING OF FUTURE INDEBTEDNESS.
The Company will not incur any Indebtedness which is subordinated by the
terms of the instrument creating such Indebtedness in right of payment to any
Senior Indebtedness of the Company and which is not expressly by the terms of
the instrument creating such Indebtedness made pari passu with, or subordinate
and junior in right of payment to, the Securities.
ARTICLE 5
SUCCESSORS
SECTION 5.01 WHEN THE COMPANY MAY MERGE, ETC.
The Company shall not consolidate or merge with or into, or sell, lease,
convey or otherwise dispose of all or substantially all of its assets to, any
person unless:
(1) the corporation formed by or surviving any such consolidation
or merger (if other than the Company), or to which such sale, lease,
conveyance or other disposition shall have been made, is a corporation
organized and existing under the laws of the United States, any state
thereof or the District of Columbia;
(2) the corporation formed by or surviving any such consolidation
or merger (if other than the Company), or to which such sale, lease,
conveyance or other disposition shall have been made, assumes by
supplemental indenture all the obligations of the Company under the
Securities and this Indenture; and
(3) immediately after the transaction no Default or
Event of Default exists.
- --------
* Additional substantive covenants may be added.
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The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in
accordance with Section 5.01, the successor entity formed by such consolidation
or into or with which the Company is merged or to which such sale, lease,
conveyance or other disposition 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 entity had been named as the Company
herein; provided, however, that the predecessor Company in the case of a sale,
lease, conveyance or other disposition shall not be released from the obligation
to pay the principal of and interest on the Securities.
SECTION 5.03. PURCHASE OPTION ON CHANGE OF CONTROL.
This Article 5 does not affect the obligations of the Company (including
without limitation any successor to the Company) under this Indenture.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" with respect to any Securities occurs if:
(1) the Company defaults in the payment of interest on any
Security 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 when the same becomes due and payable
at maturity, upon redemption or otherwise;
(3) the Company fails to comply with any of its other agreements
or covenants in, or provisions of, the Securities or this Indenture and
the Default continues for the period and after the notice specified
below;
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(4) an event of default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company
or any Material Subsidiary (or the payment of which is guaranteed by the
Company or a Material Subsidiary), whether such Indebtedness or
guarantee now exists or shall be created hereafter, other than
Indebtedness which is or will be non-recourse to the Company or a
Material Subsidiary, 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 expressed maturity 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 at
maturity or the maturity of which has been so accelerated, aggregates
[$_______] [the amount set forth in a supplemental indenture] or more;
provided, however, that if such event of default shall be remedied,
cured or waived, then the Event of Default hereunder by reason of such
event of default shall be deemed likewise to have been remedied, cured
or waived without further action by the Trustee or any of the
Securityholders; or
(5) a final judgment or final judgments for the payment of money
are entered by a court or courts of competent jurisdiction against the
Company or any Material Subsidiary which remains undischarged for a
period (during which execution shall not be effectively stayed) of 60
days, provided that the aggregate of all such judgments exceeds
[$__________] [the amount set forth in a supplemental indenture];
(6) the Company or any Material Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for
relief against it in an involuntary case,
(C) consents to the appointment of a Custodian
of it or for all or substantially all of its property,
(D) makes a general assignment for the benefit
of its creditors, or
(E) generally is unable to pay its debts as
the same become due;
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(7) a court of competent jurisdiction enters a judgment, order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Material Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any
Material Subsidiary or for all or substantially all of
their respective properties, or
(C) orders the liquidation of the Company or
any Material Subsidiary,
and the order or decree remains unstayed and in effect for 60
days.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar federal
or state Law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
A Default under clause (3) (other than Defaults under Section 4.05, 4.06[,
or] 5.01 [or, with respect to the right to convert Securities, Article XII],
which Defaults shall be Events of Default with the notice but without the
passage of time specified in this paragraph), (4) or (5) is not an Event of
Default until the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Securities notify the Company of the Default and the
Company does not cure the Default within 60 days after receipt of the notice.
The notice must specify the Default, demand that it be remedied and state that
the notice is a "Notice of Default."
SECTION 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default specified in clauses
(6) and (7) of Section 6.01) occurs and is continuing, the Trustee by notice to
the Company, or the Holders of at least 25% in principal amount of the then
outstanding Securities by notice to the Company and the Trustee, may declare the
unpaid principal of and accrued interest on all the Securities to be due and
payable. Upon such declaration the principal and interest shall be due and
payable immediately. If an Event of Default specified in clause (6) or (7) of
Section 6.01 occurs, such an amount shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder. The Holders of a majority in principal amount of the then
outstanding Securities by notice to the Trustee may rescind an acceleration and
its consequences, except nonpayment of principal or interest on the Securities,
if the rescission would not conflict with any judgment or decree.
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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 of or interest on the Securities or to enforce the performance of any
provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the
Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the then outstanding
Securities by notice to the Trustee may waive an existing Default or Event of
Default and its consequences except a continuing Default or Event of Default in
the payment of the principal of or interest on any Security. When a Default is
waived, it is cured and stops continuing.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the then outstanding
Securities may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, is unduly prejudicial to the rights of
other Securityholders or would involve the Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Securityholder may not pursue any remedy with respect to this Indenture or
the Securities unless:
(1) the Holder gives to the Trustee notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the then
outstanding Securities make a request to the Trustee to pursue the
remedy;
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(3) such Holder or Holders offer to the Trustee
indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Securities do not give the
Trustee a direction inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT [AND TO CONVERT
SECURITIES].
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal and interest on the
Security, on or after the respective due dates expressed in the Security[, to
convert the Security as and to the extent permitted by this Indenture and the
terms of the Security] or to bring suit for the enforcement of any such payment
[or of the right to convert the Security] on or after such respective dates,
shall not be impaired or affected without the consent of the Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(1) or (2) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount of principal and
interest remaining unpaid on the Securities and interest on overdue principal
and interest and such further amount as shall be sufficient to cover the costs
and, to the extent lawful, expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.09. 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 and the
Securityholders allowed in any judicial proceedings relative to the Company, its
creditors or its property. Nothing contained herein shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization,
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arrangement, adjustment or composition affecting the Securities or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, 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 Senior Indebtedness to the extent
required by Article 11;
Third: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably,
without preference or priority of any kind, according
to the amounts due and payable on the Securities for
principal and interest, respectively; and
Fourth: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders.
SECTION 6.11. 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 a
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 attorneys 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 does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07
or a suit by Holders of more than 10% in principal amount of the then
outstanding Securities.
ARTICLE 7
THE TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture and
covenants and agrees to perform the same, as herein expressed.
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SECTION 7.01. DUTIES OF THE TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of his or her 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
(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. However, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee 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:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section;
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(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.
(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.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
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(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 THE TRUSTEE.
(a) The Trustee may rely on 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 such a document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate, an Opinion of Counsel or both. 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.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) 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.
(e) The Trustee may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF THE TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or an Affiliate
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Sections 7.10 and
7.11.
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SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities, it shall not be accountable for the Company's use
of the proceeds from the Securities and it shall not be responsible for any
statement in the Indenture or any statement in the Securities other than its
authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default occurs and is continuing and if it is known to the Trustee, the
Trustee shall mail to each Securityholder a notice of the Default within 90 days
after it occurs. Except in the case of a Default in payment 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 Securityholders.
SECTION 7.06. REPORTS BY THE TRUSTEE TO HOLDERS.
Within 60 days after the reporting date stated in Section 10.10, the Trustee
shall mail to Securityholders a brief report dated as of such reporting date
that complies with TIA Section 313(a), if such report is required by TIA Section
313(a). The Trustee also shall comply with TIA Section 313(b)(2). The Trustee
shall also transmit by mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to Securityholders shall be
filed with the SEC and each stock exchange on which the Securities are listed.
The Company shall promptly notify the Trustee when the Securities are listed on
any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such compensation as
shall be agreed in writing between the Company and the Trustee for its services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses incurred by it.
Such expenses may include the reasonable compensation and out-of-pocket expenses
of the Trustee's agents and counsel.
The Company shall indemnify each of the Trustee and any successor Trustee
against any loss, damage, claims, liability or out-of-pocket expenses, including
taxes (other than taxes based on the income, revenues or receipts of the
Trustee) incurred by it in connection with the acceptance (with respect to legal
fees and other out-of-pocket expenses of the Trustee
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in connection with the acceptance of the trust or trusts hereunder, to the
extent provided in the writing provided for in this Section 7.07) or
administration of the trust or trusts hereunder, except as set forth in the next
paragraph. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. The Company shall defend the claim with counsel, who may
be outside counsel to the Company but shall in all events be reasonably
satisfactory to the Trustee, and the Trustee shall cooperate in the defense. In
addition, if the Company does not so defend the Trustee or if at any time the
counsel so selected is ethically prohibited from representing the Trustee
(whether because of a conflict of interest or the provisions of the TIA), then
the Trustee may retain one separate counsel and the Company shall pay the
reasonable fees and expenses of such separate counsel. The indemnification
herein extends to any settlement, provided that the Company will not be liable
for any settlement made without its consent, provided further that such consent
will not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through negligence or bad faith.
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, except that held in trust to pay principal and
interest on Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6) or (7) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section 7.07 shall survive the termination of this
Indenture.
SECTION 7.08. REPLACEMENT OF THE 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.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the then outstanding Securities may remove the
Trustee by so notifying the removed Trustee and the Company and may appoint a
successor Trustee with the Company's consent. The Company may remove the Trustee
if:
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(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a Custodian or public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the then outstanding Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the then outstanding Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to
the retiring Trustee and to the Company. Thereupon the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Securityholders. The
removed or retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in Section
7.07. Notwithstanding the replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee with respect to expenses and liabilities
incurred by it prior to such replacement.
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 business to, another corporation,
the resulting, surviving or transferee corporation without any further act shall
be the successor Trustee.
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SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the requirements of
TIA Section 310(a)(1). The Trustee shall always have a combined capital and
surplus as stated in Section 10.10. The Trustee is subject to TIA Section
310(b), including the optional provision permitted by the second sentence of TIA
Section 310(b)(9).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship set forth in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS.
(a) This Indenture shall cease to be of further effect (except that the
Company's obligations under Section 7.07 and 8.03 shall survive) when all
outstanding Securities theretofore authenticated and issued have been delivered
(other than destroyed, lost or stolen Securities that have been replaced or
paid) to the Trustee for cancellation and the Company has paid all sums payable
hereunder. In addition, the Company may elect to have either paragraph (b) or
paragraph (c) below be applied to the outstanding Securities upon compliance
with the conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option applicable
to this paragraph (b), the Company shall be deemed to have been released and
discharged from its obligations with respect to the outstanding Securities on
the date the conditions set forth below are satisfied ("legal defeasance"). For
this purpose, legal defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the outstanding
Securities, which shall thereafter be deemed to be "outstanding" only for the
purposes of the Sections of and matters under this Indenture referred to in (i)
and (ii) below, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following, which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of
outstanding Securities to receive solely from the trust fund described in
paragraph (d) below and as more fully set forth in such paragraph, payments in
respect of the principal of,
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premium, if any, and interest on such Securities when such payments are due,
(ii) the Company's obligations with respect to such Securities under Sections
2.06, 2.07 and 4.04, and, with respect to the Trustee, under Section 7.07, (iii)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and
(iv) this Section 8.01. Subject to compliance with this Section 8.01, the
Company may exercise its option under this paragraph (b) notwithstanding the
prior exercise of its option under paragraph (c) below with respect to the
Securities.
(c) Upon the Company's exercise under paragraph (a) of the option applicable
to this paragraph (c), the Company shall be released and discharged from its
obligations under any covenant contained in Article 5 and in Sections 4.02
through 4.12 with respect to the outstanding Securities on and after the date
the conditions set forth below are satisfied ("covenant defeasance"), and the
Securities shall thereafter be deemed to be not "outstanding" for the purpose of
any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the outstanding
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.01 but,
except as specified above, the remainder of this Indenture and such Securities
shall be unaffected thereby.
(d) The following shall be the conditions to the application of either
paragraph (b) or (c) above to the outstanding Securities:
(1) the Company has irrevocably deposited in trust with the
Trustee or, at the option of the Trustee, with a trustee, satisfactory
to the Trustee and the Company under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, money or
United States Government Obligations (defined below in this Section
8.01) sufficient to pay principal and interest on the Securities to
maturity and all other sums payable by it hereunder; provided that (i)
the trustee of the irrevocable trust shall have been irrevocably
instructed to pay such money or the proceeds of such United States
Government Obligations to the Trustee and (ii) the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such
United States Government Obligations to the payment of said principal
and interest with respect to the Securities;
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(2) the Company has delivered to the Trustee an Officers'
Certificate stating that (A) all conditions precedent provided for
relating to either the legal defeasance under paragraph (b) above or the
covenant defeasance under paragraph (c) above, as the case may be, have
been complied with and (B) if any other Indebtedness of the Company
shall then be outstanding or committed, such legal defeasance or
covenant defeasance will not violate the provisions of the agreements or
instruments evidencing such Indebtedness;
(3) no Default or Event of Default shall have
occurred and be continuing on the date of such deposit;
(4) such legal defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a Default or Event of Default
under, this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound;
(5) in the case of an election under paragraph (b) above, the
Company shall have delivered to the Trustee an Opinion of Counsel from
nationally recognized counsel acceptable to the Trustee stating that (x)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (y) since the date of this
Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that the Holders of the outstanding
Securities will not recognize income, gain or loss for federal income
tax purposes as a result of such legal defeasance and will be subject to
federal income tax on the same amount and in the same manner and at the
same time as would have been the case if such legal defeasance had not
occurred; and
(6) in the case of an election under paragraph (c) above, the
Company shall have delivered to the Trustee an Opinion of Counsel from
nationally recognized counsel acceptable to the Trustee (i) to the
effect that the Holders of the outstanding Securities will not recognize
income, gain or loss for federal income tax on the same amount and in
the same manner and at the same time as would have been the case if such
covenant defeasance had not occurred or (ii) that the Company has
received from, or there has been published by, the Internal Revenue
Service a ruling to the foregoing effect.
After such irrevocable deposit made pursuant to this Section 8.01 and
satisfaction of the other conditions set forth herein, the Trustee upon request
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shall acknowledge in writing the discharge of the Company's obligations under
this Indenture except for those surviving obligations specified above.
As used herein, "United States Government Obligations" means direct
obligations of the United States of America for the payment of which the full
faith and credit of the United States of America is pledged. In order to have
money available on a payment date to pay principal or interest on the
Securities, the United States Government Obligations shall be payable as to
principal or interest on or before such payment date in such amounts as will
provide the necessary money. United States Government Obligations shall not be
callable at the issuer's option.
SECTION 8.02. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money or United States Government
Obligations deposited with it pursuant to Section 8.01. It shall apply the
deposited money and the money from United States Government Obligations through
the Paying Agent and in accordance with this Indenture to the payment of
principal and interest on the Securities. Money and securities so held in trust
are not subject to Article 11.
SECTION 8.03. REPAYMENT TO COMPANY.
Subject to Section 8.01(d), the Trustee and the Paying Agent shall promptly
pay to the Company upon written request any excess money or securities held by
them at any time.
The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal or interest that
remains unclaimed for two years after the date upon which such payment shall
have become due; provided, however, that the Company shall have first caused
notice of such payment to the Company to be mailed to each Securityholder
entitled thereto no less than 30 days prior to such payment. After payment to
the Company, Securityholders entitled to the money must look to the Company for
payment as general creditors unless an applicable abandoned property law
designates another person.
SECTION 8.04. REINSTATEMENT.
If (i) the Trustee or Paying Agent is unable to apply any money in
accordance with Section 8.02 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application and (ii) the Holders of at least a majority in principal amount of
the then outstanding Securities so request by written notice to the Trustee, the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had
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occurred pursuant to Section 8.01 until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 8.02; provided,
however, that if the Company makes any payment of interest on or principal of
any Security following 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 held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT THE CONSENT OF HOLDERS.
The Company and the Trustee may amend this Indenture or the Securities
without notice to or the consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Section[s] 5.01 [and 12.18];
(3) to provide for uncertificated Securities in
addition to certificated Securities;
(4) to make any change that does not adversely affect
the legal rights hereunder of any Securityholder;
(5) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions as the Company and the
Trustee shall consider to be for the protection of the Securityholders,
and to make the occurrence, or the occurrence and continuance, of a
default in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all or any
of the several remedies provided in this Indenture as herein set forth;
provided that in respect of any such additional covenant, restriction,
condition or provision, such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such an Event of Default or may limit
the remedies available to the Trustee upon such an Event of Default or
may limit the right of the Securityholders to waive such an Event of
Default;
(6) to surrender any right or power herein conferred
upon the Company;
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(7) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of the Indenture under the TIA, or under any similar
federal statute hereafter enacted; or
(8) before any Securities are issued, to make any other change in
this Indenture not prohibited by the TIA.
SECTION 9.02. WITH THE CONSENT OF HOLDERS.
Subject to Section 6.07, the Company and the Trustee may amend this
Indenture or the Securities with the written consent of the Holders of at least
a majority in principal amount of the then outstanding Securities.
Subject to Sections 6.04 and 6.07, the Holders of a majority in principal
amount of the Securities then outstanding may also waive compliance in a
particular instance by the Company with any provision of this Indenture or the
Securities.
However, without the consent of each Securityholder affected, an amendment
or waiver under this Section may not:
(1) reduce the amount of Securities whose Holders
must consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment
of interest on any Security;
(3) reduce the principal of or change the fixed
maturity of any Security or alter the redemption provisions
with respect thereto;
(4) make any Security payable in money other than
that stated in the Security;
(5) make any change in Section 6.04, 6.07 or 9.02
(this sentence); [or]
(6) waive a default in the payment of the principal
of, or interest on, any Security [or any default under Article
12; or]
(7) make any change that adversely affects the right
to convert any Security].
To secure a consent of the Holders under this Section, it shall not be
necessary for the Holders to approve the particular form of any proposed
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amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment or waiver under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing the amendment
or waiver.
After the issuance of any Securities, an amendment under this Section or
under Section 9.01 may not make any change that adversely affects in any
material respect the rights under Article 11 of the holders of Senior
Indebtedness, unless such holders consent to the change.
SECTION 9.03. COMPLIANCE WITH THE TRUST INDENTURE ACT.
Every amendment to this Indenture or the Securities shall be set forth in a
supplemental indenture that complies with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it by a Holder
of a Security is a continuing consent by the Holder and every subsequent Holder
of a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the consent
as to his or her Security or portion of a Security if the Trustee receives the
notice of revocation before the date on which the Trustee receives an Officers'
Certificate certifying that the Holders of the requisite principal amount of
Securities have consented to the amendment or waiver.
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 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 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 consents from Holders of the principal amount of
Securities required hereunder for such amendment or waiver to be effective shall
have also been given and not revoked within such 90-day period.
After an amendment or waiver becomes effective it shall bind every
Securityholder, unless it is of the type described in any of clauses (1)
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through (7) of Section 9.02. In such case, the amendment or waiver shall bind
each Holder of a Security who has consented to it.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee may place an appropriate notation about an amendment or waiver
on any Security thereafter authenticated. The Company in exchange for all
Securities may issue and the Trustee shall authenticate new Securities that
reflect the amendment or waiver.
SECTION 9.06. THE TRUSTEE PROTECTED.
The Trustee shall sign all supplemental indentures, except that the Trustee
need not sign any supplemental indenture that adversely affects its rights. The
Company may not sign an amendment or supplement until the Board of Directors
approves it. The Trustee, subject to Sections 7.01 and 7.02, shall be entitled
to receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that any amendment, supplement or waiver is authorized or permitted by
this Indenture and complies with the provisions of this Article 9.
ARTICLE 10
GENERAL PROVISIONS
SECTION 10.01. 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
as in effect at the date hereof or, to the extent required by law, as amended
after the date hereof, the required provision shall control.
SECTION 10.02. NOTICES.
Any notice or communication by the Company or the Trustee to the other is
duly given if in writing and delivered in person or mailed by first-class mail
to the other's address stated in Section 10.10. The Company or the Trustee by
notice to the other may designate an additional or different address for
subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by first
class mail to his or her address shown on the register kept by the Registrar.
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.
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If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Securityholders, it shall
mail a copy to the Trustee and each Agent at the same time.
All other notices or communications shall be in writing.
SECTION 10.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 10.04. 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 stating that, in the opinion of the
Company, 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 stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of the Company, such person
has made such examination or investigation as is necessary to enable him
or her to express an informed opinion as
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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 the Company, such condition or covenant has been complied
with;
provided, however, that with respect to matters of fact an Opinion of Counsel
may rely on an Officers' Certificate.
SECTION 10.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar [, or] Paying Agent [or Conversion Agent] may
make reasonable rules and set reasonable requirements for its functions.
SECTION 10.07. LEGAL HOLIDAYS; BUSINESS DAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in the City of New York or in the city in which the principal
office of the Trustee is located are not required to be open, and a "Business
Day" is any day that is not a Legal Holiday. 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 10.08. NO RECOURSE AGAINST OTHERS.
No director, officer, employee or shareholder, as such, of the Company shall
have any liability for any obligations of the Company under the Securities or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the Securities.
SECTION 10.09. COUNTERPARTS.
This Indenture may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
SECTION 10.10. OTHER PROVISIONS.
"Officer" means Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, the Chief Accounting Officer,
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any Executive Vice President, Senior Vice President, any Vice President, the
Treasurer, any other Executive Officer, the Secretary, any Assistant Treasurer
or any Assistant Secretary of the Company.
The Company initially appoints the Trustee as Paying Agent, Registrar and
authenticating agent.
The first certificate pursuant to Section 4.03 shall be for the fiscal year
ending on the first June 30 following the issuance of Securities hereunder, but
in no event later than one year after the date hereof.
The reporting date for Section 7.06 is September 15 of each year. The first
reporting date is the first September 15 following the issuance of Securities
hereunder.
The Trustee shall always have a combined capital and surplus of at least
$10,000,000 as set forth in its most recent published annual report of
condition.
The Company's address is:
Del Webb Corporation
6001 24th Street
Phoenix, AZ 85016
Attention: General Counsel
The Trustee's address [for purposes of Sections 2.03 and 4.04] is:
[Bank of Montreal Trust Company
88 Pine Street, 19th Floor
New York, New York 10005
and for all other purposes hereunder is:
------------------------------------
------------------------------------
------------------------------------
Attn.: Corporate Trust Department.]
SECTION 10.11. GOVERNING LAW.
The internal laws of the State of New York shall govern this Indenture, the
Securities, and all disputes arising under or related to either of them, without
regard to the choice or conflicts of laws provisions thereof. If any action or
proceeding shall be brought by a Holder of any of the Securities or by the
Trustee in order to enforce any right or remedy under this Indenture
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or under the Securities, the Company hereby consents and will submit to the
jurisdiction of the courts of the State of New York sitting in the City of New
York or any federal court sitting in the City of New York. The Company hereby
agrees to accept service of process by notice given to it pursuant to the
provisions of Section 10.02.
SECTION 10.12. 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 other indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 10.13. 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 10.14. SEVERABILITY.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.15. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table 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.
ARTICLE 11
SUBORDINATION
SECTION 11.01. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Securityholder by accepting a Security agrees,
that the indebtedness evidenced by the Securities is subordinated in right of
payment, to the extent and in the manner provided in this Article, to the prior
payment in full of all Senior Indebtedness and that the subordination is for the
benefit of the holders of Senior Indebtedness.
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SECTION 11.02. CERTAIN DEFINITIONS.
"Indebtedness" of any person, means any indebtedness, contingent or
otherwise, in respect of borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such person or only to a portion
thereof), evidenced by bonds, notes, debentures or similar instruments or
letters of credit or representing the balance deferred and unpaid of the
purchase price of any property or interest therein (except any such balance that
constitutes a trade payable), all capitalized lease obligations and all direct
or indirect obligations which arise as a result of claims under or drawings
pursuant to surety, performance, completion or maintenance bonds.
"Representative" means the indenture trustee or other trustee, agent or
representative for an issue of Senior Indebtedness.
"Senior Indebtedness" means all Indebtedness (present or future) created,
incurred, assumed or guaranteed by the Company (and all renewals, extensions or
refundings thereof), unless the instrument under which such Indebtedness is
created, incurred, assumed or guaranteed provides that such Indebtedness is not
senior or superior in right of payment to the Securities. Notwithstanding
anything to the contrary in the foregoing, Senior Indebtedness shall not include
(i) any Indebtedness of the Company to any of its subsidiaries, (ii) any trade
payables of the Company or (iii) guarantees by the Company of Indebtedness (a)
outstanding at the date hereof or (b) which may be outstanding in the future,
except that Senior Indebtedness shall include any guarantees as may be listed in
a supplemental indenture and any other present and future guarantees that
provide by their terms that they constitute Senior Indebtedness.
SECTION 11.03. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property:
(1) holders of Senior Indebtedness shall be entitled to receive
payment in full in cash of the principal of and interest (including
interest accruing after the commencement of any such proceeding) to the
date of payment on the Senior Indebtedness before Securityholders shall
be entitled to receive any payment of principal of or interest on
Securities; and
(2) until the Senior Indebtedness is paid in full in cash, any
distribution to which Securityholders would be entitled but for this
Article shall be made to holders of Senior Indebtedness
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as their interests may appear, except that Securityholders may receive
securities that are subordinated to Senior Indebtedness to at least the
same extent as the Securities.
For purposes of this Article 11, a distribution may consist of cash,
securities or other property, by set-off or otherwise.
SECTION 11.04. DEFAULT ON SENIOR INDEBTEDNESS.
Upon the final maturity of any Senior Indebtedness by lapse of time,
acceleration or otherwise, all such Senior Indebtedness shall first be paid in
full, or such payment duly provided for in cash or in a manner satisfactory to
the holders of such Senior Indebtedness, before any payment is made by the
Company or any person acting on behalf of the Company on account of the
principal or interest of the Securities.
The Company may not pay principal of or interest on the Securities and may
not acquire any Securities for cash or property (other than capital stock of the
Company or other securities of the Company that are subordinated to Senior
Indebtedness to at least the same extent as the Securities) if:
(1) a default on Senior Indebtedness occurs and is continuing
that permits holders of such Senior Indebtedness to accelerate its
maturity, and
(2) the default is the subject of judicial proceedings or the
Company receives a notice of the default from a person who may give it
pursuant to Section 11.12, provided that, if the Company receives any
such notice, a subsequent notice received within nine months thereafter
shall not be effective for purposes of this Section.
The Company shall resume payments on the Securities and may acquire them
when:
(a) the default is cured or waived, or
(b) 180 days pass after the notice is given if the
default is not the subject of judicial proceedings,
if this Article otherwise permits the payment or acquisition at that
time.
SECTION 11.05. ACCELERATION OF SECURITIES.
If payment of the Securities is accelerated because of an Event of Default,
the Company shall promptly notify holders of Senior Indebtedness
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of the acceleration. The Company shall pay the Securities when 180 days pass
after the acceleration occurs if this Article permits the payment at that time;
provided, however, that if no Senior Indebtedness is outstanding at the time of
such acceleration, the Company shall pay the Securities in accordance with the
provisions of Article 6.
SECTION 11.06. WHEN DISTRIBUTIONS MUST BE PAID OVER.
In the event that the Company shall make any payment to the Trustee on
account of the principal or interest on the Securities at a time when such
payment is prohibited by Section 11.03 or 11.04, such payment shall be held by
the Trustee in trust for the benefit of, and shall forthwith be paid over and
delivered to, the holders of Senior Indebtedness (pro rata as to each of such
holders on the basis of the respective amounts of Senior Indebtedness held by
them) or their Representative under the indenture or other agreement (if any)
pursuant to which 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 accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
If a distribution is made to Securityholders that because of this Article
should not have been made to them, the Securityholders who receive the
distribution shall hold it in trust for holders of Senior Indebtedness and pay
it over to them as their interests may appear.
SECTION 11.07. NOTICE BY THE COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of any
facts known to the Company that would cause a payment of principal of or
interest on the Securities to violate this Article, but failure to give such
notice shall not affect the subordination of the Securities to the Senior
Indebtedness provided in this Article. Nothing in this Article shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 7.07.
SECTION 11.08. SUBROGATION.
After all Senior Indebtedness is paid in full and until the Securities are
paid in full, Securityholders shall be subrogated to the rights of holders of
Senior Indebtedness to receive distributions applicable to Senior Indebtedness
to the extent that distributions otherwise payable to the Securityholders have
been applied to the payment of Senior Indebtedness. A distribution made under
this Article to holders of Senior Indebtedness which otherwise would have been
made to Securityholders is not, as
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between the Company and Securityholders, a payment by the Company on Senior
Indebtedness.
SECTION 11.09. RELATIVE RIGHTS.
This Article defines the relative rights of Securityholders and holders of
Senior Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company and
Securityholders, the obligation of the Company, which is
absolute and unconditional, to pay principal of and interest
on the Securities in accordance with their terms;
(2) affect the relative rights of Securityholders and
creditors of the Company, other than holders of Senior
Indebtedness; or
(3) prevent the Trustee or any Securityholder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders of Senior Indebtedness to receive distributions
otherwise payable to Securityholders.
If the Company fails because of this Article to pay principal of or interest
on Security on the due date, the failure is still a Default or Event of Default.
SECTION 11.10. SUBORDINATION MAY NOT BE IMPAIRED BY THE COMPANY.
No right of any holder of Senior Indebtedness to enforce the subordination
of the indebtedness evidenced by the Securities shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
SECTION 11.11. DISTRIBUTION OR NOTICE TO THE REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness, the distribution may be made and the notice given to their
Representative.
SECTION 11.12. RIGHTS OF THE TRUSTEE AND PAYING AGENT.
Notwithstanding any provision of this Article 11 or any other provision of
this Indenture, the Trustee and Paying Agent shall not at any time be charged
with knowledge of the existence of any facts which would prohibit the making of
any payment to or by the Trustee or a Paying Agent or the
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taking of any other action (pursuant to this Article 11) by the Trustee or a
Paying Agent unless and until the Trustee or such Paying Agent, as the case may
be, shall have received at its office specified in Section 10.10 written notice
thereof from the Company, a Representative or a holder of Senior Indebtedness
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Sections 7.01 and 7.02, and such Paying Agent, shall be
entitled in all respects conclusively to assume that no such fact exists. The
Trustee or Paying Agent may continue to make payments on the Securities unless
it receives such a notice at least three business days prior to the date upon
which payment is due.
The Trustee shall be entitled to reasonably rely in good faith on the
delivery to it of a written notice by a person representing himself, herself or
itself to be a Representative or a holder of Senior Indebtedness to establish
that such notice has been given by a Representative or a holder of such Senior
Indebtedness. Only the Company, a Representative or a holder of Senior
Indebtedness that has no Representative may give the notice.
In the event that the Trustee determines in good faith that further evidence
is required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article 11, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, the extent to which such person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such person under this Article 11, and if such evidence is not furnished, the
Trustee may defer any payment which it may be required to make for the benefit
of such person pursuant to the terms of this Indenture pending judicial
determination as to the rights of such person to receive such payment.
Upon any payment or distribution of assets of the Company referred to in
this Article 11, the Trustee and the Holders of the Securities shall be entitled
to rely upon any order or decree entered by any court of competent jurisdiction
in which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, Custodian,
receiver, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the persons entitled to participate
in such payment or distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 11.
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<PAGE> 57
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights.
SECTION 11.13 NO FIDUCIARY DUTY TO HOLDERS OF SENIOR INDEBTEDNESS.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article 11, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee or Paying Agent. Neither the Trustee nor
the Paying Agent shall be deemed to owe any fiduciary duty to the holders of
such Senior Indebtedness and, subject to the provisions of Section 7.02, the
Trustee shall not be liable to any holder of such Senior Indebtedness if it
shall, in the absence of bad faith, pay over or deliver to holders of
Securities, the Company or any other person monies or assets to which any holder
of such Senior Indebtedness shall be entitled by virtue of this Article 11 or
otherwise.
[ARTICLE 12
CONVERSION
SECTION 12.01. CONVERSION PRIVILEGE.
For the purpose of this Article XII and paragraph 17 of the Securities,
["Common Stock" means the common stock of the Company as it exists on the date
of this Indenture or as it may be constituted from time to time.] [and]
["Preferred Stock" means the Series __ Preferred Stock of the Company].
A Holder of a Security may convert it into [Preferred] [Common] Stock at any
time during the period stated in paragraph 17 of the Securities. The number of
shares issuable upon conversion of a Security is determined as follows: (i)
divide the principal amount to be converted by the conversion price in effect on
the conversion date; then (ii) round the result to the nearest 1/100th of a
share.
The initial conversion price is stated in paragraph 17 of the Securities.
The conversion price is subject to adjustment.
A Holder may convert a portion of a Security if the portion is $1,000 or an
integral multiple of $1,000. Provisions of this Indenture that apply to
conversion of all of a Security also apply to conversion of a portion of it.
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<PAGE> 58
SECTION 12.02. CONVERSION PROCEDURE.
To convert a Security a Holder must satisfy the requirements in paragraph 17
of the Securities. The date on which the Holder satisfies all those requirements
is the conversion date. As soon as practical, the Company shall deliver through
the Conversion Agent a certificate for the number of full shares of [Preferred]
[Common] Stock issuable upon the conversion and a check for any fractional
share. The person in whose name the certificate is registered shall be treated
as a stockholder of record on and after the conversion date.
No payment or adjustment will be made for accrued interest on a converted
Security or dividends on any [Preferred] [Common] Stock issued. However,
interest will be paid on any interest payment date with respect to Securities
surrendered for conversion after a record date for the payment of interest to
the registered Holder on such record date.
If a Holder converts more than one Security at the same time, the number of
full shares issuable upon the conversion shall be based on the total principal
amount of the Securities converted.
Upon a surrender of a Security that is converted in part, the Company shall
issue and the Trustee shall authenticate for the Holder a new Security equal in
principal amount to the unconverted portion of the Security surrendered.
If the last day on which a Security may be converted is a Legal Holiday in a
place where a Conversion Agent is located, the Security may be surrendered to
that Conversion Agent on the next succeeding day that is not a Legal Holiday.
SECTION 12.03. FRACTIONAL SHARES.
The Company will not issue a fractional share of [Preferred] [Common] Stock
upon conversion of a Security. Instead the Company will deliver its check for
the current market value of the fractional share. The current market value of a
fraction of a share is determined as follows: (i) multiply the current market
price of a full share by the fraction; then (ii) round the result to the nearest
cent.
The current market price of a share of [Preferred] [Common] Stock is the
Quoted Price of the [Preferred] [Common] Stock on the last trading day prior to
the conversion date. As used in Sections 12.03 and 12.11, the "Quoted Price" of
the Common Stock is the last reported sales price of the [Preferred] [Common]
Stock on the New York Stock Exchange or such other securities exchange on which
the [Preferred] [Common] Stock may
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<PAGE> 59
then be listed, or if the Common Stock is not listed on a securities exchange,
the last reported sales price of the [Preferred] [Common] Stock as reported by
NASDAQ, National Market System or if neither so reported or listed, the last
reported bid price of the [Preferred] [Common] Stock. In the absence of such a
quotation, the Company shall determine the current market price on the basis of
such quotations or other information as it considers appropriate.
SECTION 12.04. TAXES ON CONVERSION.
If a Holder of a Security converts it, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on the issue of shares
of [Preferred] [Common] Stock upon the conversion. However, the Holder shall pay
any such tax which is due because the shares are issued in a name other than the
Holder's name.
SECTION 12.05. COMPANY TO PROVIDE STOCK.
The Company has reserved and shall continue to reserve out of its authorized
but unissued [Preferred] [Common] Stock or its [Preferred] [Common] Stock held
in treasury enough shares of [Preferred] [Common] Stock to permit the conversion
of the Securities in full.
All shares of [Preferred] [Common] Stock which may be issued upon conversion
of the Securities shall be fully paid and non-assessable.
The Company will endeavor to comply with all securities laws regulating the
offer and delivery of shares of [Preferred] [Common] Stock upon conversion of
Securities and will endeavor to list such shares on each national securities
exchange on which the [Preferred] [Common] Stock is listed.
SECTION 12.06. ADJUSTMENT FOR CHANGE IN CAPITAL STOCK.
Subject to Section 12.18, if the Company:
(1) pays a dividend or makes a distribution on its [Preferred]
[Common] Stock in shares of its [Preferred] [Common] Stock;
(2) subdivides its outstanding shares of [Preferred] [Common]
Stock into a greater number of shares;
(3) combines its outstanding shares of [Preferred] [Common] Stock
into a smaller number of shares;
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<PAGE> 60
(4) makes a distribution on its [Preferred] [Common] Stock in
shares of its capital stock other than [Preferred] [Common] Stock; or
(5) issues by reclassification of its [Preferred] [Common] Stock
any shares of its capital stock;
then the conversion privilege and the conversion price in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of capital stock of the
Company which he would have owned immediately following such action if he had
converted the Security immediately prior to such action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon conversion of it may
receive shares of two or more classes of capital stock of the Company, the
Company shall determine the allocation of the adjusted conversion price between
the classes of capital stock. After such allocation, the conversion privilege
and the conversion price of each class of capital stock shall thereafter be
subject to adjustment on terms comparable to those applicable to [Preferred]
[Common] Stock in this Article.
SECTION 12.07. ADJUSTMENT FOR RIGHTS ISSUE.
If the Company distributes any rights or warrants [other than the Warrants
(the "Warrants") which are issued as part of unit consisting of Warrants and the
Securities] to all holders of its [Preferred] [Common] Stock entitling them for
a period expiring within 60 days after the record date mentioned below to
purchase shares of [Preferred] [Common] Stock at a price per share less than the
current market price per share on that record date, the conversion price shall
be adjusted in accordance with the formula set forth below and the paragraph
following such formula:
N x P
------
C' = C x O + M
------------------
O + N
where:
C' = the adjusted conversion price.
C = the current conversion price.
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<PAGE> 61
O = the number of shares of [Preferred] [Common] Stock outstanding
on the record date.
N = the number of additional shares of [Preferred] [Common] Stock
offered.
P = the offering price per share of the additional shares.
M = the current market price per share of [Preferred] [Common]
Stock on the record date.
The adjustment shall be made successively whenever any such rights become
exercisable or such warrants are issued and shall become effective immediately
after the rights become exercisable or after the record date for the
determination of stockholders entitled to receive the warrants. If at the end of
the period during which such warrants or rights are exercisable, not all
warrants or rights shall have been exercised, the conversion price shall be
immediately readjusted to what it would have been if "N" in the above formula
had been the number of shares actually issued.
SECTION 12.08. ADJUSTMENT FOR OTHER DISTRIBUTIONS.
If the Company distributes to all holders of its [Preferred] [Common] Stock
(as such) any of its assets or debt securities or any rights or warrants to
purchase assets, debt securities or other securities of the Company, the
conversion price shall be adjusted in accordance with the formula set forth
below and the paragraph following such formula:
C' = C x M - F
-----
M
where:
C' = the adjusted conversion price.
C = the current conversion price.
M = the current market price per share of [Preferred] [Common]
Stock on the record date mentioned below.
F = the fair market value on the record date of the assets,
securities, rights or warrants applicable to one share of
[Preferred] [Common] Stock. The Board of Directors shall
determine the fair market value.
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<PAGE> 62
The adjustment shall be made successively whenever any such rights become
exercisable or any such distribution (other than of such rights) is made and
shall become effective immediately after any such rights become exercisable (as
to rights) or after the record date for the determination of stockholders
entitled to receive the distribution (as to other distributions).
Notwithstanding the foregoing, no adjustment shall be made in the event that
rights become exercisable if and to the extent Holders of Securities have
received or are entitled to receive such rights upon conversion. In addition, to
the extent the rights or warrants expire unexercised, then the conversion price
shall be promptly readjusted to the conversion price which would then be in
effect had the adjustment been made based on the number of rights or warrants
exercised.
This Section does not apply to regular cash dividends or cash distributions
paid out of consolidated current earnings as shown on the books of the Company.
Also, this Section does not apply to rights or warrants referred to in Section
12.07, including the Warrants.
SECTION 12.09. ADJUSTMENT FOR [PREFERRED] [COMMON] STOCK ISSUE.
If the Company issues shares of [Preferred] [Common] Stock for a
consideration per share less than the current market price per share on the date
the Company fixes the offering price of such additional shares, the conversion
price shall be adjusted in accordance with the formula:
O + P
---
M
C' = C x -------
A
where:
C' = the adjusted conversion price.
C = the then current conversion price.
O = the number of shares outstanding immediately prior to the
issuance of such additional shares.
P = the aggregate consideration received for the issuance of such
additional shares.
M = the current market price per share on the date of issuance of
such additional shares.
A = the number of shares outstanding immediately after the issuance
of such additional shares.
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<PAGE> 63
The adjustment shall be made successively whenever any such issuance is
made, and shall become effective immediately after such issuance.
This Section does not apply to (i) any of the transactions described in
Sections 12.07, 12.08 and 12.10, (ii) the conversion of Securities, or the
conversion, exchange or exercise of other securities convertible or exchangeable
for [Preferred] [Common] Stock, (iii) [Preferred] [Common] Stock issued to the
Company's employees under bona fide employee plans adopted by the Board of
Directors and approved by the holders of [Preferred] [Common] Stock when
required by law, if such [Preferred] [Common] Stock would otherwise be covered
by this Section (but only to the extent that the aggregate number of shares
excluded hereby and issued after the date of this Indenture shall not exceed
[5%] of the [Preferred] [Common] Stock outstanding at the time of the adoption
of each such plan, exclusive of antidilution adjustments thereunder), (iv)
[Preferred] [Common] Stock issued to acquire, or in the acquisition of, all or
any portion of a business as a going concern or of developed, undeveloped or
mixed real property, in an arms-length transaction between the Company and an
unaffiliated third party, whether such acquisition shall be effected by purchase
of assets, exchange of securities, merger, consolidation or otherwise, (v)
[Preferred] [Common] Stock issued in a bona fide public offering pursuant to a
firm commitment underwriting or (vi) [Preferred] [Common] Stock issued on
exercise of rights if and to the extent Holders of Securities have received or
are entitled to receive such rights upon conversion.
SECTION 12.10. ADJUSTMENT FOR CONVERTIBLE SECURITIES ISSUE.
If the Company issues any securities convertible into or exchangeable or
exercisable for [Preferred] [Common] Stock (other than the Securities or
securities issued in transactions described in Sections 12.07 and 12.08) for a
consideration per share of [Preferred] [Common] Stock initially deliverable upon
conversion, exchange or exercise of such securities less than the current market
price per share on the date of issuance of such securities, the conversion price
shall be adjusted in accordance with this formula:
O + P
-
C' = C x M
-----
O + D
where:
C' = the adjusted conversion price.
C = the then current conversion price.
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<PAGE> 64
O = the number of shares outstanding immediately prior to the
issuance of such securities.
P = the aggregate consideration received for the issuance of such
securities (including as determined in Section 12.12(3)).
M = the current market price per share on the date of issuance of
such securities.
D = the maximum number of shares deliverable upon conversion or in
exchange for or upon exercise of such securities at the
initial conversion, exchange or exercise rate.
The adjustment shall be made successively whenever any such issuance is
made, and shall become effective immediately after such issuance. If all of the
[Preferred] [Common] Stock deliverable upon conversion, exchange or exercise of
such securities have not been issued when such securities are no longer
convertible, exchangeable or exercisable, 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 securities been made on the basis of
the actual number of shares of [Preferred] [Common] Stock issued upon
conversion, exchange or exercise of such securities.
This Section does not apply to (1) convertible securities issued to acquire,
or in the acquisition of, all or any portion of a business as a going concern or
of developed, undeveloped or mixed real property, in an arms-length transaction
between the Company and an unaffiliated third party, whether such acquisition
shall be effected by purchase of assets, exchange of securities, merger,
consolidation or otherwise, or (ii) convertible securities issued in a bona fide
public offering pursuant to a firm commitment underwriting.
SECTION 12.10A. SPECIAL PROVISION REGARDING PREFERRED STOCK.
In addition to the foregoing adjustments and without duplication, if (x)
prior to the exercise of a Security an event ("Event") occurs which, under the
Certificate of Designations with respect to the Preferred Stock, would have
required an adjustment in the number of share(s) of Common Stock into which the
shares of Preferred Stock acquired on conversion of the Securities would have
been convertible if such Security had previously been converted into Preferred
Stock (but such Preferred Stock acquired on conversion had not been converted
into Common Stock), then (y) after the Event, such share of Preferred Stock
shall, when acquired on conversion of the Security, be convertible into the same
number of share(s) of Common Stock into which it would have been convertible if
such Security had been converted into Preferred Stock (but such Preferred Stock
acquired on conversion had not been converted into Common Stock) prior to the
Event.
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<PAGE> 65
The adjustment required by the foregoing sentence shall be made each time there
is an Event, provided that no adjustment shall be made under this Section 12.10A
unless that adjustment results in a change of 1%, provided further that all
adjustments not made by virtue of the preceding "provided" clause shall be
carried forward and made when the aggregate of all such adjustments results in a
change of at least 1%.]*
SECTION 12.11. CURRENT MARKET PRICE.
In Sections 12.07, 12.08, 12.09 and 12.10, the current market price per
share of [Preferred] [Common] Stock on any date is the average of the Quoted
Prices (as defined in Section 12.03) of the [Preferred] [Common] Stock for 20
consecutive trading days commencing 30 trading days before the date in question.
In the absence of one or more such quotations, the Company shall determine the
current market price on the basis of such quotations or other information as it
considers appropriate.
SECTION 12.12. CONSIDERATION RECEIVED.
For purposes of any computation respecting consideration received pursuant
to Sections 12.09 and 12.10, the following shall apply:
(1) in the case of the issuance of shares of [Preferred] [Common]
Stock for cash, the consideration shall be the amount of such cash,
provided that in no case shall any deduction be made for any
commissions, discounts or, without limitation, other expenses incurred
by the Company for any underwriting of the issue or otherwise in
connection therewith,
(2) in the case of the issuance of shares of [Preferred] [Common]
Stock for a consideration in whole or in part other than cash, the
consideration other than cash shall be deemed to be the fair market
value thereof as determined in good faith by the Board of Directors
(irrespective of the accounting treatment thereof), whose determination
shall be conclusive, and described in a Board resolution which shall be
filed with the Trustee; and
(3) in the case of the issuance of securities convertible into or
exchangeable or exercisable for shares, the aggregate
________________
* This provision will be used, if at all, if the Securities are exercisable for
Preferred Stock which is convertible into Common Stock.
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<PAGE> 66
consideration received therefor shall be deemed to be the consideration
received by the Company for the issuance of such securities plus the
additional minimum consideration, if any, to be received by the Company
upon the conversion or exchange thereof (the consideration in each case
to be determined in the same manner as provided in clauses (1) and (2)
of this Section).
SECTION 12.13. WHEN ADJUSTMENT MAY BE DEFERRED.
No adjustment in the conversion price need be made unless the adjustment
would require an increase or decrease of at least 1% in the conversion price.
Any adjustments that are not made shall be carried forward and taken into
account in any subsequent adjustment.
All calculations under this Article shall be made to the nearest cent or to
the nearest 1/100th of a share, as the case may be.
SECTION 12.14. WHEN NO ADJUSTMENT REQUIRED.
No adjustment need be made for a transaction referred to in Sections 12.06,
12.07, 12.08, 12.09 or 12.10 if all Securityholders are entitled to participate
in the transaction on a basis and with notice that the Board of Directors
determines to be fair and appropriate in light of the basis and notice on which
holders of [Preferred] [Common] Stock participate in the transaction.
No adjustment need be made for rights to purchase [Preferred] [Common] Stock
pursuant to a Company plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or no par value of
the [Preferred] [Common] Stock.
To the extent the Securities become convertible into cash, no adjustment
need be made thereafter as to the cash. Interest will not accrue or be deemed to
accrue on the cash for this purpose.
In any case in which this Article 12 or the Securities shall require that an
adjustment in the conversion price be made effective as of a record date for a
specified event and notwithstanding anything to the contrary in this Article 12
of the Securities, the Company may elect to defer until the occurrence of such
event the issuing to the holder of any Security converted after such record
date, the [Preferred] [Common] Stock or other capital stock of the Company, if
any, issuable upon such conversion over and above the [Preferred] [Common] Stock
or other capital stock of the Company, if any, issuable upon such conversion on
the basis of the
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<PAGE> 67
conversion price in effect prior to such adjustment; provided, however, [that
the Company shall deliver to such holder a due bill or other appropriate
instrument evidencing, subject to the following proviso, such holder's right to
receive such additional shares upon the occurrence of the event requiring such
adjustment and, provided further,] to the extent such event does not occur, the
adjustment made in respect of such non-occurrence shall be retroactive and
affect each conversion security converted between such Record Date and the date
of such non-occurrence.
SECTION 12.15. NOTICE OF ADJUSTMENT.
Whenever the conversion price is adjusted, the Company shall promptly mail
to Securityholders a notice of the adjustment. The Company shall file with the
Trustee a certificate from the Company's independent public accountants briefly
stating the facts requiring the adjustment and the manner of computing it. The
certificate shall be conclusive evidence that the adjustment is correct, absent
manifest error.
SECTION 12.16. VOLUNTARY REDUCTION.
The Company from time to time may reduce the conversion price by any amount
for any period of time if the period is at least [20] days and if the reduction
is irrevocable during the period; provided that in no event may the conversion
price be less than the then par value of a share of [Preferred] [Common] Stock,
if any.
Whenever the conversion price is reduced, the Company shall mail to
Securityholders a notice of the reduction. The Company shall mail the notice at
least 15 days before the date the reduced conversion price takes effect. The
notice shall state the reduced conversion price and the period it will be in
effect.
A reduction of the conversion price does not change or adjust the conversion
price otherwise in effect for purposes of Sections 12.06, 12.07, 12.08, 12.09
and 12.10.
SECTION 12.17. NOTICE OF CERTAIN TRANSACTIONS.
If:
(1) the Company takes any action that would require an adjustment
in the conversion price pursuant to Sections 12.06, 12.07, 12.08, 12.09
or 12.10 and if the Company does not let Securityholders participate
pursuant to Section 12.14 [or which is referred to in Section 12.10A];
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<PAGE> 68
(2) the Company takes any action that would require a
supplemental indenture pursuant to Section 12.18; or
(3) there is a liquidation or dissolution of the
Company,
the Company shall mail to Securityholders and to the Trustee a notice stating
the proposed record date, proposed effective date or other relevant proposed
date of the act in question. The Company shall mail the notice at least [15]
days before such date. Failure to mail the notice or any defect in it shall not
affect the validity of the transaction.
SECTION 12.18. REORGANIZATION OF COMPANY.
If the Company is a party to a transaction subject to Section 5.01, or a
transaction which reclassifies or changes its outstanding [Preferred] [Common]
Stock, upon consummation of such transaction the Securities shall automatically
become convertible into the kind and amount of securities, cash or other assets
which the Holder of a Security would have owned immediately after the
transaction if the Holder had converted the Security immediately before the
effective date of the transaction. Concurrently with the consummation of such
transaction, the person obligated to issue securities or deliver cash or other
assets upon conversion of the Securities shall enter into a supplemental
indenture so providing and further providing for adjustments which shall be as
nearly equivalent as may be practical to the adjustments provided for in this
Article. The Company or, if applicable, the other person shall mail to
Securityholders a notice describing the transaction and supplemental indenture.
If securities deliverable upon conversion of Securities, as provided above,
are themselves convertible into the securities of an Affiliate of the other
person, that Affiliate shall join in the supplemental indenture and the
supplemental indenture shall so provide.
If this Section applies, Section 12.06 does not apply.
SECTION 12.19. COMPANY DETERMINATION FINAL.
Any determination that the Company or the Board of Directors must make
pursuant to Section 12.03, 12.06, 12.08, 12.09, 12.10, 12.11, 12.12 or 12.14 is
conclusive.
SECTION 12.20. TRUSTEE'S DISCLAIMER.
The Trustee has no duty to determine when an adjustment under this Article
should be made, how it should be made or what it should be. The Trustee has no
duty to determine whether any provisions of a supplemental
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<PAGE> 69
indenture under Section 12.18 are correct. The Trustee makes no representation
as to the validity or value of any securities or assets issued upon conversion
of Securities. The Trustee shall not be responsible for the Company's failure to
comply with this Article. Each Conversion Agent other than the Company shall
have the same protection under this Section as the Trustee.]
The parties have caused this Indenture to be duly executed and attested, all
as of the date first above written, in _____________, _____________, signifying
their agreements contained in this Indenture.
SIGNATURES
DEL WEBB CORPORATION
By:___________________________
Attest:
- -------------------------
[Bank of Montreal Trust Company,]
as Trustee
-----------------------------
Attest:
- -------------------------
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<PAGE> 70
EXHIBIT A
(FACE OF SECURITY)*
No. $ CUSIP No. ____
DEL WEBB CORPORATION
promises to pay to
or registered assigns,
the principal sum of Dollars on ________________________
_____% [CONVERTIBLE] SENIOR SUBORDINATED [DEBENTURE] [NOTE]
DUE ________
Interest Payment Dates: _______________ and _______________
Record Dates: _______________ and _______________
This is one of the Securities Dated:
mentioned in the Indenture
referred to below:
[Bank of Montreal Trust Company,] DEL WEBB CORPORATION
as Trustee
By:_________________________ By:_________________________
Authorized Signatory
By:_________________________
____________________________
* Global securities will have any appropriate modifications and will bear
essentially the following legend:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
REFERRED TO BELOW AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED
OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER
THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE
REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION
OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE
A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.
A-1
<PAGE> 71
(BACK OF SECURITY)
________________
___% [Convertible] Senior Subordinated [Debenture] [Note]
Due __________
1. Interest. Del Webb Corporation, 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. 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 _________, 199_. 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 registered holders of
Securities at the close of business on the record date for the next interest
payment date even though Securities are canceled after the record date and on or
before 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. However, the Company may pay principal and
interest by check payable in such money. It may mail an interest check to a
holder's registered address.
3. Paying Agent [, and] Registrar [and Conversion Agent]. [Bank of Montreal
Trust Company] (the "Trustee") will act as Paying Agent [,and] Registrar [and
Conversion Agent]. The Company may change the Paying Agent, Registrar or
co-registrar without prior notice. The Company or any of its subsidiaries may
act in any such capacity.
4. Indenture. The Company issued the Securities under an Indenture dated as
of ___________, 199_ [as modified by a Supplemental Indenture dated as of ______
__________________, 199_] ([collectively, ]the "Indenture") between the Company
and the Trustee. 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 Sections 77aaa-77bbbb) as in effect on
the date of the Indenture. The Securities are subject to, and qualified by, all
such terms, certain of which are summarized hereon, and Securityholders are
referred to the Indenture and such Act for a statement of such terms. The
Securities are unsecured general obligations of the Company limited to
$__________ in aggregate principal amount [of which $___________ may only be
issued as 'Additional Securities' on or before the 30th day after the date of,
and pursuant to the terms of, that certain Underwriting Agreement dated
_________, 199_ by and between the Company and _________________. The Company
will not originally issue any Additional
A-2
<PAGE> 72
Securities except pursuant to the Underwriting Agreement. If no Additional
Securities are issued the Securities will be limited to $____________ in
aggregate principal amount.] Capitalized terms not defined below have the same
meaning as is given to them in the Indenture.
5[A]. Optional Redemption. The Company may not redeem the Securities prior
to ____________. Thereafter, the Company may redeem all the Securities at any
time or some of them from time to time at the redemption prices (expressed in
percentages of principal amount) set forth below plus accrued interest to the
redemption date, if redeemed during the 12-month period beginning _________ of
the years starting with _____ indicated below.
Year Percentage Year Percentage
and
thereafter 100.000
[5B. Mandatory Redemption. The Company will redeem ___% of the [initial]
principal amount of Securities [(including any Additional Securities)] [then
outstanding] on ____________, and on each _________ thereafter through
___________ at a redemption price of 100% of principal amount, plus accrued
interest to the redemption date. The Company may reduce the principal amount of
Securities to be redeemed pursuant to this paragraph 6 by subtracting 100% of
the principal amount (excluding premium) of any Securities that [Securityholders
have converted,] the Company has delivered to the Trustee for cancellation or
the Company has previously purchased, redeemed, retired or acquired other than
pursuant to this paragraph 6, provided that the Company may so subtract the same
Security only once.]
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 or her registered address. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. In the event of a redemption of less than all of the
Securities, the Securities will be chosen for redemption by the Trustee,
generally pro rata or by lot. On and after the redemption date interest ceases
to accrue on Securities or portions of them called for redemption.
If this Security is redeemed subsequent to a record date with respect to any
interest payment
A-3
<PAGE> 73
date specified above and on or prior to such interest payment date, then any
accrued interest will be paid to the person in whose name this Security is
registered at the close of business on such record date.
7. Change of Control. Upon a Change of Control, the Company shall make a
Change of Control Offer to purchase all outstanding securities at a price equal
to 101% of the aggregate principal amount of the Securities, plus accrued and
unpaid interest to the date of purchase. To accept the Change of Control Offer,
the Holder hereof must comply with the terms thereof, including surrendering
this Security, with the "Option of Holder to Elect Purchase" portion hereof
completed, to the Company, a depositary, if appointed by the Company, or a
Paying Agent, at the address specified in the notice of the Change of Control
Offer mailed to Holders as provided in the Indenture, prior to termination of
the Change of Control Offer.
8. Subordination. To the extent set forth in Article 11 of the Indenture,
the Securities are subordinated to Senior Indebtedness, which generally is any
Indebtedness outstanding on the date of the Indenture or Indebtedness thereafter
created, incurred, assumed or guaranteed by the Company and all renewals,
extensions and refundings thereof except Indebtedness that expressly provides
that it is not senior to or superior in right of payment to the Securities.
Senior Indebtedness does not include Indebtedness of the Company to any of its
subsidiaries, trade payables of the Company and certain Indebtedness of others
guaranteed by the Company. Indebtedness, for any specified person, is any
indebtedness, contingent or otherwise, in respect of borrowed money (whether or
not the recourse of the lender is to the whole of the assets of the person or
only to a portion thereof) evidenced by bonds, notes, debentures or similar
instruments or letters of credit or representing the balance deferred and unpaid
of the purchase price of any property or interest therein (except any such
balance that constitutes a trade payable), all capitalized leases and all direct
or indirect obligations which arise as a result of claims under or drawings
pursuant to surety, performance, completion or maintenance bonds. To the extent
provided in the Indenture, Senior Indebtedness must be paid before the
Securities may be paid. The Company agrees, and each Securityholder by accepting
a Security agrees, to the subordination and authorizes the Trustee to give it
effect.
9. Denominations, Transfer, Exchange. The Securities are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Securities may be registered and Securities may be exchanged as
provided in the Indenture. As a condition of transfer, 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 exchange or register the transfer of any
Security or portion of a Security selected for redemption. Also, it need not
exchange or register the transfer of any Securities for a period of 15 days
before a selection of Securities to be redeemed.
A-4
<PAGE> 74
10. Persons Deemed Owners. The registered holder of a Security may be
treated as its owner for all purposes.
11. Amendments and Waivers. Subject to certain exceptions, the Indenture or
the Securities may be amended with the consent of the holders of at least a
majority in principal amount of the then outstanding Securities and any existing
default may be waived with the consent of the holders of a majority in principal
amount of the then outstanding Securities. Without the consent of any
Securityholder, the Indenture or the Securities may be amended: to cure any
ambiguity, defect or inconsistency; to provide for assumption of the Company's
obligations to Securityholders; to make any change that does not adversely
affect the rights of any Securityholder; to add to the covenants of the Company,
for the benefit of the Securityholders; or to modify the Indenture to effect its
qualification under the TIA.
12. Defaults and Remedies. An Event of Default is: default for 30 days in
payment of interest on the Securities; default in payment of principal of and
premium, if any, on the Securities; failure by the Company for 60 days after
notice to it to comply with any of its other agreements in the Indenture or the
Securities or, in the case of failure by the Company to maintain its corporate
existence or to comply with the restrictions on payments of dividends and other
distributions, the restrictions on consolidation, merger or transfer or lease of
substantially all its assets [or the provisions regarding conversion of the
Securities], with such notice but without such passage of time; certain defaults
under and accelerations prior to maturity of certain Indebtedness; certain final
judgments which remain undischarged; and certain events of bankruptcy or
insolvency. If an Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the then outstanding Securities
may declare all the Securities to be due and payable immediately, except that in
the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Securities become due and payable without further
action or notice. Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, holders of a majority in principal amount of the
then outstanding Securities may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Securityholders notice of any continuing
default (except a default in payment of principal or interest) if it determines
that withholding notice is in their interests. The Company must furnish an
annual compliance certificate to the Trustee.
13. Trustee Dealings with the Company. [Bank of Montreal Trust Company], the
Trustee under the Indenture, or any of its Affiliates, in their individual or
any other capacities, may make or continue loans to or guaranteed by, accept
deposits from and perform services for the Company or its Affiliates and may
otherwise deal with the Company or its Affiliates as if [Bank of Montreal Trust
Company] were not Trustee.
A-5
<PAGE> 75
14. No Recourse Against Others. No director, officer, employee or
stockholder, as such, of the Company shall have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
Securities.
15. Authentication. This Security shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN CO = tenants in common, TEN ENT =
tenants by the entireties, JT TEN = joint tenants with right 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, which has in it the text of this
Security in larger type. Requests may be made to: Treasurer, Del Webb
Corporation, 2231 East Camelback Road, P.O. Box 29040, Phoenix, AZ 85016.
[17. Conversion. A holder of a Security may convert it into [Preferred]
[Common] Stock of the Company at any time before the close of business on
________,_____. If the Security is called for redemption, the holder may convert
it at any time before the close of business on the redemption date (unless the
Company shall default in payment due upon redemption thereof). The initial
conversion price of $__ per share is subject to adjustment in certain events. 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. On conversion, no payment or adjustment for interest will be
made. However, interest will be paid on any interest payment date with respect
to Securities surrendered for conversion after a record date for the payment of
interest to the registered holder on such record date. The Company will deliver
a check for any fractional share.
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 a Conversion
Agent, (3) furnish appropriate endorsements and transfer documents if required
by the Registrar or Conversion Agent and (4) pay any transfer or similar tax if
required by the Indenture or applicable law. A holder may convert a portion of a
Security if the portion is $1,000 or an integral multiple of $1,000.
The conversion price is subject to adjustment as set forth in the Indenture
in certain events. No adjustment in the conversion price will be required unless
such adjustment would require a change of at least 1% in the price then in
effect; but any adjustment that would otherwise be required to be made shall be
carried forward and taken into account in any subsequent adjustment.
A-6
<PAGE> 76
The Company from time to time may voluntarily reduce the conversion price
for a period of time.
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 Securities automatically
become convertible into the kind and amount of securities, cash or other assets
which the Holder of a Security would have owned immediately after such
transaction if the Holder had converted the Security immediately before the
effective date of the transaction.]
A-7
<PAGE> 77
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
- --------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint:
- --------------------------------------------------------------------------
agent to transfer this Security on the books of the Company. The agent
may substitute another to act for him or her.
Date:
- --------------------------------------------------------------------------
Signature Guarantee:
[CONVERSION NOTICE
To convert this Security into [Preferred] [Common] Stock of the Company, check
the box: [ ]
To convert only part of this Security, state the amount:
$-------------------------------------------------------------------------
If you want the stock certificate made out in another person's name, fill in the
form below:
- --------------------------------------------------------------------------
(insert other person's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
(Print or type other person's name, address and zip code.)
Your signature:
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Security)]
A-8
<PAGE> 78
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Security purchased by the Company pursuant
to Section 4.11 of the Indenture and paragraph 7 of this Security, check the
box: [ ]
If you want to elect to have only part of this Security purchased by the
Company pursuant to Section 4.11 of the Indenture and paragraph 7 of this
Security, state the amount: $_________
Date: ________________ Your Signature:___________________________
(Sign exactly as your name
appears on the other side
of this Security)
Signature Guarantee:
A-9
<PAGE> 1
EXHIBIT 4.3
SCHEDULE OF MATERIAL DETAILS IN WHICH THE FORM OF SUBORDINATED
DEBT INDENTURE (INCLUDING FORM OF SUBORDINATED DEBENTURE/
NOTE) DIFFERS FROM EXHIBIT 4.2, THE FORM OF SENIOR
SUBORDINATED DEBT INDENTURE (INCLUDING FORM OF SENIOR
SUBORDINATED DEBENTURE/NOTE)
The form of Subordinated Debt Indenture (including the form of
Subordinated Debenture/Note) (the "Subordinated Debt Indenture") differs from
Exhibit 4.2, the form of Senior Subordinated Debt Indenture (including the form
of Senior Subordinated Debenture/Note) (the "Senior Subordinated Debt
Indenture"), in the following respects:
(1) The words "Senior Subordinated" in the Senior
Subordinated Debt Indenture are changed to the
word "Subordinated" in the Subordinated Debt
Indenture, and there are references to Junior
Subordinated Debt in the Subordinated Debt
Indenture, but not in the Senior Subordinated
Debt Indenture;
(2) Section 4.12 of the form of Senior Subordinated
Debt Indenture and the reference to Section 4.12
in the Table of Contents to the Senior
Subordinated Debt Indenture are deleted in the
form of Subordinated Debt Indenture; and
(3) Provision for the possible right of the
Registrant to defer interest are included in the
Subordinated Debt Indenture, but not in the
Senior Subordinated Debt Indenture.
<PAGE> 2
EXHIBIT 4.3
DEL WEBB CORPORATION
AND
[BANK OF MONTREAL TRUST COMPANY]
AS TRUSTEE
_____________
$____________
___% [Convertible] [Junior] Subordinated [Debentures] [Notes]*
_____________
INDENTURE
Dated as of _____, 199_
___________________
* Language in brackets indicates alternative language or provisions to be
supplied. As appropriate, disclosure will be made in the relevant
Prospectus Supplement as to which alternative has been chosen or
provisions added and a copy of the final Indenture will be filed as an
Exhibit to a Form 8-K, or other appropriate periodic report.
<PAGE> 3
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
310 (a)(1)....................................................... 7.10
(a)(2)....................................................... 7.10
(a)(3)....................................................... N.A.
(a)(4)....................................................... N.A.
(b).......................................................... 7.08; 7.10; 10.02
(c).......................................................... N.A.
311 (a).......................................................... 7.11
(b).......................................................... 7.12
(c).......................................................... N.A.
312 (a).......................................................... 2.05
(b).......................................................... 10.03
(c).......................................................... 10.03
313 (a).......................................................... 7.06
(b)(1)....................................................... N.A.
(b)(2)....................................................... 7.06
(c).......................................................... 7.06; 10.02
(d).......................................................... 7.06
314 (a).......................................................... 4.01; 10.02
(b).......................................................... N.A.
(c)(1)....................................................... 10.04
(c)(2)....................................................... 10.04
(c)(3)....................................................... N.A.
(d).......................................................... N.A.
(e).......................................................... 10.05
(f).......................................................... N.A.
315 (a).......................................................... 7.01(b)
(b).......................................................... 7.05; 10.02
(c).......................................................... 7.01(a)
(d).......................................................... 7.01(c)
(e).......................................................... 6.11
316 (a)(last sentence)........................................... 2.09
(a)(1)(A).................................................... 6.05
(a)(1)(B).................................................... 6.04
(a)(2)....................................................... N.A.
(b).......................................................... 6.07
317 (a)(1)....................................................... 6.08
(a)(2)....................................................... 6.09
(b).......................................................... 2.04
318(a)............................................................ 10.01
</TABLE>
N.A. means not applicable.
___________________
*This Cross-Reference Table is not part of the Indenture.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 1
Definitions
Section 1.01. Definitions......................................................... 1
"Affiliate".................................................... 1
"Agent"........................................................ 1
"Board of Directors"........................................... 1
"capital stock"................................................ 1
"Change of Control"............................................ 1
"Company"...................................................... 2
"Consolidated Net Earnings".................................... 2
"Default"...................................................... 2
"Disqualified Stock"........................................... 3
"Equity Interests"............................................. 3
"Exchange Act"................................................. 3
"Holder" or "Securityholder"................................... 3
"Indenture".................................................... 3
"Material Subsidiary".......................................... 3
"Officers' Certificate"........................................ 3
"Opinion of Counsel"........................................... 3
"person"....................................................... 3
"principal".................................................... 3
"redemption date".............................................. 3
"redemption price"............................................. 3
"SEC".......................................................... 4
"Securities"................................................... 4
"subsidiary"................................................... 4
"TIA".......................................................... 4
"Trustee"...................................................... 4
"Trust Officer"................................................ 4
Section 1.02. Other Definitions................................................... 4
Section 1.03. Incorporation by Reference of Trust Indenture Act................... 5
Section 1.04. Rules of Construction............................................... 5
ARTICLE 2
The Securities
Section 2.01. Form and Dating..................................................... 6
Section 2.02. Execution and Authentication........................................ 6
</TABLE>
i
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 2.03 Registrar and Paying Agent.......................................... 7
Section 2.04. Paying Agent to Hold Money in Trust................................. 7
Section 2.05. Securityholder Lists................................................ 8
Section 2.06. Transfer and Exchange............................................... 8
Section 2.07. Replacement Securities.............................................. 8
Section 2.08. Outstanding Securities.............................................. 9
Section 2.09. When Treasury Securities Disregarded................................ 9
Section 2.10. Temporary Securities................................................ 9
Section 2.11. Cancellation........................................................ 10
Section 2.12. Defaulted Interest.................................................. 10
Section 2.13. CUSIP Number........................................................ 10
ARTICLE 3
Redemption
Section 3.01. Notices to Trustee.................................................. 10
Section 3.02. Selection of Securities to be Redeemed.............................. 11
Section 3.03. Notice of Redemption................................................ 11
Section 3.04. Effect of Notice of Redemption...................................... 12
Section 3.05. Deposit of Redemption Price......................................... 12
Section 3.06 Securities Redeemed in Part......................................... 12
Section 3.07. Mandatory Redemption................................................ 13
ARTICLE 4
Covenants
Section 4.01. Payment of Securities............................................... 13
Section 4.02. SEC Reports......................................................... 13
Section 4.03. Compliance Certificate.............................................. 14
Section 4.04. Maintenance of Office or Agency..................................... 15
Section 4.05. Restrictions on Dividends and Other Payments........................ 15
Section 4.06. Continued Existence................................................. 17
Section 4.07. Taxes............................................................... 17
Section 4.08. Maintenance of Properties........................................... 17
Section 4.09. Insurance........................................................... 18
Section 4.10. Investment Company Act.............................................. 18
Section 4.11. Change of Control................................................... 18
ARTICLE 5
Successors
Section 5.01 When the Company May Merge, etc..................................... 20
Section 5.02. Successor Corporation Substituted................................... 20
Section 5.03. Purchase Option on Change of Control................................ 21
</TABLE>
ii
<PAGE> 6
<TABLE>
<CAPTION>
Page
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<S> <C>
ARTICLE 6
Defaults And Remedies
Section 6.01. Events of Default................................................... 21
Section 6.02. Acceleration........................................................ 23
Section 6.03. Other Remedies...................................................... 23
Section 6.04. Waiver of Past Defaults............................................. 24
Section 6.05. Control by Majority................................................. 24
Section 6.06. Limitation on Suits................................................. 24
Section 6.07. Rights of Holders to Receive Payment
[and to Convert Securities]....................................... 25
Section 6.08. Collection Suit by Trustee.......................................... 25
Section 6.09. Trustee May File Proofs of Claim.................................... 25
Section 6.10. Priorities.......................................................... 26
Section 6.11. Undertaking for Costs............................................... 26
ARTICLE 7
The Trustee
Section 7.01. Duties of the Trustee............................................... 26
Section 7.02. Rights of the Trustee............................................... 28
Section 7.03. Individual Rights of the Trustee.................................... 28
Section 7.04. Trustee's Disclaimer................................................ 28
Section 7.05. Notice of Defaults.................................................. 29
Section 7.06. Reports by the Trustee to Holders................................... 29
Section 7.07. Compensation and Indemnity.......................................... 29
Section 7.08. Replacement of the Trustee.......................................... 30
Section 7.09. Successor Trustee by Merger, etc.................................... 31
Section 7.10. Eligibility; Disqualification....................................... 31
Section 7.11. Preferential Collection of Claims Against Company................... 32
ARTICLE 8
Satisfaction And Discharge Of Indenture
Section 8.01. Termination of Company's Obligations................................ 32
Section 8.02. Application of Trust Money.......................................... 35
Section 8.03. Repayment to Company................................................ 35
Section 8.04. Reinstatement....................................................... 35
</TABLE>
iii
<PAGE> 7
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 9
Amendments
Section 9.01. Without the Consent of Holders...................................... 36
Section 9.02. With the Consent of Holders......................................... 37
Section 9.03. Compliance with the Trust Indenture Act............................. 38
Section 9.04. Revocation and Effect of Consents................................... 38
Section 9.05. Notation on or Exchange of Securities............................... 38
Section 9.06. The Trustee Protected............................................... 39
ARTICLE 10
General Provisions
Section 10.01. Trust Indenture Act Controls........................................ 39
Section 10.02. Notices............................................................. 39
Section 10.03. Communication by Holders with Other Holders......................... 40
Section 10.04. Certificate and Opinion as to Conditions Precedent.................. 40
Section 10.05. Statements Required in Certificate or Opinion....................... 40
Section 10.06. Rules by Trustee and Agents......................................... 41
Section 10.07. Legal Holidays; Business Days....................................... 41
Section 10.08. No Recourse Against Others.......................................... 41
Section 10.09. Counterparts........................................................ 41
Section 10.10. Other Provisions.................................................... 41
Section 10.11. Governing Law....................................................... 42
Section 10.12. No Adverse Interpretation of Other Agreements....................... 43
Section 10.13. Successors.......................................................... 43
Section 10.14. Severability........................................................ 43
Section 10.15. Table of Contents, Headings, Etc.................................... 43
ARTICLE 11
Subordination
Section 11.01. Agreement to Subordinate............................................ 43
Section 11.02. Certain Definitions................................................. 43
Section 11.03. Liquidation; Dissolution; Bankruptcy................................ 44
Section 11.04. Default on Senior Indebtedness...................................... 45
Section 11.05. Acceleration of Securities.......................................... 45
Section 11.06. When Distributions Must Be Paid Over................................ 46
Section 11.07. Notice by the Company............................................... 46
Section 11.08. Subrogation......................................................... 46
Section 11.09. Relative Rights..................................................... 46
Section 11.10. Subordination May Not Be Impaired by the Company.................... 47
Section 11.11. Distribution or Notice to the Representative........................ 47
</TABLE>
iv
<PAGE> 8
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 11.12. Rights of the Trustee and Paying Agent.............................. 47
Section 11.13 No Fiduciary Duty to Holders of Senior Indebtedness................. 48
ARTICLE 12
Conversion
Section 12.01. Conversion Privilege................................................ 49
Section 12.02. Conversion Procedure................................................ 49
Section 12.03. Fractional Shares................................................... 50
Section 12.04. Taxes on Conversion................................................. 51
Section 12.05. Company to Provide Stock............................................ 51
Section 12.06. Adjustment for Change in Capital Stock.............................. 51
Section 12.07. Adjustment for Rights Issue......................................... 52
Section 12.08. Adjustment for Other Distributions.................................. 53
Section 12.09. Adjustment for [Preferred] [Common] Stock Issue..................... 54
Section 12.10. Adjustment for Convertible Securities Issue......................... 55
Section 12.10A. Special Provision Regarding Preferred Stock......................... 56
Section 12.11. Current Market Price................................................ 57
Section 12.12. Consideration Received.............................................. 57
Section 12.13. When Adjustment May Be Deferred..................................... 58
Section 12.14. When No Adjustment Required......................................... 58
Section 12.15. Notice of Adjustment................................................ 59
Section 12.16. Voluntary Reduction................................................. 59
Section 12.17. Notice of Certain Transactions...................................... 59
Section 12.18. Reorganization of Company........................................... 60
Section 12.19. Company Determination Final......................................... 60
Section 12.20. Trustee's Disclaimer................................................ 60
SIGNATURES .................................................................... 61
EXHIBIT A Form of Security.................................................... A-1
</TABLE>
v
<PAGE> 9
This Indenture, dated as of ________, 199_, is between Del Webb
Corporation, a Delaware corporation (the "Company"), and [Bank of Montreal Trust
Company] (the "Trustee").
The Company has duly authorized the issuance of its ___% [Convertible]
[Junior] Subordinated [Debentures] [Notes] (the "Securities") and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture. Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Securities.
ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (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, by agreement or otherwise.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee of the Board of Directors.
"capital stock" means any and all shares, interests, participations or
other equivalents (however designated) of corporate stock.
"Change of Control" means any of the following: (i) all or substantially
all of the Company's assets are sold as an entirety to any person or related
group of persons or the Company engages in any merger, consolidation, sale of
capital stock, sale of beneficial ownership interests or any other transactions
with any other person or related group of persons, with the effect that after
such transactions the shareholders of the Company immediately prior to such
transactions own, directly or indirectly, in the aggregate less than 50% of the
total voting power entitled to vote in the election (a) of directors of the
Company, if the Company is the surviving entity, or (b) of directors, managers
or trustees (1) of such other person, if the Company is not the surviving
entity, or (2) of such other person that
1
<PAGE> 10
purchases all or substantially all of the Company's assets; (ii) any person or
related group of persons acquires more than 50% of the total voting power
entitled to vote for directors of the Company; or (iii) any person or related
group of persons acquires more than 50% of the total voting power entitled to
vote for directors, managers or trustees (a) of such other person surviving the
transaction or (b) of such other person that purchases all or substantially all
of the Company's assets.
"Company" means the party named as such above until a successor replaces it
in accordance with Article 5 and thereafter means the successor.
"Consolidated Net Earnings" with respect to any person means, for any
period, the aggregate of the Net Earnings of such person and its subsidiaries
for such period, on a consolidated basis, determined in accordance with
generally accepted accounting principles consistently applied; provided that the
Net Earnings of any person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition shall be excluded. "Net
Earnings" of any person for any period shall mean the net earnings (loss) of
such person for such period, determined in accordance with generally accepted
accounting principles consistently applied, (i) excluding (a) extraordinary
items recognized in such period, (b) any gain (but including any loss except as
reduced to the extent aggregate gains exceed aggregate losses, with gains in
excess of losses for one period being carried forward to subsequent periods and
back to prior periods for this purpose) realized upon the sale or other
disposition (including, without limitation, dispositions pursuant to leaseback
transactions) of any real property or equipment of such person which is not sold
or otherwise disposed of in the ordinary course of business and (c) any gain
(but including any loss except as reduced to the extent aggregate gains exceed
aggregate losses, with gains in excess of losses for one period being carried
forward to subsequent periods and back to prior periods for this purpose)
realized upon the sale or other disposition of any capital stock of such person
or a subsidiary of such person except when the sale of capital stock is in
substance the sale of the assets of the person whose capital stock is being
sold, provided that, with respect to (b) and (c) above, gains from sales of
developed or undeveloped real property (including without limitation developed
residential lots) from the Company's community, conventional housing and land
development businesses will be deemed ordinary course and (ii) excluding any
write-up in the carrying value of any asset made after ______________, provided
that the application of the equity method of accounting and the translation into
United States dollars of assets or liabilities in foreign currencies in
accordance with generally accepted accounting principles shall not be deemed to
involve any such write-up.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
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<PAGE> 11
"Disqualified Stock" means any capital stock which, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
maturity date of the Securities.
"Equity Interests" means capital stock or warrants, options or other rights
to acquire capital stock (but excluding any debt security which is convertible
into, or exchangeable for, capital stock).
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor statute.
"Holder" or "Securityholder" means a person in whose name a Security is
registered in the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Material Subsidiary" means (i) Del Webb Communities, Inc., (ii) Del Webb
California Corp. and (iii) any other subsidiary of the Company, if any, named
[in the final Indenture] [or] [in a supplemental indenture.]
"Officers' Certificate" means a certificate signed by two Officers, one of
whom must be the Chairman of the Board, the President, the Treasurer or an
Executive Vice President, Senior Vice President or other Vice President of the
Company.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"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 debt security, including the Securities, means the
principal of the security plus the premium, if any, on the security.
"redemption date" when used with respect to any of the Securities to be
redeemed, means the date fixed by the Company for such redemption pursuant to
this Indenture and the Securities.
"redemption price" when used with respect to any of the Securities to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and the Securities.
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<PAGE> 12
"SEC" means the Securities and Exchange Commission.
"Securities" means the Securities described above issued under this
Indenture.
"subsidiary" of any specified person means (i) a corporation a majority of
whose capital stock with voting power, under ordinary circumstances, to elect
directors is at the time, directly or indirectly, owned by such person or by
such person and a subsidiary or subsidiaries of such person or (ii) any other
person (other than a corporation) in which such person or such person and a
subsidiary or subsidiaries of such person, directly or indirectly, at the date
of determination thereof has at least majority ownership interest or over which
it exercises control.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77-bbbb) as in effect on the date of execution of this Indenture.
"Trustee" means the party named as such above until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter
means the successor.
"Trust Officer" means [the Chairman of the Board, the President or] any
[other] officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
SECTION 1.02. OTHER DEFINITIONS.
<TABLE>
<CAPTION>
Defined
in
Term Section
---- -------
<S> <C>
"Bankruptcy Law"................................................... 6.01
"Business Day"..................................................... 10.07
["Common Stock"..................................................... 12.01]
["Conversion Agent.................................................. 2.03]
"Custodian"........................................................ 6.01
"Event of Default"................................................. 6.01
"Indebtedness"..................................................... 11.02
"Legal Holiday".................................................... 10.07
"Officer".......................................................... 10.10
"Paying Agent"..................................................... 2.03
["Preferred Stock".................................................. 12.01]
["Quoted Price"..................................................... 12.03]
"Registrar"........................................................ 2.03
"Representative"................................................... 11.02
"Restricted Payments".............................................. 4.05
"Senior Indebtedness".............................................. 11.02
"United States Government Obligations"............................. 8.01
</TABLE>
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<PAGE> 13
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder or Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the Securities means the Company or any other obligor on
the Securities.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA have
the meanings so assigned to them.
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 generally accepted accounting
principles as in effect at the date hereof;
(3) references to "generally accepted accounting principles"
shall mean generally accepted accounting principles as in effect at the
date hereof;
(4) "or" is not exclusive;
(5) words in the singular include the plural, and in the
plural include the singular; and
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<PAGE> 14
(6) the male, female and neuter genders include one another.
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING.
The Securities and the Trustee's certificate of authentication relating
thereto shall be substantially in the form set forth in Exhibit A, which is part
of this Indenture, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, provided
that the Securities may be Global Securities and as such may be issued in either
registered or bearer form. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Company shall
approve the forms of the Securities and any notation, legend or endorsement on
them. Each Security shall be dated the date of its authentication.
The terms and provisions contained in the Securities shall constitute, and
are hereby expressly made, a part of this Indenture and, to the extent
applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds that office
at the time the Security is authenticated, the Security shall nevertheless be
valid.
A Security shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
Upon a written order of the Company signed by an Officer of the Company,
the Trustee shall authenticate Securities for original issue up to $ in
aggregate principal amount. The aggregate principal amount of Securities
outstanding at any time may not exceed that amount except as provided in Section
2.07.
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<PAGE> 15
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1,000 or any integral multiple thereof.
The Trustee may appoint an authenticating agent acceptable to the Company
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 right as an Agent to deal with the Company or
an Affiliate.
SECTION 2.03 REGISTRAR AND PAYING AGENT.
The Company shall maintain or cause to be maintained in the Borough of
Manhattan, City of New York (the "New York Office"), State of New York, and in
such other locations as it shall determine: (i) an office or agency where
securities may be presented for registration of transfer or for exchange
("Registrar"); [and] (ii) an office or agency where Securities may be presented
for payment ("Paying Agent")[; and (iii) an office or agency where Securities
may be presented for conversion ("Conversion Agent")]. The Registrar shall keep
a register of the Securities and of their transfer and exchange. The Company may
appoint one or more co-registrars[, and] one or more additional paying agents
[and one or more additional conversion agents]. The term "Paying Agent" includes
any additional paying agent[; and the term "Conversion Agent" includes any
additional conversion agent]. The Company may change any Paying Agent,
Registrar[, or] co-registrar [or Conversion Agent] without prior notice. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture and shall enter into an appropriate agency agreement
with any Registrar, Paying Agent[, or] co-registrar [or Conversion Agent] not a
party to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company or any of its subsidiaries may
act as Paying Agent, Registrar[, or] co-registrar [or Conversion Agent]. If the
Company fails to appoint or maintain another entity as Registrar[, or] Paying
Agent[, or Conversion Agent], the Trustee shall act as such, and the Trustee
shall initially act as such. The Trustee shall cause to be maintained the New
York Office as long as it acts as Registrar[, or] Paying Agent [or Conversion
Agent].
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent (other than the Trustee, who
hereby so agrees), to agree in writing that the Paying Agent will hold in trust
for the benefit of Securityholders or the Trustee all money held by the Paying
Agent for the payment of principal or interest on the Securities, and will
notify the Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require
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<PAGE> 16
a Paying Agent to pay all money held by it to the Trustee. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Company or a
subsidiary) shall have no further liability for the money. If the Company or a
subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Securityholders all money held by it as Paying
Agent.
SECTION 2.05. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee on or before each 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
Securityholders.
SECTION 2.06. TRANSFER AND EXCHANGE.
Where Securities are presented to the Registrar or a co-registrar with a
request to register a transfer or to exchange them for an equal principal amount
of Securities of other denominations, the Registrar shall register the transfer
or make the exchange if its requirements for such transactions are met. To
permit registrations of transfers and exchanges, the Company shall issue and the
Trustee shall authenticate Securities at the Registrar's request. No service
charge shall be made for any registration of transfer or exchange (except as
otherwise expressly permitted herein), but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to Sections 2.10, 3.06[, or]
9.05 [or 12.02]).
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities during a period beginning at the opening of business 15 days
before the day of any selection of Securities for redemption under Section 3.02
and ending at the close of business on the day of selection, or (ii) to register
the transfer or exchange of any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
SECTION 2.07. REPLACEMENT SECURITIES.
If the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security if the Trustee's requirements are
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<PAGE> 17
met. If required by the Trustee or the Company as a condition of receiving a
replacement Security, the Holder must provide an indemnity bond sufficient, in
the judgment of both the Company and the Trustee, to fully protect the Company,
the Trustee, any Agent and any authenticating agent from any loss which any of
them may suffer if the Security is replaced. The Company may charge for its
expenses in replacing any Security.
Every replacement Security is an additional obligation of the Company.
SECTION 2.08. OUTSTANDING SECURITIES.
The Securities outstanding at any time are all the Securities properly
authenticated by the Trustee except for those canceled by the Trustee, those
delivered to it for cancellation, and those described in this Section as not
outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they 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 of the Company holds the Security.
SECTION 2.09. WHEN TREASURY SECURITIES DISREGARDED.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or an Affiliate of the Company shall be considered as though they
are not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Securities which the Trustee knows are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities. Temporary Securities
shall be substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities.
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<PAGE> 18
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Securities surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall dispose of canceled Securities as the Company directs, provided that the
Trustee shall not be required to destroy such canceled securities. The Company
may not issue new Securities to replace Securities that it has paid or that have
been delivered to the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company fails to make a payment of interest on the Securities, it
shall pay such defaulted interest plus any interest payable on the defaulted
interest in any lawful manner. It may pay such defaulted interest, plus any such
interest payable on it, to the persons who are Securityholders on a subsequent
special record date. The Company shall fix any such record date and payment
date. At least 15 days before any such record date, the Company shall mail to
Securityholders a notice that states the record date, payment date and amount of
such interest to be paid.
SECTION 2.13. CUSIP NUMBER.
The Company in issuing the Securities may use a "CUSIP" number, and if so,
such CUSIP number shall be included in notices of redemption or exchange as a
convenience to Holders; provided, however, 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. The Company will
promptly notify the Trustee of any change in the CUSIP number.
ARTICLE 3
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities pursuant to the optional
redemption provisions of paragraph 5 of the Securities, it shall notify the
Trustee of the redemption date and the principal amount of Securities to be
redeemed.
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<PAGE> 19
The Company shall give each notice provided for in this Section at least 60
days before the redemption date (unless a shorter notice period shall be
satisfactory to the Trustee).
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the Trustee shall
select the Securities to be redeemed pro rata or by lot, if lawful, or if
required by another method that complies with the requirements of any exchange
on which the Securities are listed and that the Trustee considers fair and
appropriate. The Trustee shall make the selection not more than 75 days and not
less than 45 days before the redemption date from Securities outstanding not
previously called for redemption. The Trustee may select for redemption portions
of the principal of Securities that have denominations larger than $1,000.
Securities and portions of them it selects shall be in amounts of $1,000 or
integral multiples of $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly of the Securities or
portions of Securities to be called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
Except as provided in Section 4.11, at least 30 days but not more than 60
days before a redemption date, the Company shall mail a notice of redemption to
each Holder whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after
the redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued;
(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;
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<PAGE> 20
(6) the paragraph of the Securities pursuant to which the
Securities are being redeemed;
(7) the aggregate principal amount of Securities that are
being redeemed;
(8) the CUSIP number of the Securities (provided that the
disclaimer permitted by Section 2.13 may be made); [and]
(9) the name and address of the Paying Agent [and Conversion
Agent][.][;]
[(10) that Securities called for redemption may be converted
at any time before the close of business on the redemption date;
(11) that Holders who want to convert Securities must
satisfy the requirements in paragraph 17 of the Securities; and
(12) the current conversion price.]
At the Company's request, the Trustee shall give notice of redemption in
the Company's name and at its expense.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date at the price set forth in the
Security.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before the redemption date, the Company shall deposit with the
Trustee or with the Paying Agent money in immediately available funds sufficient
to pay the redemption price of and accrued interest on all Securities to be
redeemed on that date. The Trustee or the Paying Agent shall return to the
Company any money not required for that purpose.
SECTION 3.06 SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Company a new Security equal in principal amount to the unredeemed portion of
the Security surrendered.
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<PAGE> 21
[SECTION 3.07. MANDATORY REDEMPTION.
To the extent lawful, the Company shall redeem ___ percent of the [initial]
principal amount of the Securities [outstanding] as set forth in paragraph 5B of
the Securities, which amount shall be rounded to the next highest integral
multiple of $1,000, annually on each of the dates, upon the terms and subject to
the conditions set forth in paragraph 6 of the Securities.]
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the Securities on
the dates and in the manner provided in the Securities. Principal and interest
shall be considered paid on the date 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 all principal and interest then due; provided, however, that
money held by the Paying Agent for the benefit of holders of Senior Indebtedness
pursuant to the provisions of Article 11 hereof shall not be considered paid
within the meaning of this Section 4.01.
To the extent lawful, the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on (i)
overdue principal, at the rate borne by the Securities, compounded semiannually;
and (ii) overdue installments of interest (without regard to any applicable
grace period) at the same rate, compounded semiannually.
SECTION 4.02. SEC REPORTS.
The Company shall deliver to the Trustee, within 15 days after it files
them with the SEC, 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 SEC may by rules and regulations prescribe) which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The
Company also shall comply with the other provisions of TIA Section 314(a). The
Company shall timely comply with its reporting and filing obligations under the
applicable federal securities law.
If the Company is at any time not required to file annual or quarterly
reports pursuant to Section 13 or 15(d) of the Exchange Act, the Company will
file with the Trustee, within 15 days after the last date on which it would have
been required to make such a filing with the SEC, and will upon
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<PAGE> 22
request of a Holder mail to that Holder (as soon as practical after receipt of
such request) at his or her address as it appears on the register of Securities
kept by the Registrar, audited annual financial statements prepared in
accordance with generally accepted accounting principles and unaudited quarterly
financial statements. Such financial statements shall be accompanied by a
Management's Discussion and Analysis of Financial Condition and Results of
Operations of the Company for the period reported upon in substantially the form
required under the rules and regulations of the SEC, or any successor form of
similar disclosure then required under the rules and regulations of the SEC.
SECTION 4.03. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company, an Officers' Certificate, one of the
signatories to which shall be the principal executive officer, principal
financial officer or principal accounting officer of the Company, stating that a
review of the activities of the Company and its subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has fully performed its
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms and conditions hereof (or, if a Default or Events of Default shall
have occurred, describing all such Defaults or Events of Default of which he or
she may have knowledge) and that to the best of his or her knowledge no event
has occurred and remains in existence by reason of which payments on account of
the principal of or interest, if any, on the Securities are prohibited.
The Company will, so long as any of the Securities are outstanding, deliver
to the Trustee, forthwith upon becoming aware of (i) any Default, Event of
Default or default in the performance of any term or condition in this Indenture
or (ii) any event of default under any other mortgage, indenture or instrument
as that term is used in Section 6.01(4), an Officers' Certificate specifying
such Default, Event of Default or default.
So long as not contrary to the then current recommendations of the American
Institute of Certified Public Accountants, at the time the Officers' Certificate
described in the second preceding paragraph is filed, the Company also will file
with the Trustee a letter or statement of the independent accountants who shall
have certified the financial statements of the Company for its preceding fiscal
year in connection with the annual report of the Company to its stockholders for
such year to the effect that, in making the examination necessary for
certification of such financial statements, nothing came to their attention that
would lead them to believe
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<PAGE> 23
that the Company has violated any of the terms or conditions contained in this
Indenture, which Default remains uncured at the date of such letter or statement
or, if they shall have obtained knowledge of any such uncured Default,
specifying in such letter or statement such Default or Defaults and the nature
thereof, it being understood that such accountants shall not be liable directly
or indirectly for failure to obtain knowledge of any such Default or Defaults
and that their examination was not directed primarily toward obtaining knowledge
of such noncompliance.
SECTION 4.04. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain or cause to be maintained in the City of New York
an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency not maintained by the Trustee. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 10.10.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designation; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain or cause to be maintained an office or
agency in the City of New York for such purpose.
SECTION 4.05. RESTRICTIONS ON DIVIDENDS AND OTHER PAYMENTS.
The Company shall not, directly or indirectly:
(1) declare or pay any dividend on, or make any distribution
to the holders (as such) of, any shares of its capital stock (other
than dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value
any Equity Interests of the Company (other than any such Equity
Interests owned by any subsidiary); or
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<PAGE> 24
(3) permit any subsidiary to purchase, redeem or otherwise
retire for value any Equity Interests of the Company (other than any
such Equity Interests owned by any subsidiary) (such dividends,
distributions, purchases, redemptions or other acquisitions or
retirements referred to in clauses (1), (2) or (3) being collectively
referred to as "Restricted Payments"), if at the time of such
Restricted Payment:
(i) a Default or an Event of Default shall have
occurred and be continuing, or would occur as a consequence
thereof, or
(ii) if, upon giving effect to such Restricted
Payment, the aggregate amount expended (determined as set
forth below) for all such Restricted Payments subsequent to
the date hereof, shall exceed the sum of:
(a) a percentage of the aggregate
Consolidated Net Earnings of the Company (or, in the
case such aggregate shall be a loss, 100% of such
loss) accrued during fiscal quarters ending
subsequent to a specified date, which percentage and
date will be set forth in a supplemental indenture;
(b) the aggregate net proceeds, including
cash, the fair market value of property other than
cash (as determined by the Board of Directors as
evidenced by a Board resolution) and the amount of
any Indebtedness (including principal, premium and
interest), received by the Company from or in
exchange for the issue or sale (other than to a
subsidiary), subsequent to the date hereof, of
capital stock of the Company (other than Disqualified
Stock), other than in connection with the exchange of
the Securities;
(c) the amount expended for the purchase,
redemption or other acquisition or retirement for
value of any preferred stock of the Company; and
(d) [$_________] [or] [the amount set forth
in a supplemental indenture].
For purposes of any calculation pursuant to the preceding sentence which is
required to be made within 60 days after the declaration of a dividend by the
Company, such dividend shall be deemed to be paid at the date of
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<PAGE> 25
declaration, and the subsequent payment of such dividend during such 60-day
period shall not be treated as an additional Restricted Payment. For purposes of
determining under clause (ii) above the amount expended for Restricted Payments,
cash distributed shall be valued at the face amount thereof and property other
than cash shall be valued at its fair market value as determined by the Board of
Directors as evidenced by a Board resolution.
Notwithstanding the foregoing, the provisions of this Section 4.05 will not
prevent: (i) the purchase of Securities by the Company; (ii) the payment of any
dividend within 60 days after the date of declaration when the payment complied
with the foregoing provisions on the date of declaration; (iii) the purchase,
redemption or any acquisition or retirement for value of the Preferred Stock;
(iv) the retirement of any shares of the Company's capital stock by exchange
for, or out of the proceeds of the substantially concurrent sale (other than to
a subsidiary) of, other shares of its capital stock (other than any Disqualified
Stock), and neither such retirement nor the proceeds of any such sale or
exchange, to the extent used for such retirement, shall be included in any
computation made under this Section 4.05; and (v) the purchase at a price of not
more than $.05 per right of any rights issued or issuable pursuant to any future
rights plan of the Company.
SECTION 4.06. CONTINUED EXISTENCE.
Subject to Article 5, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence as a
corporation and will refrain from taking any action that would cause its
existence as a corporation to cease, including without limitation any action
that would result in its liquidation, winding up or dissolution.
SECTION 4.07. TAXES.
The Company shall, and shall cause each of its Material Subsidiaries to,
pay prior to delinquency all taxes, assessments and governmental levies, except
as contested in good faith and by appropriate proceedings or where the failure
to do so would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
SECTION 4.08. MAINTENANCE OF PROPERTIES.
The Company shall, and shall cause each of its subsidiaries to, take
reasonable action to maintain in appropriate condition each of its principal
properties which in the judgment of management is essential to the business
operations of the Company and its subsidiaries, taken as a whole, and the loss
of which would have a material adverse effect on the financial condition of the
Company and its subsidiaries, taken as a whole. Nothing contained in this
Section 4.08 shall prevent or restrict the sale, abandonment
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or other disposition of any property which management shall deem advisable.
SECTION 4.09. INSURANCE.
The Company shall, and shall cause each of its subsidiaries to, take
reasonable action to maintain insurance, with financially sound and reputable
insurers, to the extent and against such hazards as may be deemed appropriate by
management (giving effect to self-insurance), on each of its principal
properties the loss of which, in the judgment of management, would have a
material adverse effect on the financial condition of the Company and its
subsidiaries, taken as a whole.
SECTION 4.10. INVESTMENT COMPANY ACT.
The Company shall not become an investment company subject to registration
under the Investment Company Act of 1940, as amended.
SECTION 4.11. CHANGE OF CONTROL.
Following the occurrence of any Change of Control, the Company shall offer
(a "Change of Control Offer") to purchase all outstanding Securities at a
purchase price equal to [101%] of the aggregate principal amount of the
Securities, plus accrued and unpaid interest to the date of purchase. The Change
of Control Offer shall be deemed to have commenced upon mailing of the notice
described in the next succeeding paragraph and shall terminate 20 Business Days
after its commencement, unless a longer offering period is required by law.
Promptly after the termination of the Change of Control Offer (the "Change of
Control Payment Date"), the Company shall purchase and mail or deliver payment
for all Securities tendered in response to the Change of Control Offer. If the
Change of Control Payment Date is on or after an interest payment record date
and on or before the related interest payment date, any accrued interest will be
paid to the person in whose name a Security is registered at the close of
business on such record date, and no additional interest will be payable to
Holders who tender Securities pursuant to the Change of Control Offer.
Within 30 days after any Change of Control, the Company (with notice to the
Trustee), or the Trustee upon reasonable notice and at the Company's request
(and at the expense of the Company), will mail or cause to be mailed to all
Holders on the date of the Change of Control a notice of the occurrence of such
Change of Control and of the Holders' rights arising as a result thereof. Such
notice will contain all instructions and materials necessary to enable Holders
to tender their Securities to the Company. Such notice, which shall govern the
terms of the Change of Control Offer, shall state:
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(1) that the Change of Control Offer is being made pursuant to
this Section 4.11 and the length of time the Change of Control Offer
will remain open;
(2) the purchase price and the Change of Control Payment Date;
(3) that any Security not tendered will continue to accrue
interest;
(4) that any Security accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest on the Change of
Control Payment Date;
(5) that any Security accepted for payment pursuant to any
Change of Control Offer will be required to surrender the Security,
with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Security completed, to the Company, a depositary, if
appointed by the Company, or a Paying Agent at the address specified in
the notice prior to termination of the Change of Control Offer;
(6) that Holders will be entitled to withdraw their election
if the Company, depositary or Paying Agent, as the case may be,
receives, not later than the expiration of the Change of Control Offer,
or such longer period as may be required by law, a facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Security the Holder delivered for purchase and
a statement that such Holder is withdrawing his or her election to have
the Security purchased; and
(7) that Holders whose Securities are purchased only in part
will be issued Securities equal in principal amount to the unpurchased
portion of the Securities surrendered.
On or before a Change of Control Payment Date, the Company shall, to the
extent lawful, (i) if the Company appoints a depositary or Paying Agent, deposit
with such depositary or Paying Agent money sufficient to pay the purchase price
of all Securities tendered, (ii) deliver or cause the depositary or Paying Agent
to deliver to the Trustee Securities so tendered and (iii) deliver an Officers'
Certificate identifying the Securities accepted for payment by the Company in
accordance with the terms of this Section 4.11. The depositary, the Paying Agent
or the Company, as the case may be, shall promptly mail or deliver to each
tendering Holder an amount equal to the purchase price of the Securities
tendered by such Holder and accepted by the Company for purchase. The Company
will publicly announce the
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results of the Change of Control Offer on the Change of Control Payment Date.
Any Change of Control Offer will be conducted in compliance with applicable
tender offer rules, including Section 14(e) of the Exchange Act and Rule 14e-1
thereunder.*
ARTICLE 5
SUCCESSORS
SECTION 5.01 WHEN THE COMPANY MAY MERGE, ETC.
The Company shall not consolidate or merge with or into, or sell, lease,
convey or otherwise dispose of all or substantially all of its assets to, any
person unless:
(1) the corporation formed by or surviving any such
consolidation or merger (if other than the Company), or to which such
sale, lease, conveyance or other disposition shall have been made, is a
corporation organized and existing under the laws of the United States,
any state thereof or the District of Columbia;
(2) the corporation formed by or surviving any such
consolidation or merger (if other than the Company), or to which such
sale, lease, conveyance or other disposition shall have been made,
assumes by supplemental indenture all the obligations of the Company
under the Securities and this Indenture; and
(3) immediately after the transaction no Default or Event of
Default exists.
The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in
* Additional substantive covenants may be added.
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accordance with Section 5.01, the successor entity formed by such consolidation
or into or with which the Company is merged or to which such sale, lease,
conveyance or other disposition 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 entity had been named as the Company
herein; provided, however, that the predecessor Company in the case of a sale,
lease, conveyance or other disposition shall not be released from the obligation
to pay the principal of and interest on the Securities.
SECTION 5.03. PURCHASE OPTION ON CHANGE OF CONTROL.
This Article 5 does not affect the obligations of the Company (including
without limitation any successor to the Company) under this Indenture.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" with respect to any Securities occurs if:
(1) the Company defaults in the payment of interest on any
Security 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 when the same becomes due and
payable at maturity, upon redemption or otherwise;
(3) the Company fails to comply with any of its other
agreements or covenants in, or provisions of, the Securities or this
Indenture and the Default continues for the period and after the notice
specified below;
(4) an event of default occurs under any mortgage, indenture
or instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company
or any Material Subsidiary (or the payment of which is guaranteed by
the Company or a Material Subsidiary), whether such Indebtedness or
guarantee now exists or shall be created hereafter, other than
Indebtedness which is or will be non-recourse to the Company or a
Material Subsidiary, if (a) either (i) such event of default results
from the
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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 expressed maturity 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 at
maturity or the maturity of which has been so accelerated, aggregates
[$_______] [the amount set forth in a supplemental indenture] or more;
provided, however, that if such event of default shall be remedied,
cured or waived, then the Event of Default hereunder by reason of such
event of default shall be deemed likewise to have been remedied, cured
or waived without further action by the Trustee or any of the
Securityholders; or
(5) a final judgment or final judgments for the payment of
money are entered by a court or courts of competent jurisdiction
against the Company or any Material Subsidiary which remains
undischarged for a period (during which execution shall not be
effectively stayed) of 60 days, provided that the aggregate of all such
judgments exceeds [$__________] [the amount set forth in a supplemental
indenture];
(6) the Company or any Material Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of it
or for all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) generally is unable to pay its debts as the same
become due;
(7) a court of competent jurisdiction enters a judgment, order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any Material
Subsidiary in an involuntary case,
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(B) appoints a Custodian of the Company or any
Material Subsidiary or for all or substantially all of their
respective properties, or
(C) orders the liquidation of the Company or any
Material Subsidiary,
and the order or decree remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar federal
or state Law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
A Default under clause (3) (other than Defaults under Section 4.05, 4.06[,
or] 5.01 [or, with respect to the right to convert Securities, Article XII],
which Defaults shall be Events of Default with the notice but without the
passage of time specified in this paragraph), (4) or (5) is not an Event of
Default until the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Securities notify the Company of the Default and the
Company does not cure the Default within 60 days after receipt of the notice.
The notice must specify the Default, demand that it be remedied and state that
the notice is a "Notice of Default."
SECTION 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default specified in clauses
(6) and (7) of Section 6.01) occurs and is continuing, the Trustee by notice to
the Company, or the Holders of at least 25% in principal amount of the then
outstanding Securities by notice to the Company and the Trustee, may declare the
unpaid principal of and accrued interest on all the Securities to be due and
payable. Upon such declaration the principal and interest shall be due and
payable immediately. If an Event of Default specified in clause (6) or (7) of
Section 6.01 occurs, such an amount shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder. The Holders of a majority in principal amount of the then
outstanding Securities by notice to the Trustee may rescind an acceleration and
its consequences, except nonpayment of principal or interest on the Securities,
if the rescission would not conflict with any judgment or decree.
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
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payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the then outstanding
Securities by notice to the Trustee may waive an existing Default or Event of
Default and its consequences except a continuing Default or Event of Default in
the payment of the principal of or interest on any Security. When a Default is
waived, it is cured and stops continuing.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the then outstanding
Securities may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, is unduly prejudicial to the rights of
other Securityholders or would involve the Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Securityholder may not pursue any remedy with respect to this Indenture
or the Securities unless:
(1) the Holder gives to the Trustee notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the
then outstanding Securities make a 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 expense;
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(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Securities do not give the
Trustee a direction inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT [AND TO
CONVERT SECURITIES].
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal and interest on the
Security, on or after the respective due dates expressed in the Security[, to
convert the Security as and to the extent permitted by this Indenture and the
terms of the Security] or to bring suit for the enforcement of any such payment
[or of the right to convert the Security] on or after such respective dates,
shall not be impaired or affected without the consent of the Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(1) or (2) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount of principal and
interest remaining unpaid on the Securities and interest on overdue principal
and interest and such further amount as shall be sufficient to cover the costs
and, to the extent lawful, expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.09. 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 and the
Securityholders allowed in any judicial proceedings relative to the Company, its
creditors or its property. Nothing contained herein shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
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SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, 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 Senior Indebtedness to the extent required
by Article 11;
Third: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably,
without preference or priority of any kind, according
to the amounts due and payable on the Securities for
principal and interest, respectively; and
Fourth: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders.
SECTION 6.11. 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 a
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 attorneys 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 does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07
or a suit by Holders of more than 10% in principal amount of the then
outstanding Securities.
ARTICLE 7
THE TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture and
covenants and agrees to perform the same, as herein expressed.
SECTION 7.01. DUTIES OF THE TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture
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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 or her 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
(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. However, in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee 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:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section;
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(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.
(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.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(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.
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SECTION 7.02. RIGHTS OF THE TRUSTEE.
(a) The Trustee may rely on 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 such a document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate, an Opinion of Counsel or both. 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.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) 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.
(e) The Trustee may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF THE TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or an Affiliate
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. However, the Trustee 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, it shall not be accountable for the Company's use
of the proceeds from the Securities and it shall not be responsible for any
statement in the Indenture or any statement in the Securities other than its
authentication.
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SECTION 7.05. NOTICE OF DEFAULTS.
If a Default occurs and is continuing and if it is known to the Trustee,
the Trustee shall mail to each Securityholder a notice of the Default within 90
days after it occurs. Except in the case of a Default in payment 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 Securityholders.
SECTION 7.06. REPORTS BY THE TRUSTEE TO HOLDERS.
Within 60 days after the reporting date stated in Section 10.10, the
Trustee shall mail to Securityholders a brief report dated as of such reporting
date that complies with TIA Section 313(a), if such report is required by TIA
Section 313(a). The Trustee also shall comply with TIA Section 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA Section
313(c).
A copy of each report at the time of its mailing to Securityholders shall
be filed with the SEC and each stock exchange on which the Securities are
listed. The Company shall promptly notify the Trustee when the Securities are
listed on any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such compensation as
shall be agreed in writing between the Company and the Trustee for its services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses incurred by it.
Such expenses may include the reasonable compensation and out-of-pocket expenses
of the Trustee's agents and counsel.
The Company shall indemnify each of the Trustee and any successor Trustee
against any loss, damage, claims, liability or out-of-pocket expenses, including
taxes (other than taxes based on the income, revenues or receipts of the
Trustee) incurred by it in connection with the acceptance (with respect to legal
fees and other out-of-pocket expenses of the Trustee in connection with the
acceptance of the trust or trusts hereunder, to the extent provided in the
writing provided for in this Section 7.07) or administration of the trust or
trusts hereunder, except as set forth in the next paragraph. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity. The
Company shall defend the claim with counsel, who may be outside counsel to the
Company but shall in all events be reasonably satisfactory to the Trustee, and
the Trustee shall cooperate in the defense. In addition, if the Company does not
so defend the Trustee or
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if at any time the counsel so selected is ethically prohibited from representing
the Trustee (whether because of a conflict of interest or the provisions of the
TIA), then the Trustee may retain one separate counsel and the Company shall pay
the reasonable fees and expenses of such separate counsel. The indemnification
herein extends to any settlement, provided that the Company will not be liable
for any settlement made without its consent, provided further that such consent
will not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through negligence or bad faith.
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, except that held in trust to pay principal and
interest on Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6) or (7) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section 7.07 shall survive the termination of this
Indenture.
SECTION 7.08. REPLACEMENT OF THE 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.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the then outstanding Securities may remove the
Trustee by so notifying the removed Trustee and the Company and may appoint a
successor Trustee with the Company's consent. The Company may remove the Trustee
if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Securities may appoint
a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the then outstanding Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Securityholders. The
removed or retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in Section
7.07. Notwithstanding the replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee with respect to expenses and liabilities
incurred by it prior to such replacement.
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 business to, another corporation,
the resulting, surviving or transferee 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 Section 310(a)(1). The Trustee shall always have a combined capital and
surplus as stated in Section 10.10. The Trustee is subject to TIA Section
310(b), including the optional provision permitted by the second sentence of TIA
Section 310(b)(9).
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SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship set forth in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS.
(a) This Indenture shall cease to be of further effect (except that the
Company's obligations under Section 7.07 and 8.03 shall survive) when all
outstanding Securities theretofore authenticated and issued have been delivered
(other than destroyed, lost or stolen Securities that have been replaced or
paid) to the Trustee for cancellation and the Company has paid all sums payable
hereunder. In addition, the Company may elect to have either paragraph (b) or
paragraph (c) below be applied to the outstanding Securities upon compliance
with the conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company shall be deemed to have been
released and discharged from its obligations with respect to the outstanding
Securities on the date the conditions set forth below are satisfied ("legal
defeasance"). For this purpose, legal defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
outstanding Securities, which shall thereafter be deemed to be "outstanding"
only for the purposes of the Sections of and matters under this Indenture
referred to in (i) and (ii) below, and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following, which
shall survive until otherwise terminated or discharged hereunder: (i) the rights
of Holders of outstanding Securities to receive solely from the trust fund
described in paragraph (d) below and as more fully set forth in such paragraph,
payments in respect of the principal of, premium, if any, and interest on such
Securities when such payments are due, (ii) the Company's obligations with
respect to such Securities under Sections 2.06, 2.07 and 4.04, and, with respect
to the Trustee, under Section 7.07, (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (iv) this Section 8.01. Subject to
compliance with this Section 8.01, the Company may exercise its option under
this paragraph (b) notwithstanding the prior exercise of its option under
paragraph (c) below with respect to the Securities.
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(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and discharged
from its obligations under any covenant contained in Article 5 and in Sections
4.02 through 4.12 with respect to the outstanding Securities on and after the
date the conditions set forth below are satisfied ("covenant defeasance"), and
the Securities shall thereafter be deemed to be not "outstanding" for the
purpose of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the outstanding
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.01 but,
except as specified above, the remainder of this Indenture and such Securities
shall be unaffected thereby.
(d) The following shall be the conditions to the application of either
paragraph (b) or (c) above to the outstanding Securities:
(1) the Company has irrevocably deposited in trust with the
Trustee or, at the option of the Trustee, with a trustee, satisfactory
to the Trustee and the Company under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, money or
United States Government Obligations (defined below in this Section
8.01) sufficient to pay principal and interest on the Securities to
maturity and all other sums payable by it hereunder; provided that (i)
the trustee of the irrevocable trust shall have been irrevocably
instructed to pay such money or the proceeds of such United States
Government Obligations to the Trustee and (ii) the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such
United States Government Obligations to the payment of said principal
and interest with respect to the Securities;
(2) the Company has delivered to the Trustee an Officers'
Certificate stating that (A) all conditions precedent provided for
relating to either the legal defeasance under paragraph (b) above or
the covenant defeasance under paragraph (c) above, as the case may be,
have been complied with and (B) if any other Indebtedness of the
Company shall then be outstanding or committed, such legal defeasance
or covenant defeasance will not violate the provisions of the
agreements or instruments evidencing such Indebtedness;
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(3) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit;
(4) such legal defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a Default or Event of
Default under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound;
(5) in the case of an election under paragraph (b) above, the
Company shall have delivered to the Trustee an Opinion of Counsel from
nationally recognized counsel acceptable to the Trustee stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (y) since the date of this
Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that the Holders of the outstanding
Securities will not recognize income, gain or loss for federal income
tax purposes as a result of such legal defeasance and will be subject
to federal income tax on the same amount and in the same manner and at
the same time as would have been the case if such legal defeasance had
not occurred; and
(6) in the case of an election under paragraph (c) above, the
Company shall have delivered to the Trustee an Opinion of Counsel from
nationally recognized counsel acceptable to the Trustee (i) to the
effect that the Holders of the outstanding Securities will not
recognize income, gain or loss for federal income tax on the same
amount and in the same manner and at the same time as would have been
the case if such covenant defeasance had not occurred or (ii) that the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling to the foregoing effect.
After such irrevocable deposit made pursuant to this Section 8.01 and
satisfaction of the other conditions set forth herein, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
this Indenture except for those surviving obligations specified above.
As used herein, "United States Government Obligations" means direct
obligations of the United States of America for the payment of which the full
faith and credit of the United States of America is pledged. In order to have
money available on a payment date to pay principal or interest on the
Securities, the United States Government Obligations shall be payable as to
principal or interest on or before such payment date in such amounts as will
provide the necessary money. United States Government Obligations shall not be
callable at the issuer's option.
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SECTION 8.02. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money or United States Government
Obligations deposited with it pursuant to Section 8.01. It shall apply the
deposited money and the money from United States Government Obligations through
the Paying Agent and in accordance with this Indenture to the payment of
principal and interest on the Securities. Money and securities so held in trust
are not subject to Article 11.
SECTION 8.03. REPAYMENT TO COMPANY.
Subject to Section 8.01(d), the Trustee and the Paying Agent shall promptly
pay to the Company upon written request any excess money or securities held by
them at any time.
The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal or interest that
remains unclaimed for two years after the date upon which such payment shall
have become due; provided, however, that the Company shall have first caused
notice of such payment to the Company to be mailed to each Securityholder
entitled thereto no less than 30 days prior to such payment. After payment to
the Company, Securityholders entitled to the money must look to the Company for
payment as general creditors unless an applicable abandoned property law
designates another person.
SECTION 8.04. REINSTATEMENT.
If (i) the Trustee or Paying Agent is unable to apply any money in
accordance with Section 8.02 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application and (ii) the Holders of at least a majority in principal amount of
the then outstanding Securities so request by written notice to the Trustee, the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.01 until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02; provided, however, that if the Company makes any
payment of interest on or principal of any Security following 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 held by the Trustee or
Paying Agent.
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ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT THE CONSENT OF HOLDERS.
The Company and the Trustee may amend this Indenture or the Securities
without notice to or the consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Section[s] 5.01 [and 12.18];
(3) to provide for uncertificated Securities in addition to
certificated Securities;
(4) to make any change that does not adversely affect the
legal rights hereunder of any Securityholder;
(5) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions as the Company and
the Trustee shall consider to be for the protection of the
Securityholders, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; provided that in respect of any such
additional covenant, restriction, condition or provision, such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the remedies
available to the Trustee upon such an Event of Default or may limit the
right of the Securityholders to waive such an Event of Default;
(6) to surrender any right or power herein conferred upon the
Company;
(7) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of the Indenture under the TIA, or under any similar
federal statute hereafter enacted; or
(8) before any Securities are issued, to make any other change
in this Indenture not prohibited by the TIA.
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SECTION 9.02. WITH THE CONSENT OF HOLDERS.
Subject to Section 6.07, the Company and the Trustee may amend this
Indenture or the Securities with the written consent of the Holders of at least
a majority in principal amount of the then outstanding Securities.
Subject to Sections 6.04 and 6.07, the Holders of a majority in principal
amount of the Securities then outstanding may also waive compliance in a
particular instance by the Company with any provision of this Indenture or the
Securities.
However, without the consent of each Securityholder affected, an amendment
or waiver under this Section may not:
(1) reduce the amount of Securities whose Holders must consent
to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of
interest on any Security;
(3) reduce the principal of or change the fixed maturity of
any Security or alter the redemption provisions with respect thereto;
(4) make any Security payable in money other than that stated
in the Security;
(5) make any change in Section 6.04, 6.07 or 9.02 (this
sentence); [or]
(6) waive a default in the payment of the principal of, or
interest on, any Security [or any default under Article 12; or]
(7) make any change that adversely affects the right to
convert any Security].
To secure a consent of the Holders under this Section, it shall not be
necessary for the Holders to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment or waiver under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing the amendment
or waiver.
After the issuance of any Securities, an amendment under this Section or
under Section 9.01 may not make any change that adversely affects in any
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material respect the rights under Article 11 of the holders of Senior
Indebtedness, unless such holders consent to the change.
SECTION 9.03. COMPLIANCE WITH THE TRUST INDENTURE ACT.
Every amendment to this Indenture or the Securities shall be set forth in a
supplemental indenture that complies with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it by a Holder
of a Security is a continuing consent by the Holder and every subsequent Holder
of a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the consent
as to his or her Security or portion of a Security if the Trustee receives the
notice of revocation before the date on which the Trustee receives an Officers'
Certificate certifying that the Holders of the requisite principal amount of
Securities have consented to the amendment or waiver.
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 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 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 consents from Holders of the principal amount of
Securities required hereunder for such amendment or waiver to be effective shall
have also been given and not revoked within such 90-day period.
After an amendment or waiver becomes effective it shall bind every
Securityholder, unless it is of the type described in any of clauses (1) through
(7) of Section 9.02. In such case, the amendment or waiver shall bind each
Holder of a Security who has consented to it.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee may place an appropriate notation about an amendment or waiver
on any Security thereafter authenticated. The Company in exchange for all
Securities may issue and the Trustee shall authenticate new Securities that
reflect the amendment or waiver.
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SECTION 9.06. THE TRUSTEE PROTECTED.
The Trustee shall sign all supplemental indentures, except that the Trustee
need not sign any supplemental indenture that adversely affects its rights. The
Company may not sign an amendment or supplement until the Board of Directors
approves it. The Trustee, subject to Sections 7.01 and 7.02, shall be entitled
to receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that any amendment, supplement or waiver is authorized or permitted by
this Indenture and complies with the provisions of this Article 9.
ARTICLE 10
GENERAL PROVISIONS
SECTION 10.01. 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
as in effect at the date hereof or, to the extent required by law, as amended
after the date hereof, the required provision shall control.
SECTION 10.02. NOTICES.
Any notice or communication by the Company or the Trustee to the other is
duly given if in writing and delivered in person or mailed by first-class mail
to the other's address stated in Section 10.10. The Company or the Trustee by
notice to the other may designate an additional or different address for
subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by first
class mail to his or her address shown on the register kept by the Registrar.
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 within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Securityholders, it shall
mail a copy to the Trustee and each Agent at the same time.
All other notices or communications shall be in writing.
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SECTION 10.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 10.04. 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 stating that, in the opinion of
the Company, 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 stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of the Company, such
person has made such examination or investigation as is necessary to
enable him or her 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 the
Company, such condition or covenant has been complied with;
provided, however, that with respect to matters of fact an Opinion of Counsel
may rely on an Officers' Certificate.
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SECTION 10.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar [, or] Paying Agent [or Conversion Agent] may
make reasonable rules and set reasonable requirements for its functions.
SECTION 10.07. LEGAL HOLIDAYS; BUSINESS DAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in the City of New York or in the city in which the principal
office of the Trustee is located are not required to be open, and a "Business
Day" is any day that is not a Legal Holiday. 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 10.08. NO RECOURSE AGAINST OTHERS.
No director, officer, employee or shareholder, as such, of the Company
shall have any liability for any obligations of the Company under the Securities
or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the Securities.
SECTION 10.09. COUNTERPARTS.
This Indenture may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
SECTION 10.10. OTHER PROVISIONS.
"Officer" means Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, the Chief Accounting Officer, any
Executive Vice President, Senior Vice President, any Vice President, the
Treasurer, any other Executive Officer, the Secretary, any Assistant Treasurer
or any Assistant Secretary of the Company.
The Company initially appoints the Trustee as Paying Agent, Registrar and
authenticating agent.
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The first certificate pursuant to Section 4.03 shall be for the fiscal year
ending on the first June 30 following the issuance of Securities hereunder, but
in no event later than one year after the date hereof.
The reporting date for Section 7.06 is September 15 of each year. The first
reporting date is the first September 15 following the issuance of Securities
hereunder.
The Trustee shall always have a combined capital and surplus of at least
$10,000,000 as set forth in its most recent published annual report of
condition.
The Company's address [for purposes of Sections 2.03 and 4.04] is:
Del Webb Corporation
6001 24th Street
Phoenix, AZ 85016
Attention: General Counsel
The Trustee's address is:
[Bank of Montreal Trust Company
88 Pine Street, 19th Floor
New York, New York 10005
and for all other purposes hereunder is:
----------------------------------
----------------------------------
----------------------------------
Attn: Corporate Trust Department.]
SECTION 10.11. GOVERNING LAW.
The internal laws of the State of New York shall govern this Indenture, the
Securities, and all disputes arising under or related to either of them, without
regard to the choice or conflicts of laws provisions thereof. If any action or
proceeding shall be brought by a Holder of any of the Securities or by the
Trustee in order to enforce any right or remedy under this Indenture or under
the Securities, the Company hereby consents and will submit to the jurisdiction
of the courts of the State of New York sitting in the City of New York or any
federal court sitting in the City of New York. The Company hereby agrees to
accept service of process by notice given to it pursuant to the provisions of
Section 10.02.
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SECTION 10.12. 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 other indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 10.13. 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 10.14. SEVERABILITY.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.15. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table 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.
ARTICLE 11
SUBORDINATION
SECTION 11.01. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Securityholder by accepting a Security agrees,
that the indebtedness evidenced by the Securities is subordinated in right of
payment, to the extent and in the manner provided in this Article, to the prior
payment in full of all Senior Indebtedness and that the subordination is for the
benefit of the holders of Senior Indebtedness.
SECTION 11.02. CERTAIN DEFINITIONS.
"Indebtedness" of any person, means any indebtedness, contingent or
otherwise, in respect of borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such person or only to a portion
thereof), evidenced by bonds, notes, debentures or similar instruments or
letters of credit or representing the balance deferred and unpaid of the
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purchase price of any property or interest therein (except any such balance that
constitutes a trade payable), all capitalized lease obligations and all direct
or indirect obligations which arise as a result of claims under or drawings
pursuant to surety, performance, completion or maintenance bonds.
"Representative" means the indenture trustee or other trustee, agent or
representative for an issue of Senior Indebtedness.
"Senior Indebtedness" means all Indebtedness (present or future) created,
incurred, assumed or guaranteed by the Company (and all renewals, extensions or
refundings thereof), unless the instrument under which such Indebtedness is
created, incurred, assumed or guaranteed provides that such Indebtedness is not
senior or superior in right of payment to the Securities. Notwithstanding
anything to the contrary in the foregoing, Senior Indebtedness shall not include
(i) any Indebtedness of the Company to any of its subsidiaries, (ii) any trade
payables of the Company or (iii) guarantees by the Company of Indebtedness (a)
outstanding at the date hereof or (b) which may be outstanding in the future,
except that Senior Indebtedness shall include any guarantees as may be listed in
a supplemental indenture and any other present and future guarantees that
provide by their terms that they constitute Senior Indebtedness.
SECTION 11.03. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property:
(1) holders of Senior Indebtedness shall be entitled to
receive payment in full in cash of the principal of and interest
(including interest accruing after the commencement of any such
proceeding) to the date of payment on the Senior Indebtedness before
Securityholders shall be entitled to receive any payment of principal
of or interest on Securities; and
(2) until the Senior Indebtedness is paid in full in cash, any
distribution to which Securityholders would be entitled but for this
Article shall be made to holders of Senior Indebtedness as their
interests may appear, except that Securityholders may receive
securities that are subordinated to Senior Indebtedness to at least the
same extent as the Securities.
For purposes of this Article 11, a distribution may consist of cash,
securities or other property, by set-off or otherwise.
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SECTION 11.04. DEFAULT ON SENIOR INDEBTEDNESS.
Upon the final maturity of any Senior Indebtedness by lapse of time,
acceleration or otherwise, all such Senior Indebtedness shall first be paid in
full, or such payment duly provided for in cash or in a manner satisfactory to
the holders of such Senior Indebtedness, before any payment is made by the
Company or any person acting on behalf of the Company on account of the
principal or interest of the Securities.
The Company may not pay principal of or interest on the Securities and may
not acquire any Securities for cash or property (other than capital stock of the
Company or other securities of the Company that are subordinated to Senior
Indebtedness to at least the same extent as the Securities) if:
(1) a default on Senior Indebtedness occurs and is continuing
that permits holders of such Senior Indebtedness to accelerate its
maturity, and
(2) the default is the subject of judicial proceedings or the
Company receives a notice of the default from a person who may give it
pursuant to Section 11.12, provided that, if the Company receives any
such notice, a subsequent notice received within nine months thereafter
shall not be effective for purposes of this Section.
The Company shall resume payments on the Securities and may acquire them
when:
(a) the default is cured or waived, or
(b) 180 days pass after the notice is given if the default is
not the subject of judicial proceedings,
if this Article otherwise permits the payment or acquisition at that time.
SECTION 11.05. ACCELERATION OF SECURITIES.
If payment of the Securities is accelerated because of an Event of Default,
the Company shall promptly notify holders of Senior Indebtedness of the
acceleration. The Company shall pay the Securities when 180 days pass after the
acceleration occurs if this Article permits the payment at that time; provided,
however, that if no Senior Indebtedness is outstanding at the time of such
acceleration, the Company shall pay the Securities in accordance with the
provisions of Article 6.
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SECTION 11.06. WHEN DISTRIBUTIONS MUST BE PAID OVER.
In the event that the Company shall make any payment to the Trustee on
account of the principal or interest on the Securities at a time when such
payment is prohibited by Section 11.03 or 11.04, such payment shall be held by
the Trustee in trust for the benefit of, and shall forthwith be paid over and
delivered to, the holders of Senior Indebtedness (pro rata as to each of such
holders on the basis of the respective amounts of Senior Indebtedness held by
them) or their Representative under the indenture or other agreement (if any)
pursuant to which 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 accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
If a distribution is made to Securityholders that because of this Article
should not have been made to them, the Securityholders who receive the
distribution shall hold it in trust for holders of Senior Indebtedness and pay
it over to them as their interests may appear.
SECTION 11.07. NOTICE BY THE COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of any
facts known to the Company that would cause a payment of principal of or
interest on the Securities to violate this Article, but failure to give such
notice shall not affect the subordination of the Securities to the Senior
Indebtedness provided in this Article. Nothing in this Article shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 7.07.
SECTION 11.08. SUBROGATION.
After all Senior Indebtedness is paid in full and until the Securities are
paid in full, Securityholders shall be subrogated to the rights of holders of
Senior Indebtedness to receive distributions applicable to Senior Indebtedness
to the extent that distributions otherwise payable to the Securityholders have
been applied to the payment of Senior Indebtedness. A distribution made under
this Article to holders of Senior Indebtedness which otherwise would have been
made to Securityholders is not, as between the Company and Securityholders, a
payment by the Company on Senior Indebtedness.
SECTION 11.09. RELATIVE RIGHTS.
This Article defines the relative rights of Securityholders and holders of
Senior Indebtedness. Nothing in this Indenture shall:
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(1) impair, as between the Company and Securityholders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Securities in accordance with their
terms;
(2) affect the relative rights of Securityholders and
creditors of the Company, other than holders of Senior Indebtedness; or
(3) prevent the Trustee or any Securityholder from exercising
its available remedies upon a Default or Event of Default, subject to
the rights of holders of Senior Indebtedness to receive distributions
otherwise payable to Securityholders.
If the Company fails because of this Article to pay principal of or
interest on Security on the due date, the failure is still a Default or Event of
Default.
SECTION 11.10. SUBORDINATION MAY NOT BE IMPAIRED BY THE COMPANY.
No right of any holder of Senior Indebtedness to enforce the subordination
of the indebtedness evidenced by the Securities shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
SECTION 11.11. DISTRIBUTION OR NOTICE TO THE REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness, the distribution may be made and the notice given to their
Representative.
SECTION 11.12. RIGHTS OF THE TRUSTEE AND PAYING AGENT.
Notwithstanding any provision of this Article 11 or any other provision of
this Indenture, the Trustee and Paying Agent shall not at any time be charged
with knowledge of the existence of any facts which would prohibit the making of
any payment to or by the Trustee or a Paying Agent or the taking of any other
action (pursuant to this Article 11) by the Trustee or a Paying Agent unless and
until the Trustee or such Paying Agent, as the case may be, shall have received
at its office specified in Section 10.10 written notice thereof from the
Company, a Representative or a holder of Senior Indebtedness and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Sections 7.01 and 7.02, and such Paying Agent, shall be entitled in all respects
conclusively to assume that no such fact exists. The Trustee or Paying Agent may
continue to make
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payments on the Securities unless it receives such a notice at least three
business days prior to the date upon which payment is due.
The Trustee shall be entitled to reasonably rely in good faith on the
delivery to it of a written notice by a person representing himself, herself or
itself to be a Representative or a holder of Senior Indebtedness to establish
that such notice has been given by a Representative or a holder of such Senior
Indebtedness. Only the Company, a Representative or a holder of Senior
Indebtedness that has no Representative may give the notice.
In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article 11, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, the extent to which such person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such person under this Article 11, and if such evidence is not furnished, the
Trustee may defer any payment which it may be required to make for the benefit
of such person pursuant to the terms of this Indenture pending judicial
determination as to the rights of such person to receive such payment.
Upon any payment or distribution of assets of the Company referred to in
this Article 11, the Trustee and the Holders of the Securities shall be entitled
to rely upon any order or decree entered by any court of competent jurisdiction
in which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, Custodian,
receiver, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the persons entitled to participate
in such payment or distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 11.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights.
SECTION 11.13 NO FIDUCIARY DUTY TO HOLDERS OF SENIOR INDEBTEDNESS.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article 11, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness
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<PAGE> 57
shall be read into this Indenture against the Trustee or Paying Agent. Neither
the Trustee nor the Paying Agent shall be deemed to owe any fiduciary duty to
the holders of such Senior Indebtedness and, subject to the provisions of
Section 7.02, the Trustee shall not be liable to any holder of such Senior
Indebtedness if it shall, in the absence of bad faith, pay over or deliver to
holders of Securities, the Company or any other person monies or assets to which
any holder of such Senior Indebtedness shall be entitled by virtue of this
Article 11 or otherwise.
[ARTICLE 12
CONVERSION
SECTION 12.01. CONVERSION PRIVILEGE.
For the purpose of this Article XII and paragraph 17 of the Securities,
["Common Stock" means the common stock of the Company as it exists on the date
of this Indenture or as it may be constituted from time to time.] [and]
["Preferred Stock" means the Series __ Preferred Stock of the Company].
A Holder of a Security may convert it into [Preferred] [Common] Stock at
any time during the period stated in paragraph 17 of the Securities. The number
of shares issuable upon conversion of a Security is determined as follows: (i)
divide the principal amount to be converted by the conversion price in effect on
the conversion date; then (ii) round the result to the nearest 1/100th of a
share.
The initial conversion price is stated in paragraph 17 of the Securities.
The conversion price is subject to adjustment.
A Holder may convert a portion of a Security if the portion is $1,000 or an
integral multiple of $1,000. Provisions of this Indenture that apply to
conversion of all of a Security also apply to conversion of a portion of it.
SECTION 12.02. CONVERSION PROCEDURE.
To convert a Security a Holder must satisfy the requirements in paragraph
17 of the Securities. The date on which the Holder satisfies all those
requirements is the conversion date. As soon as practical, the Company shall
deliver through the Conversion Agent a certificate for the number of full shares
of [Preferred] [Common] Stock issuable upon the conversion and a check for any
fractional share. The person in whose name the certificate is registered shall
be treated as a stockholder of record on and after the conversion date.
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<PAGE> 58
No payment or adjustment will be made for accrued interest on a converted
Security or dividends on any [Preferred] [Common] Stock issued. However,
interest will be paid on any interest payment date with respect to Securities
surrendered for conversion after a record date for the payment of interest to
the registered Holder on such record date.
If a Holder converts more than one Security at the same time, the number of
full shares issuable upon the conversion shall be based on the total principal
amount of the Securities converted.
Upon a surrender of a Security that is converted in part, the Company shall
issue and the Trustee shall authenticate for the Holder a new Security equal in
principal amount to the unconverted portion of the Security surrendered.
If the last day on which a Security may be converted is a Legal Holiday in
a place where a Conversion Agent is located, the Security may be surrendered to
that Conversion Agent on the next succeeding day that is not a Legal Holiday.
SECTION 12.03. FRACTIONAL SHARES.
The Company will not issue a fractional share of [Preferred] [Common] Stock
upon conversion of a Security. Instead the Company will deliver its check for
the current market value of the fractional share. The current market value of a
fraction of a share is determined as follows: (i) multiply the current market
price of a full share by the fraction; then (ii) round the result to the nearest
cent.
The current market price of a share of [Preferred] [Common] Stock is the
Quoted Price of the [Preferred] [Common] Stock on the last trading day prior to
the conversion date. As used in Sections 12.03 and 12.11, the "Quoted Price" of
the Common Stock is the last reported sales price of the [Preferred] [Common]
Stock on the New York Stock Exchange or such other securities exchange on which
the [Preferred] [Common] Stock may then be listed, or if the Common Stock is not
listed on a securities exchange, the last reported sales price of the
[Preferred] [Common] Stock as reported by NASDAQ, National Market System or if
neither so reported or listed, the last reported bid price of the [Preferred]
[Common] Stock. In the absence of such a quotation, the Company shall determine
the current market price on the basis of such quotations or other information as
it considers appropriate.
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SECTION 12.04. TAXES ON CONVERSION.
If a Holder of a Security converts it, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on the issue of shares
of [Preferred] [Common] Stock upon the conversion. However, the Holder shall pay
any such tax which is due because the shares are issued in a name other than the
Holder's name.
SECTION 12.05. COMPANY TO PROVIDE STOCK.
The Company has reserved and shall continue to reserve out of its
authorized but unissued [Preferred] [Common] Stock or its [Preferred] [Common]
Stock held in treasury enough shares of [Preferred] [Common] Stock to permit the
conversion of the Securities in full.
All shares of [Preferred] [Common] Stock which may be issued upon
conversion of the Securities shall be fully paid and non-assessable.
The Company will endeavor to comply with all securities laws regulating the
offer and delivery of shares of [Preferred] [Common] Stock upon conversion of
Securities and will endeavor to list such shares on each national securities
exchange on which the [Preferred] [Common] Stock is listed.
SECTION 12.06. ADJUSTMENT FOR CHANGE IN CAPITAL STOCK.
Subject to Section 12.18, if the Company:
(1) pays a dividend or makes a distribution on its [Preferred]
[Common] Stock in shares of its [Preferred] [Common] Stock;
(2) subdivides its outstanding shares of [Preferred] [Common]
Stock into a greater number of shares;
(3) combines its outstanding shares of [Preferred] [Common]
Stock into a smaller number of shares;
(4) makes a distribution on its [Preferred] [Common] Stock in
shares of its capital stock other than [Preferred] [Common] Stock; or
(5) issues by reclassification of its [Preferred] [Common]
Stock any shares of its capital stock;
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then the conversion privilege and the conversion price in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of capital stock of the
Company which he would have owned immediately following such action if he had
converted the Security immediately prior to such action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon conversion of it may
receive shares of two or more classes of capital stock of the Company, the
Company shall determine the allocation of the adjusted conversion price between
the classes of capital stock. After such allocation, the conversion privilege
and the conversion price of each class of capital stock shall thereafter be
subject to adjustment on terms comparable to those applicable to [Preferred]
[Common] Stock in this Article.
SECTION 12.07. ADJUSTMENT FOR RIGHTS ISSUE.
If the Company distributes any rights or warrants [other than the Warrants
(the "Warrants") which are issued as part of unit consisting of Warrants and the
Securities] to all holders of its [Preferred] [Common] Stock entitling them for
a period expiring within 60 days after the record date mentioned below to
purchase shares of [Preferred] [Common] Stock at a price per share less than the
current market price per share on that record date, the conversion price shall
be adjusted in accordance with the formula set forth below and the paragraph
following such formula:
N x P
------
C' = C x O + M
-----------
O + N
where:
C' = the adjusted conversion price.
C = the current conversion price.
O = the number of shares of [Preferred] [Common] Stock
outstanding on the record date.
N = the number of additional shares of [Preferred] [Common] Stock
offered.
P = the offering price per share of the additional shares.
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M = the current market price per share of [Preferred] [Common]
Stock on the record date.
The adjustment shall be made successively whenever any such rights become
exercisable or such warrants are issued and shall become effective immediately
after the rights become exercisable or after the record date for the
determination of stockholders entitled to receive the warrants. If at the end of
the period during which such warrants or rights are exercisable, not all
warrants or rights shall have been exercised, the conversion price shall be
immediately readjusted to what it would have been if "N" in the above formula
had been the number of shares actually issued.
SECTION 12.08. ADJUSTMENT FOR OTHER DISTRIBUTIONS.
If the Company distributes to all holders of its [Preferred] [Common] Stock
(as such) any of its assets or debt securities or any rights or warrants to
purchase assets, debt securities or other securities of the Company, the
conversion price shall be adjusted in accordance with the formula set forth
below and the paragraph following such formula:
C' = C x M - F
-----
M
where:
C' = the adjusted conversion price.
C = the current conversion price.
M = the current market price per share of [Preferred] [Common]
Stock on the record date mentioned below.
F = the fair market value on the record date of the assets,
securities, rights or warrants applicable to one share of
[Preferred] [Common] Stock. The Board of Directors shall
determine the fair market value.
The adjustment shall be made successively whenever any such rights become
exercisable or any such distribution (other than of such rights) is made and
shall become effective immediately after any such rights become exercisable (as
to rights) or after the record date for the determination of stockholders
entitled to receive the distribution (as to other distributions).
Notwithstanding the foregoing, no adjustment shall be made in the event that
rights become exercisable if and to the extent Holders of Securities have
received or are entitled to receive such rights upon conversion. In
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addition, to the extent the rights or warrants expire unexercised, then the
conversion price shall be promptly readjusted to the conversion price which
would then be in effect had the adjustment been made based on the number of
rights or warrants exercised.
This Section does not apply to regular cash dividends or cash distributions
paid out of consolidated current earnings as shown on the books of the Company.
Also, this Section does not apply to rights or warrants referred to in Section
12.07, including the Warrants.
SECTION 12.09. ADJUSTMENT FOR [PREFERRED] [COMMON] STOCK ISSUE.
If the Company issues shares of [Preferred] [Common] Stock for a
consideration per share less than the current market price per share on the date
the Company fixes the offering price of such additional shares, the conversion
price shall be adjusted in accordance with the formula:
O + P
-
C' = C x M
-----
A
where:
C' = the adjusted conversion price.
C = the then current conversion price.
O = the number of shares outstanding immediately prior to the
issuance of such additional shares.
P = the aggregate consideration received for the issuance of
such additional shares.
M = the current market price per share on the date of issuance
of such additional shares.
A = the number of shares outstanding immediately after the
issuance of such additional shares.
The adjustment shall be made successively whenever any such issuance is
made, and shall become effective immediately after such issuance.
This Section does not apply to (i) any of the transactions described in
Sections 12.07, 12.08 and 12.10, (ii) the conversion of Securities, or the
conversion, exchange or exercise of other securities convertible or exchangeable
for [Preferred] [Common] Stock, (iii) [Preferred] [Common] Stock issued to the
Company's employees under bona fide employee plans
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adopted by the Board of Directors and approved by the holders of [Preferred]
[Common] Stock when required by law, if such [Preferred] [Common] Stock would
otherwise be covered by this Section (but only to the extent that the aggregate
number of shares excluded hereby and issued after the date of this Indenture
shall not exceed [5%] of the [Preferred] [Common] Stock outstanding at the time
of the adoption of each such plan, exclusive of antidilution adjustments
thereunder), (iv) [Preferred] [Common] Stock issued to acquire, or in the
acquisition of, all or any portion of a business as a going concern or of
developed, undeveloped or mixed real property, in an arms-length transaction
between the Company and an unaffiliated third party, whether such acquisition
shall be effected by purchase of assets, exchange of securities, merger,
consolidation or otherwise, (v) [Preferred] [Common] Stock issued in a bona fide
public offering pursuant to a firm commitment underwriting or (vi) [Preferred]
[Common] Stock issued on exercise of rights if and to the extent Holders of
Securities have received or are entitled to receive such rights upon conversion.
SECTION 12.10. ADJUSTMENT FOR CONVERTIBLE SECURITIES ISSUE.
If the Company issues any securities convertible into or exchangeable or
exercisable for [Preferred] [Common] Stock (other than the Securities or
securities issued in transactions described in Sections 12.07 and 12.08) for a
consideration per share of [Preferred] [Common] Stock initially deliverable upon
conversion, exchange or exercise of such securities less than the current market
price per share on the date of issuance of such securities, the conversion price
shall be adjusted in accordance with this formula:
O + P
-
C' = C x M
-----
O + D
where:
C' = the adjusted conversion price.
C = the then current conversion price.
O = the number of shares outstanding immediately prior to the
issuance of such securities.
P = the aggregate consideration received for the issuance of
such securities (including as determined in Section 12.12(3)).
M = the current market price per share on the date of issuance
of such securities.
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D = the maximum number of shares deliverable upon conversion
or in exchange for or upon exercise of such securities at the
initial conversion, exchange or exercise rate.
The adjustment shall be made successively whenever any such issuance is
made, and shall become effective immediately after such issuance. If all of the
[Preferred] [Common] Stock deliverable upon conversion, exchange or exercise of
such securities have not been issued when such securities are no longer
convertible, exchangeable or exercisable, 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 securities been made on the basis of
the actual number of shares of [Preferred] [Common] Stock issued upon
conversion, exchange or exercise of such securities.
This Section does not apply to (1) convertible securities issued to
acquire, or in the acquisition of, all or any portion of a business as a going
concern or of developed, undeveloped or mixed real property, in an arms-length
transaction between the Company and an unaffiliated third party, whether such
acquisition shall be effected by purchase of assets, exchange of securities,
merger, consolidation or otherwise, or (ii) convertible securities issued in a
bona fide public offering pursuant to a firm commitment underwriting.
SECTION 12.10A. SPECIAL PROVISION REGARDING PREFERRED STOCK.
In addition to the foregoing adjustments and without duplication, if (x)
prior to the exercise of a Security an event ("Event") occurs which, under the
Certificate of Designations with respect to the Preferred Stock, would have
required an adjustment in the number of share(s) of Common Stock into which the
shares of Preferred Stock acquired on conversion of the Securities would have
been convertible if such Security had previously been converted into Preferred
Stock (but such Preferred Stock acquired on conversion had not been converted
into Common Stock), then (y) after the Event, such share of Preferred Stock
shall, when acquired on conversion of the Security, be convertible into the same
number of share(s) of Common Stock into which it would have been convertible if
such Security had been converted into Preferred Stock (but such Preferred Stock
acquired on conversion had not been converted into Common Stock) prior to the
Event. The adjustment required by the foregoing sentence shall be made each time
there is an Event, provided that no adjustment shall be made under this Section
12.10A unless that adjustment results in a change of 1%, provided further that
all adjustments not made by virtue of the preceding "provided"
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clause shall be carried forward and made when the aggregate of all such
adjustments results in a change of at least 1%.]*
SECTION 12.11. CURRENT MARKET PRICE.
In Sections 12.07, 12.08, 12.09 and 12.10, the current market price per
share of [Preferred] [Common] Stock on any date is the average of the Quoted
Prices (as defined in Section 12.03) of the [Preferred] [Common] Stock for 20
consecutive trading days commencing 30 trading days before the date in question.
In the absence of one or more such quotations, the Company shall determine the
current market price on the basis of such quotations or other information as it
considers appropriate.
SECTION 12.12. CONSIDERATION RECEIVED.
For purposes of any computation respecting consideration received pursuant
to Sections 12.09 and 12.10, the following shall apply:
(1) in the case of the issuance of shares of [Preferred]
[Common] Stock for cash, the consideration shall be the amount of such
cash, provided that in no case shall any deduction be made for any
commissions, discounts or, without limitation, other expenses incurred
by the Company for any underwriting of the issue or otherwise in
connection therewith,
(2) in the case of the issuance of shares of [Preferred]
[Common] Stock for a consideration in whole or in part other than cash,
the consideration other than cash shall be deemed to be the fair market
value thereof as determined in good faith by the Board of Directors
(irrespective of the accounting treatment thereof), whose determination
shall be conclusive, and described in a Board resolution which shall be
filed with the Trustee; and
(3) in the case of the issuance of securities convertible into
or exchangeable or exercisable for shares, the aggregate consideration
received therefor shall be deemed to be the consideration received by
the Company for the issuance of such securities plus the additional
minimum consideration, if any, to be
* This provision will be used, if at all, if the Securities are exercisable
for Preferred Stock which is convertible into Common Stock.
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received by the Company upon the conversion or exchange thereof (the
consideration in each case to be determined in the same manner as
provided in clauses (1) and (2) of this Section).
SECTION 12.13. WHEN ADJUSTMENT MAY BE DEFERRED.
No adjustment in the conversion price need be made unless the adjustment
would require an increase or decrease of at least 1% in the conversion price.
Any adjustments that are not made shall be carried forward and taken into
account in any subsequent adjustment.
All calculations under this Article shall be made to the nearest cent or to
the nearest 1/100th of a share, as the case may be.
SECTION 12.14. WHEN NO ADJUSTMENT REQUIRED.
No adjustment need be made for a transaction referred to in Sections 12.06,
12.07, 12.08, 12.09 or 12.10 if all Securityholders are entitled to participate
in the transaction on a basis and with notice that the Board of Directors
determines to be fair and appropriate in light of the basis and notice on which
holders of [Preferred] [Common] Stock participate in the transaction.
No adjustment need be made for rights to purchase [Preferred] [Common]
Stock pursuant to a Company plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or no par value of
the [Preferred] [Common] Stock.
To the extent the Securities become convertible into cash, no adjustment
need be made thereafter as to the cash. Interest will not accrue or be deemed to
accrue on the cash for this purpose.
In any case in which this Article 12 or the Securities shall require that
an adjustment in the conversion price be made effective as of a record date for
a specified event and notwithstanding anything to the contrary in this Article
12 of the Securities, the Company may elect to defer until the occurrence of
such event the issuing to the holder of any Security converted after such record
date, the [Preferred] [Common] Stock or other capital stock of the Company, if
any, issuable upon such conversion over and above the [Preferred] [Common] Stock
or other capital stock of the Company, if any, issuable upon such conversion on
the basis of the conversion price in effect prior to such adjustment; provided,
however, [that the Company shall deliver to such holder a due bill or other
appropriate instrument evidencing, subject to the following proviso, such
holder's right
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to receive such additional shares upon the occurrence of the event requiring
such adjustment and, provided further,] to the extent such event does not occur,
the adjustment made in respect of such non-occurrence shall be retroactive and
affect each conversion security converted between such Record Date and the date
of such non-occurrence.
SECTION 12.15. NOTICE OF ADJUSTMENT.
Whenever the conversion price is adjusted, the Company shall promptly mail
to Securityholders a notice of the adjustment. The Company shall file with the
Trustee a certificate from the Company's independent public accountants briefly
stating the facts requiring the adjustment and the manner of computing it. The
certificate shall be conclusive evidence that the adjustment is correct, absent
manifest error.
SECTION 12.16. VOLUNTARY REDUCTION.
The Company from time to time may reduce the conversion price by any amount
for any period of time if the period is at least [20] days and if the reduction
is irrevocable during the period; provided that in no event may the conversion
price be less than the then par value of a share of [Preferred] [Common] Stock,
if any.
Whenever the conversion price is reduced, the Company shall mail to
Securityholders a notice of the reduction. The Company shall mail the notice at
least 15 days before the date the reduced conversion price takes effect. The
notice shall state the reduced conversion price and the period it will be in
effect.
A reduction of the conversion price does not change or adjust the
conversion price otherwise in effect for purposes of Sections 12.06, 12.07,
12.08, 12.09 and 12.10.
SECTION 12.17. NOTICE OF CERTAIN TRANSACTIONS.
If:
(1) the Company takes any action that would require an
adjustment in the conversion price pursuant to Sections 12.06, 12.07,
12.08, 12.09 or 12.10 and if the Company does not let Securityholders
participate pursuant to Section 12.14 [or which is referred to in
Section 12.10A];
(2) the Company takes any action that would require a
supplemental indenture pursuant to Section 12.18; or
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<PAGE> 68
(3) there is a liquidation or dissolution of the Company,
the Company shall mail to Securityholders and to the Trustee a notice stating
the proposed record date, proposed effective date or other relevant proposed
date of the act in question. The Company shall mail the notice at least [15]
days before such date. Failure to mail the notice or any defect in it shall not
affect the validity of the transaction.
SECTION 12.18. REORGANIZATION OF COMPANY.
If the Company is a party to a transaction subject to Section 5.01, or a
transaction which reclassifies or changes its outstanding [Preferred] [Common]
Stock, upon consummation of such transaction the Securities shall automatically
become convertible into the kind and amount of securities, cash or other assets
which the Holder of a Security would have owned immediately after the
transaction if the Holder had converted the Security immediately before the
effective date of the transaction. Concurrently with the consummation of such
transaction, the person obligated to issue securities or deliver cash or other
assets upon conversion of the Securities shall enter into a supplemental
indenture so providing and further providing for adjustments which shall be as
nearly equivalent as may be practical to the adjustments provided for in this
Article. The Company or, if applicable, the other person shall mail to
Securityholders a notice describing the transaction and supplemental indenture.
If securities deliverable upon conversion of Securities, as provided above,
are themselves convertible into the securities of an Affiliate of the other
person, that Affiliate shall join in the supplemental indenture and the
supplemental indenture shall so provide.
If this Section applies, Section 12.06 does not apply.
SECTION 12.19. COMPANY DETERMINATION FINAL.
Any determination that the Company or the Board of Directors must make
pursuant to Section 12.03, 12.06, 12.08, 12.09, 12.10, 12.11, 12.12 or 12.14 is
conclusive.
SECTION 12.20. TRUSTEE'S DISCLAIMER.
The Trustee has no duty to determine when an adjustment under this Article
should be made, how it should be made or what it should be. The Trustee has no
duty to determine whether any provisions of a supplemental indenture under
Section 12.18 are correct. The Trustee makes no representation as to the
validity or value of any securities or assets issued upon conversion of
Securities. The Trustee shall not be responsible for the
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Company's failure to comply with this Article. Each Conversion Agent other than
the Company shall have the same protection under this Section as the Trustee.]
The parties have caused this Indenture to be duly executed and attested,
all as of the date first above written, in _____________, _____________,
signifying their agreements contained in this Indenture.
SIGNATURES
DEL WEBB CORPORATION
By:___________________________
Attest:
______________________________
[Bank of Montreal Trust Company,]
as Trustee
______________________________
Attest:
______________________________
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<PAGE> 70
EXHIBIT A
(FACE OF SECURITY)*
No. $ CUSIP No. ____
DEL WEBB CORPORATION
promises to pay to
or registered assigns,
the principal sum of Dollars on ________________________
_____% [CONVERTIBLE] [JUNIOR] SUBORDINATED [DEBENTURE] [NOTE]
DUE ________
Interest Payment Dates: _______________ and _______________
Record Dates: _______________ and _______________
This is one of the Securities Dated:
mentioned in the Indenture
referred to below:
[Bank of Montreal Trust Company,] DEL WEBB CORPORATION
as Trustee
By:__________________________ By:_________________________
Authorized Signatory
By:_________________________
_____________________________
* Global securities will have any appropriate modifications and will bear
essentially the following legend:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
REFERRED TO BELOW AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED
OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER
THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE
REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION
OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL
BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.
A-1
<PAGE> 71
(BACK OF SECURITY)
___% [Convertible][Junior] Subordinated [Debenture] [Note]
Due __________
1. Interest. Del Webb Corporation, 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. 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 _________, 199_. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. [Provisions as to the right of the Company to defer
interest, if any, may be set forth here.]
2. Method of Payment. The Company will pay interest on the Securities
(except defaulted interest) to the persons who are registered holders of
Securities at the close of business on the record date for the next interest
payment date even though Securities are canceled after the record date and on or
before 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. However, the Company may pay principal and
interest by check payable in such money. It may mail an interest check to a
holder's registered address.
3. Paying Agent [, and] Registrar [and Conversion Agent]. [Bank of Montreal
Trust Company] (the "Trustee") will act as Paying Agent [, and] Registrar [and
Conversion Agent]. The Company may change the Paying Agent, Registrar or
co-registrar without prior notice. The Company or any of its subsidiaries may
act in any such capacity.
4. Indenture. The Company issued the Securities under an Indenture dated as
of ___________, 199_ [as modified by a Supplemental Indenture dated as of
____________, 199_] ([collectively, ]the "Indenture") between the Company and
the Trustee. 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 Sections 77aaa-77bbbb) as in effect on the date of the
Indenture. The Securities are subject to, and qualified by, all such terms,
certain of which are summarized hereon, and Securityholders are referred to the
Indenture and such Act for a statement of such terms. The Securities are
unsecured general obligations of the Company limited to $__________ in aggregate
principal amount [of which $___________ may only be issued as 'Additional
Securities' on or before the 30th day after the date of, and pursuant to the
terms of, that certain Underwriting Agreement dated _________, 199_ by and
between the Company
A-2
<PAGE> 72
and _________________. The Company will not originally issue any Additional
Securities except pursuant to the Underwriting Agreement. If no Additional
Securities are issued the Securities will be limited to $____________ in
aggregate principal amount.] Capitalized terms not defined below have the same
meaning as is given to them in the Indenture.
5[A]. Optional Redemption. The Company may not redeem the Securities prior
to ____________. Thereafter, the Company may redeem all the Securities at any
time or some of them from time to time at the redemption prices (expressed in
percentages of principal amount) set forth below plus accrued interest to the
redemption date, if redeemed during the 12-month period beginning _________ of
the years starting with _____ indicated below.
Year Percentage Year Percentage
and
thereafter 100.000
[5B. Mandatory Redemption. The Company will redeem ___% of the [initial]
principal amount of Securities [(including any Additional Securities)] [then
outstanding] on ____________, and on each _________ thereafter through
___________ at a redemption price of 100% of principal amount, plus accrued
interest to the redemption date. The Company may reduce the principal amount of
Securities to be redeemed pursuant to this paragraph 6 by subtracting 100% of
the principal amount (excluding premium) of any Securities that [Securityholders
have converted,] the Company has delivered to the Trustee for cancellation or
the Company has previously purchased, redeemed, retired or acquired other than
pursuant to this paragraph 6, provided that the Company may so subtract the same
Security only once.]
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 or her registered address. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. In the event of a redemption of less than all of the
Securities, the Securities will be chosen for redemption by the Trustee,
generally pro rata or by lot. On and after the redemption date interest ceases
to accrue on Securities or portions of them called for redemption.
A-3
<PAGE> 73
If this Security is redeemed subsequent to a record date with respect to
any interest payment date specified above and on or prior to such interest
payment date, then any accrued interest will be paid to the person in whose name
this Security is registered at the close of business on such record date.
7. Change of Control. Upon a Change of Control, the Company shall make a
Change of Control Offer to purchase all outstanding securities at a price equal
to 101% of the aggregate principal amount of the Securities, plus accrued and
unpaid interest to the date of purchase. To accept the Change of Control Offer,
the Holder hereof must comply with the terms thereof, including surrendering
this Security, with the "Option of Holder to Elect Purchase" portion hereof
completed, to the Company, a depositary, if appointed by the Company, or a
Paying Agent, at the address specified in the notice of the Change of Control
Offer mailed to Holders as provided in the Indenture, prior to termination of
the Change of Control Offer.
8. Subordination. To the extent set forth in Article 11 of the Indenture,
the Securities are subordinated to Senior Indebtedness, which generally is any
Indebtedness outstanding on the date of the Indenture or Indebtedness thereafter
created, incurred, assumed or guaranteed by the Company and all renewals,
extensions and refundings thereof except Indebtedness that expressly provides
that it is not senior to or superior in right of payment to the Securities.
Senior Indebtedness does not include Indebtedness of the Company to any of its
subsidiaries, trade payables of the Company and certain Indebtedness of others
guaranteed by the Company. Indebtedness, for any specified person, is any
indebtedness, contingent or otherwise, in respect of borrowed money (whether or
not the recourse of the lender is to the whole of the assets of the person or
only to a portion thereof) evidenced by bonds, notes, debentures or similar
instruments or letters of credit or representing the balance deferred and unpaid
of the purchase price of any property or interest therein (except any such
balance that constitutes a trade payable), all capitalized leases and all direct
or indirect obligations which arise as a result of claims under or drawings
pursuant to surety, performance, completion or maintenance bonds. To the extent
provided in the Indenture, Senior Indebtedness must be paid before the
Securities may be paid. The Company agrees, and each Securityholder by accepting
a Security agrees, to the subordination and authorizes the Trustee to give it
effect.
9. Denominations, Transfer, Exchange. The Securities are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Securities may be registered and Securities may be exchanged as
provided in the Indenture. As a condition of transfer, 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 exchange or register the transfer of any
Security or portion of a Security selected for redemption. Also, it need not
exchange or register the transfer of any Securities for a period of 15 days
before a selection of Securities to be redeemed.
A-4
<PAGE> 74
10. Persons Deemed Owners. The registered holder of a Security may be
treated as its owner for all purposes.
11. Amendments and Waivers. Subject to certain exceptions, the Indenture or
the Securities may be amended with the consent of the holders of at least a
majority in principal amount of the then outstanding Securities and any existing
default may be waived with the consent of the holders of a majority in principal
amount of the then outstanding Securities. Without the consent of any
Securityholder, the Indenture or the Securities may be amended: to cure any
ambiguity, defect or inconsistency; to provide for assumption of the Company's
obligations to Securityholders; to make any change that does not adversely
affect the rights of any Securityholder; to add to the covenants of the Company,
for the benefit of the Securityholders; or to modify the Indenture to effect its
qualification under the TIA.
12. Defaults and Remedies. An Event of Default is: default for 30 days in
payment of interest on the Securities; default in payment of principal of and
premium, if any, on the Securities; failure by the Company for 60 days after
notice to it to comply with any of its other agreements in the Indenture or the
Securities or, in the case of failure by the Company to maintain its corporate
existence or to comply with the restrictions on payments of dividends and other
distributions, the restrictions on consolidation, merger or transfer or lease of
substantially all its assets [or the provisions regarding conversion of the
Securities], with such notice but without such passage of time; certain defaults
under and accelerations prior to maturity of certain Indebtedness; certain final
judgments which remain undischarged; and certain events of bankruptcy or
insolvency. If an Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the then outstanding Securities
may declare all the Securities to be due and payable immediately, except that in
the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Securities become due and payable without further
action or notice. Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, holders of a majority in principal amount of the
then outstanding Securities may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Securityholders notice of any continuing
default (except a default in payment of principal or interest) if it determines
that withholding notice is in their interests. The Company must furnish an
annual compliance certificate to the Trustee.
13. Trustee Dealings with the Company. [Bank of Montreal Trust Company],
the Trustee under the Indenture, or any of its Affiliates, in their individual
or any other capacities, may make or continue loans to or guaranteed by, accept
deposits from and perform services for the Company or its Affiliates and may
otherwise deal with the Company or its Affiliates as if [Bank of Montreal Trust
Company] were not Trustee.
A-5
<PAGE> 75
14. No Recourse Against Others. No director, officer, employee or
stockholder, as such, of the Company shall have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
Securities.
15. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN CO = tenants in common, TEN ENT =
tenants by the entireties, JT TEN = joint tenants with right 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, which has in it the text of this
Security in larger type. Requests may be made to: Treasurer, Del Webb
Corporation, 2231 East Camelback Road, P.O. Box 29040, Phoenix, AZ 85016.
[17. Conversion. A holder of a Security may convert it into [Preferred]
[Common] Stock of the Company at any time before the close of business on
________,_____. If the Security is called for redemption, the holder may convert
it at any time before the close of business on the redemption date (unless the
Company shall default in payment due upon redemption thereof). The initial
conversion price of $__ per share is subject to adjustment in certain events. 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. On conversion, no payment or adjustment for interest will be
made. However, interest will be paid on any interest payment date with respect
to Securities surrendered for conversion after a record date for the payment of
interest to the registered holder on such record date. The Company will deliver
a check for any fractional share.
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 a Conversion
Agent, (3) furnish appropriate endorsements and transfer documents if required
by the Registrar or Conversion Agent and (4) pay any transfer or similar tax if
required by the Indenture or applicable law. A holder may convert a portion of a
Security if the portion is $1,000 or an integral multiple of $1,000.
The conversion price is subject to adjustment as set forth in the Indenture
in certain events. No adjustment in the conversion price will be required unless
such adjustment would require a change of at least 1% in the price then in
effect; but any adjustment that would otherwise be required to be made shall be
carried forward and taken into account in any subsequent adjustment.
A-6
<PAGE> 76
The Company from time to time may voluntarily reduce the conversion price
for a period of time.
If the Company is a party to a consolidation or merger or a transfer or
lease of all or substantially all of its assets, the Securities automatically
become convertible into the kind and amount of securities, cash or other assets
which the Holder of a Security would have owned immediately after such
transaction if the Holder had converted the Security immediately before the
effective date of the transaction.]
A-7
<PAGE> 77
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
[ ]
(Insert assignee's soc. sec.
or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint:
- --------------------------------------------------------------------------------
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him or her.
Date:
---------------------------------------------------------------------------
[CONVERSION NOTICE
To convert this Security into [Preferred] [Common] Stock of
--------------------
the Company, check the box:
[ ]
To convert only part of this Security, state the amount:
[$ ]
If you want the stock certificate made out in another person's name, fill in the
form below:
[ ]
(insert other person's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type other person's name, address and zip code.)
Your signature:
-----------------------------------------------------------------
- --------------------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Security)]
Signature Guarantee:
A-8
<PAGE> 78
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.11 of the Indenture and paragraph 7 of this Security,
check the box: [ ]
If you want to elect to have only part of this Security purchased by the
Company pursuant to Section 4.11 of the Indenture and paragraph 7 of this
Security, state the amount: $______
Date:____________________ Your Signature:__________________________
(Sign exactly as your name
appears on the other side
of this Security)
Signature Guarantee:
A-9
<PAGE> 1
EXHIBIT 4.4
WARRANT AGREEMENT
DATED AS OF ___________, 199_
BETWEEN
DEL WEBB CORPORATION
AND
________________________________,
WARRANT AGENT
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 1. Appointment of Warrant Agent............................... 1
Section 2. The Warrant Certificates................................... 1
Section 3. Execution and Countersignature of Warrant Certificates..... 1
Section 4. Registration; Transfers and Exchanges...................... 2
Section 5. Duration and Exercise of Warrants; Extension and
Acceleration of Expiration Date............................ 2
Section 6. Call of the Warrants....................................... 4
Section 7. Optional Reduction of Exercise Price....................... 4
Section 8. Payment of Taxes........................................... 4
Section 9. Mutilated or Missing Warrant Certificates.................. 4
Section 10. Reservation of Shares...................................... 5
Section 11. Obtaining of Governmental Approvals and Stock Exchange
Listings................................................... 5
Section 12. Adjustment of Exercise Price, Number of Shares Purchasable
and Number of Warrants..................................... 5
Section 13. Fractional Warrants and Fractional Shares.................. 9
Section 14. Board of Director Action; No Liability of Directors,
Officers, Employees or Shareholders........................ 10
Section 15. Notices to Warrant Holders; Warrant Holders Not
Shareholders............................................... 10
Section 16. Merger, Consolidation or Change of Name of Warrant Agent... 12
Section 17. Warrant Agent.............................................. 12
Section 18. Change of Warrant Agent.................................... 14
Section 19. Issuance of New Warrant Certificates....................... 14
Section 20. Notices to Company and Warrant Agent....................... 14
Section 21. Identity of Transfer Agent................................. 15
Section 22. Supplements and Amendments................................. 15
Section 23. Successors................................................. 15
Section 24. Termination................................................ 15
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
Section 25. Governing Law.............................................. 15
Section 26. Benefits of this Agreement................................. 15
Section 27. Counterparts............................................... 15
Section 28. Conversion of Warrants at Expiration of Exercise Period.... 16
</TABLE>
ii
<PAGE> 4
This Warrant Agreement (this "Agreement") is entered into as of _________,
199_ between Del Webb Corporation, a Delaware corporation (the "Company"), and
________________________________(the "Warrant Agent").
The Company proposes to offer and issue from time to time [in one or more
series its debt securities (the "Debt Securities") with an aggregate initial
offering price not to exceed $___________, which Debt Securities may be offered
as part of units (the "Units") consisting of Debt Securities and] Stock Purchase
Warrants (the "Warrants"). An aggregate of _____ Warrants may be offered and
issued and each Warrant will entitle the holder thereof to purchase one share of
[Series __ Preferred] [Common]* Stock of the Company (as used below the term
"Shares" refers to shares of such [Preferred] [Common] Stock and of any stock of
any other class into which such shares may, after the date of this Agreement, be
changed); and
The Company desires that the Warrant Agent act on behalf of the Company,
and the Warrant Agent is willing so to act, in connection with the issuance of
certificates evidencing the Warrants (the "Warrant Certificates") and the other
matters provided in this Agreement.
The parties hereto agree as set forth below.
SECTION 1. APPOINTMENT OF WARRANT AGENT. The Company appoints the Warrant
Agent to act as agent for the Company in accordance with the instructions set
forth in this Agreement, and the Warrant Agent accepts such appointment and
agrees to so act.
SECTION 2. THE WARRANT CERTIFICATES. The Warrant Certificates (and the
Forms of Exercise and Assignment to be set forth on the reverse thereof) shall
be substantially in the form set forth in Exhibit A attached hereto. The Warrant
Certificates shall be printed, lithographed or engraved and may have such
letters, numbers or other marks of identification and such legends printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Agreement, or as may be required to
comply with any rule or regulation of any stock exchange on which the Warrants
may be listed, or to conform to usage.
SECTION 3. EXECUTION AND COUNTERSIGNATURE OF WARRANT CERTIFICATES.
(a) The Warrant Certificates shall be executed on behalf of the Company by
its Chairman of the Board, Chief Executive Officer, President, any of its Vice
Presidents or its Treasurer. The signature of any of these officers on any
Warrant Certificate may be manual or facsimile. Warrant Certificates bearing the
manual or facsimile signatures of individuals who were at any time the proper
officers of the Company shall bind the Company notwithstanding that such
individuals, or any of them, ceased to be such officers prior to the
countersignature and delivery of such Warrant Certificate or were not such
officers at the date of this Agreement.
(b) Each Warrant Certificate shall be countersigned by the manual
signature of an authorized officer of the Warrant Agent and shall not be valid
for any purpose unless so countersigned. The Warrant Agent is hereby authorized
to countersign Warrant Certificates for issuance pursuant to any provision of
this Agreement.
(c) Each Warrant Certificate shall be dated the date of its
countersignature by the Warrant Agent.
_________________
* Language in brackets in this form of Warrant Agreement may or may not be
included in the final Warrant Agreement. Appropriate disclosure will be made
in the Prospectus Supplement of which alternate terms have been selected.
<PAGE> 5
SECTION 4. REGISTRATION; TRANSFERS AND EXCHANGES.
(a) The Company shall maintain an office or agency in the State of New
York (the "Register Office"), at which there shall be maintained a register for
the registration of the Warrant Certificates and of their transfer from time to
time (the "Warrant Register"). The Register Office shall initially be the
corporate trust office of the Warrant Agent at _______________, New York, New
York. Additional offices or agencies, within or outside of the State of New
York, may be maintained by the registration of the Warrant Certificates and
their transfer from time to time.
(b) The Company and the Warrant Agent may deem and treat the registered
holder of each Warrant Certificate as the absolute owner thereof
(notwithstanding any notation of ownership or other writing thereon made by
anyone) for the purposes of any exercise or conversion thereof and any
distribution to the holder thereof and, without limitation, for all other
purposes, and neither the Company nor the Warrant Agent shall be affected by any
notice to the contrary.
(c) Subject to Section 5(a), each Warrant Certificate shall be
transferable, in whole or in part, on the Warrant Register, upon surrender of
the Warrant Certificate at the Register Office, together with a written
assignment of the Warrant Certificate, on the Form of Assignment set forth on
the reverse thereof or in another form satisfactory to the Warrant Agent, duly
executed by the registered holder thereof or his, her or its duly appointed
legal representative, together with funds to pay any transfer taxes payable in
connection with such transfer as provided in Section 8. Upon such surrender and
payment, a new Warrant Certificate, in the name of the assignee and in the
denomination or denominations specified in such instrument of assignment, shall
be issued and delivered. If less than all of the Warrant Certificate is being
transferred, a new Warrant Certificate or Certificates shall be issued for the
portion of the Warrant Certificate not being transferred. The Warrant
Certificate surrendered shall be canceled by the Warrant Agent.
(d) Subject to Section 5(b), a Warrant Certificate may be divided or
combined with other Warrant Certificates upon surrender thereof at the Register
Office, together with a written notice specifying the names and denominations in
which new Warrant Certificates are to be issued, signed by the registered holder
thereof or his, her or its duly appointed legal representative, together with
the funds to pay any transfer taxes payable in connection with such transfer.
Upon such surrender and payment, a new Warrant Certificate or Certificates shall
be issued and delivered in accordance with such notice. The Warrant Certificate
surrendered shall be canceled by the Warrant Agent.
(e) Except as provided in Section 8, the Company shall make no service or
other charge in connection with any such transfer or exchange of Warrant
Certificates, except for any transfer taxes payable in connection therewith.
Warrant Certificates canceled by the Warrant Agent pursuant to any
provision of this Agreement shall be destroyed by it unless the Company directs
their return to the Company. The Warrant Agent shall furnish to the Company
written confirmation of the destruction of the Warrant Certificates so canceled.
SECTION 5. DURATION AND EXERCISE OF WARRANTS; EXTENSION AND
ACCELERATION OF EXPIRATION DATE.
(a) The Warrants shall expire at the close of business on ____,__ or (i)
such later date as may be established from time to time by the Company in its
sole discretion and specified in a notice given to the Warrant Agent and to the
registered holders of the Warrant Certificates as provided in Sections 20 and
15, respectively, or (ii) such earlier date as may be established by
2
<PAGE> 6
the Company in accordance with Section 6 (the date of expiration is referred to
below as the "Expiration Date"). Each Warrant may be exercised on any business
day on or prior to the close of business on the Expiration Date or on the fifth
New York Stock Exchange ("NYSE") trading day prior to the Warrant Call Date (as
defined below); provided, however, that until ____,__ [or such earlier date as
may be determined by the Company with the consent of the underwriter(s) of the
offering of the Units,] the Warrants and Debt Securities constituting each Unit
may not be separately transferred and transfers or exchanges of the Debt
Securities shall constitute transfers and exchanges of the Warrants included in
the Units of which the transferred or exchanged Debt Securities are a part.
After the close of business on the Expiration Date, unexercised Warrants will
become wholly void and of no value [except for the conversion thereof as
provided in Section 28].
(b) Subject to the provisions of this Agreement, the holder of each
Warrant shall have the right to purchase from the Company (and the Company shall
issue and sell to such holder) one fully paid and nonassessable Share at the
exercise price (the "Exercise Price") at the time in effect hereunder, upon
surrender to the Register Office, of the Warrant Certificate evidencing such
Warrant, with the Form of Exercise on the reverse thereof duly filled in and
signed, and payment of the Exercise Price in lawful money of the United States
of America by cashier's check payable to the order of the Company [or by
delivery of Debt Securities as provided in Section 5(c), or any combination
thereof]. The Exercise Price, as of the initial issuance of the Warrants, shall
be $___ per one Share. The Exercise Price and the number of Shares purchasable
upon exercise of a Warrant shall be subject to adjustment as provided in Section
12. No adjustments shall be made for any cash dividends on Shares issuable on
the exercise of a Warrant.
[(c) Payment of the Exercise Price of Warrants may be made by delivering
Debt Securities to the Warrant Agent, together with the Warrant Certificate.
Debt Securities so delivered will be applied to the payment of the Exercise
Price at 100% of original principal amount, [plus] [without] any accrued
interest. Any increment of the Exercise Price remaining unpaid after application
of the Debt Securities shall be payable by the holder in lawful money of the
United States of America as provided in Section 5(c). The Warrant Agent shall
surrender Debt Securities so delivered to it to the Trustee for the Debt
Securities for cancellation in accordance with the terms of the Indenture
pursuant to which the Debt Securities were issued. If the principal amount of
Debt Securities delivered by any holder exceeds the principal amount applicable
to payment of the Exercise Price, the Warrant Agent shall also deliver to the
Trustee such instructions as the holder shall have given on the reverse of the
Warrant Certificate to enable the Trustee to issue one or more new Debt
Securities representing such excess of principal amount over the Exercise Price.
In no case shall the Company, through either the Warrant Agent or the Trustee,
be required to make any payment, other than payment in lieu of fractional shares
as provided in Section 13, in connection with the exercise of any Warrant where
all or any part of the Exercise Price therefor is paid by delivery of Debt
Securities.]
[(d)] Subject to Section 8, (i) upon such surrender of a Warrant
Certificate and payment of the Exercise Price at the time in effect hereunder,
the Warrant Agent shall cause to be issued and shall deliver to or upon the
written order of the registered holder of such Warrant Certificate and in such
name or names as such registered holder may designate, a certificate for the
Share or Shares issuable upon the exercise of the Warrant or Warrants evidenced
by such Warrant Certificate and (ii) such certificate shall be deemed to have
been issued and any person so designated to be named therein shall be deemed to
have become the holder of record of such Share or Shares as of the date of the
surrender of such Warrant Certificate and payment of the Exercise Price, as
provided above in this Section 5.
[(e)] The Warrant evidenced by a Warrant Certificate shall be exercisable,
at the election of the registered holder thereof, either as an entirety or from
time to time for part only of the number of Warrants evidenced by the Warrant
Certificate. If less than all of the Warrants
3
<PAGE> 7
evidenced by a Warrant Certificate surrendered upon the exercise of Warrants are
exercised, a new Warrant Certificate or Certificates shall be issued for the
remaining number of Warrants evidenced by the Warrant Certificate so
surrendered. All Warrant Certificates surrendered upon exercise of Warrants
shall be canceled by the Warrant Agent.
[(f)] The Warrant Agent shall deposit to the account of the Company all
monies received by the Warrant Agent in payment of the Exercise Price of any
Warrant. The Warrant Agent shall account promptly to the Company with respect to
the exercise of Warrants.
SECTION 6. CALL OF THE WARRANTS. If the closing price per share for the
Shares (determined as provided in the second sentence of Section 12(d)) is
greater than % of the Exercise Price (as defined below) then in effect for
any New York Stock Exchange ("NYSE") trading days within a period of
consecutive NYSE trading days, the Company may elect, by written notice given
within days after the end of such -day period, to redeem the Warrants, at a
price of $__ per Warrant, on a date not less than days after the giving of
such notice (which date shall not be prior to , ) (such date is referred
to below as the "Warrant Call Date"). The notice of the Warrant Call Date shall
be given to the Warrant Agent as provided in Section 20 and copies of such
notice shall be mailed to the registered holders of the Warrant Certificates as
provided in Section 15. If there is not at any relevant time a NYSE, then
business days rather than trading days on the NYSE will be used in the foregoing
provisions.
SECTION 7. OPTIONAL REDUCTION OF EXERCISE PRICE. The Company shall have
the right, at any time or from time to time, voluntarily to reduce the then
current Exercise Price to such amount (the "Reduced Exercise Price") and for
such period or periods of time, which may be through the close of business on
the Expiration Date (the "Reduced Exercise Price Period"), as the Board of
Directors of the Company may determine, approve or ratify. Notice of any such
Reduced Exercise Price and Reduced Exercise Price Period shall be given to the
registered holders of Warrants in the manner provided in Section 15 and to the
Warrant Agent in the manner provided in Section 20. After the termination of the
Reduced Exercise Price Period, the Exercise Price shall be such Exercise Price
as would have been in effect, as adjusted pursuant to Section 12, had there been
no reduction in the Exercise Price pursuant to the provisions of this Section 7.
Any adjustment in the Exercise Price pursuant to Section 12 during the Reduced
Exercise Price Period shall not be made in the Reduced Exercise Price in the
manner specified in Section 12 except to the extent that such reduction in the
Exercise Price (before reduction to the Reduced Exercise Period) pursuant to
Section 12 would result in an Exercise Price lower than the then current Reduced
Exercise Price. No reduction of the then current Exercise Price pursuant to the
provisions of this Section 7 shall be deemed for the purposes of Section 12
hereof to require any adjustment in the Exercise Price.
SECTION 8. PAYMENT OF TAXES. The Company shall pay all documentary stamp
taxes, if any, attributable to the issuance of Shares or other securities upon
the exercise of any Warrant; provided, however, that the Company shall not be
required to pay any tax or taxes that may be payable in respect of any transfer
involved in the issuance of any Warrant Certificates or certificates for Shares
in a name other than that of the registered holder of a Warrant Certificate
surrendered upon the exercise or transfer of a Warrant, and the Company shall
not be required to issue or deliver any such certificates unless and until the
persons requesting the issuance thereof have paid to the Company the amount of
such tax or have established to the satisfaction of the Company that such tax
has been paid.
SECTION 9. MUTILATED OR MISSING WARRANT CERTIFICATES. If any Warrant
Certificate is mutilated, lost, stolen or destroyed, the Company may in its
discretion issue, and the Warrant Agent may countersign, in exchange and
substitution for and upon cancellation of the mutilated, lost, stolen or
destroyed Warrant Certificate, a new Warrant Certificate of like tenor and
representing an equivalent number of Warrants, but only upon receipt of evidence
satisfactory to
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the Company and the Warrant Agent of such mutilation, loss, theft or destruction
and indemnity, if requested, also satisfactory to them, in the sole discretion
of each. Applicants for such substitute Warrant Certificates shall also comply
with such other reasonable regulations and pay such other charges as the Company
may in its sole discretion prescribe.
SECTION 10. RESERVATION OF SHARES.
(a) The Company will at times reserve and keep available, free from
preemptive rights, out of the aggregate of its authorized but unissued Shares
and its authorized and issued Shares held in its Treasury, for the purpose of
enabling it to satisfy its obligation to issue Shares upon exercise of Warrants
or upon conversion of Warrants at the expiration of the period during which the
Warrants are exercisable, the full number of Shares deliverable upon the
exercise of all outstanding Warrants.
(b) Before taking any action that would cause an adjustment pursuant to
Section 12 reducing the Exercise Price below the then par value (if any) of the
Shares issuable upon exercise of the Warrants, the Company will take any
corporate action that may, in the opinion of its counsel (which may be counsel
employed by the Company), be necessary in order that the Company may validly and
legally issue fully paid and nonassessable Shares at the Exercise Price as so
adjusted.
(c) The Company covenants that all Shares that may be issued upon the
exercise or conversion of Warrants will, upon issuance against payment in full
of the Warrant Exercise Price, be fully paid and nonassessable and free from all
taxes, liens, charges and security interests created by the Company with respect
to the issuance thereof.
(d) The Warrant Agent is authorized to requisition from time to time from
a transfer agent for the Shares (including the Company if then acting as a
transfer agent), stock certificates required to honor exercises of outstanding
Warrants. The Company hereby authorizes its present and any future such transfer
agent to comply with all such requests. The Company will supply such transfer
agent(s) with duly executed stock certificates for such purpose and will itself
provide or otherwise make available any cash that may be payable as provided in
Section 13 of this Agreement.
SECTION 11. OBTAINING OF GOVERNMENTAL APPROVALS AND STOCK EXCHANGE
LISTINGS. The Company will in good faith and as expeditiously as possible take
all action that may be necessary to obtain and keep effective any and all
permits, consents and approvals of governmental agencies and authorities, and
will make any and all filings under federal and state securities laws, necessary
in connection with the issuance, distribution and transfer of Warrant
Certificates, the exercise of the Warrants and the issuance, sale, transfer and
delivery of Shares upon exercise or conversion of Warrants. The Company will use
its best efforts to have the Shares that are issuable upon the exercise or
conversion of the Warrants listed on the securities exchange or exchanges, if
any, on which the then outstanding Shares are listed.
SECTION 12. ADJUSTMENT OF EXERCISE PRICE, NUMBER OF SHARES PURCHASABLE AND
NUMBER OF WARRANTS. The Exercise Price and either the number of Shares
purchasable upon the exercise of each Warrant or the number of Warrants
outstanding are subject to adjustment from time to time as provided in this
Section 12.
(a) If the Company at any time after the date of this Agreement (i)
declares a stock dividend or other distribution on the Shares payable in Shares,
(ii) subdivides the outstanding Shares or (iii) combines the outstanding Shares
into a smaller number of Shares, the Exercise Price to be in effect after the
time of the record date for such dividend or distribution or of the effective
date of such subdivision or combination shall be determined by multiplying the
Exercise Price in effect immediately prior to such time by a fraction, the
numerator of which
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<PAGE> 9
shall be the number of Shares outstanding immediately prior to such time and the
denominator of which shall be the number of Shares to be outstanding immediately
after giving effect to such dividend, distribution, subdivision or combination,
in each case excluding Treasury Shares. Such an adjustment shall be made
successively whenever any event listed above occurs.
(b) If the Company fixes a record date for the issuance of rights or
warrants to all holders of Shares entitling them (for a period expiring within
__ days after such record date) to subscribe for or purchase Shares (or
securities convertible into Shares) at a price per Share (or having a conversion
price per Share, if a security convertible into Shares) less than the current
market price per Share (as defined in Section 12(d)) on such record date, the
Exercise Price to be in effect after such record date shall be determined by
multiplying the Exercise Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the number of Shares outstanding
on such record date plus the number of Shares which the aggregate offering price
of the total number of Shares so to be offered (or the aggregate initial
conversion price of the convertible securities so to be offered) would purchase
at such current market price (as defined in Section 12(d)) and the denominator
of which shall be the number of Shares outstanding on such record date plus the
number of additional Shares to be offered for subscription or purchase (or into
which the convertible securities so to be offered are initially convertible). If
such subscription price may be paid in consideration, part or all of which shall
be in a form other than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors of the Company. Shares owned
by or held for the account of the Company or any majority-owned subsidiary of
the Company shall not be deemed outstanding for the purpose of any such
computation. Such an adjustment shall be made successively whenever such a
record date is fixed; and in the event that such rights or warrants are not so
issued and to the extent they are issued but expire unexercised, the Exercise
Price shall again be adjusted to be the Exercise Price that would then be in
effect if such record date had not been fixed.
(c) If the Company fixes a record date for the making of a distribution to
all holders of Shares (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing corporation) of
shares of its stock (other than Shares), evidences of its indebtedness or assets
(other than dividends or distributions in cash payable out of consolidated
earnings or earned surplus) or subscription rights or warrants (excluding those
referred to in Section 12(b)), the Exercise Price to be in effect after such
record date shall be determined by multiplying the Exercise Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the current market price per Share (as defined in Section 12(d)) on
such record date, less the fair market value (as determined in good faith by the
Board of Directors of the Company) of the portion of such shares, evidences of
indebtedness, assets, subscription rights or warrants applicable to one Share,
and the denominator of which shall be such current market price per Share. Such
an adjustment shall be made successively whenever such a record date is fixed;
and if such distribution is not so made, the Exercise Price shall again be
adjusted to be the Exercise Price which would then be in effect if such record
date had not been fixed.
(d) For the purpose of any computation under Sections 12(b) or (c), the
current market price per Share on any record date shall be deemed to be the
average of the daily closing prices per Share for the 30 consecutive NYSE
trading days commencing 45 NYSE trading days before such record date. For the
purpose of all relevant provisions of this Agreement, the closing price for each
day shall be the last sale price regular way or, in case no such sale takes
place on such day, the average of the closing bid and asked prices regular way,
in either case on the NYSE, or, if the Shares are not listed or admitted to
trading on the NYSE, on the principal national securities exchange on which the
Shares are listed or admitted to trading or, if the Shares are not listed or
admitted to trading on any national securities exchange, the average of the
highest reported bid and lowest reported asked prices as furnished by the
National Association of Securities Dealers, Inc. (the "NASD") through NASDAQ or
a similar organization if NASDAQ is no longer reporting such information (such
reported last sale price of, or such average of such
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<PAGE> 10
bid and asked prices for, the Shares or any other securities is referred to
herein as the "Market Value" of the Shares or such securities). If on any such
trading day the Shares are not quoted by any such organization, the current
market price of such Shares on such day, as determined by the Board of Directors
of the Company, shall be used.
(e) Not withstanding the foregoing, no adjustment in the Exercise Price
shall be required unless such adjustment would require an increase or decrease
of at least one percent in such price; provided, however, that any adjustments
which by reason of this subsection (e) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section 12 shall be made to the nearest cent or to the
nearest one-hundredth of a Share, as the case may be.
(f) If at any time, as a result of an adjustment made pursuant to this
Section 12, the holder of any Warrant thereafter exercised becomes entitled to
receive any shares of the Company other than Shares, thereafter the number of
such other shares so receivable upon exercise of any Warrant shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Shares contained in this
Section 12, and the provisions of this Section 12 and Sections 5, 6, 7, 8, 10,
11, 13 and 14 with respect to the Shares shall apply on like terms to any such
other shares.
(g) In any case in which this Section 12 shall require that an adjustment
in the Exercise Price be made effective as of a record date for a specified
event, the Company may elect to defer until the occurrence of such event the
issuing to the holder of any Warrant exercised after such record date, the
Shares and other capital stock of the Company, if any, issuable upon such
exercise over and above the Shares and other capital stock of the Company, if
any, issuable upon such exercise on the basis of the Exercise Price in effect
prior to such adjustment; provided, however, that the Company shall deliver to
such holder a due bill or other appropriate instrument evidencing, subject to
the following proviso, such holder's right to receive such additional shares
upon the occurrence of the event requiring such adjustment and, provided
further, to the extent such event does not occur, the adjustment made in respect
of such non-occurrence shall be retroactive to such Record Date and affect all
Warrants exercised between such Record Date and the date of such non-occurrence.
(h) Upon each adjustment of the Exercise Price pursuant to this Section
12, each Warrant outstanding immediately prior to such adjustment shall
thereafter constitute the right to purchase, at the adjusted Exercise Price per
share, an adjusted number of Shares determined (to the nearest hundredth) by
multiplying the number of Shares purchasable upon exercise of a Warrant
immediately prior to such adjustment by a fraction, the numerator of which shall
be the Exercise Price in effect immediately prior to such adjustment and the
denominator of which shall be the Exercise Price in effect immediately after
such adjustment; provided, however, that the Company may elect, in substitution
for the adjustment in the number of Shares pursuant to this subsection (h), to
adjust the number of Warrants pursuant to Section 12(i).
(i) In substitution for any adjustment in the number of Shares purchasable
upon the exercise of a Warrant as provided in Section 12(h), the Company may
elect to adjust the number of Warrants so that each Warrant outstanding after
such adjustment in number of Warrants shall be exercisable for one Share. Each
Warrant held of record immediately prior to such adjustment of the number of
Warrants shall become that number of Warrants determined (to the nearest
hundredth) by multiplying the number of Shares purchasable upon exercise of a
Warrant immediately prior to such adjustment by a fraction, the numerator of
which shall be the Exercise Price in effect immediately prior to such adjustment
and the denominator of which shall be the Exercise Price in effect immediately
after such adjustment. The Company shall make a public announcement (by news
release and by notice to any securities exchange on which the Warrants are then
listed) of its election to adjust the number of Warrants, indicating the record
date for the adjustment and, if known at the time, the amount of the adjustment
to be made in the number of
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Warrants. This record date may be the date on which the Exercise Price is
adjusted or any day thereafter, but shall be at least 10 days later than the
date of the public announcement. Upon each adjustment of the number of Warrants
pursuant to this subsection (i) the Company shall, as promptly as practicable,
cause to be distributed to holders of record of Warrant Certificates on such
record date Warrant Certificates evidencing, subject to Section 13, the
additional Warrants to which such holders shall be entitled as a result of such
adjustment or, at the option of the Company, shall cause to be distributed to
such holders of record in substitution and replacement for the Warrant
Certificates held by such holders prior to the date of adjustment, and upon
surrender thereof if required by the Company in its sole discretion, new Warrant
Certificates evidencing all the Warrants to which such holders shall be entitled
after such adjustment. Warrant Certificates to be so distributed may, at the
option of the Company, bear the adjusted Exercise Price and shall be registered
in the names of the holders of record of Warrant Certificates on the record date
specified in the public announcement.
(j) In the case of any reclassification or change of outstanding Shares
(other than a change in par value, if any, as a result of a subdivision or
combination), or in case of any consolidation of the Company with any other
corporation or any merger of the Company into another corporation or of another
corporation into the Company (other than a consolidation or merger in which the
Company is the continuing corporation and which does not result in any such
reclassification or change of outstanding Shares, but including a consolidation
or merger in which the Company is the continuing corporation and in which all or
a majority of the Shares outstanding immediately prior to such consolidation
(excluding Treasury Shares) or merger are converted into, or converted into the
right to receive, consideration other than capital stock), or in case of any
sale of the properties and assets of the Company as, or substantially as, an
entirety to any other person or entity, each Warrant shall, after such
reclassification or change of Shares, consolidation, merger or sale, be
exercisable at the then Exercise Price and upon the other terms and conditions
specified in this Agreement for the number of shares of stock or other
securities or assets (which may be cash) to which a holder of the number of
Shares purchasable (at the time of such reclassification or change of Shares,
consolidation, merger or sale) upon the exercise of such Warrant would have been
entitled (other than pursuant to any applicable dissenters rights of appraisal)
upon such reclassification or change of Shares, consolidation, merger or sale;
and in any such case, the provisions set forth in this Section 12 with respect
to the rights and interests thereafter of the holders of the Warrants shall be
appropriately adjusted so as to be applicable, as nearly as may reasonably be,
to any shares of stock, other securities or property thereafter deliverable on
the exercise of the Warrants. The Company shall not effect any such
consolidation, merger or sale unless, prior to or simultaneously with the
consummation thereof, the successor person or entity (if other than the Company)
resulting from such consolidation or merger or the corporation purchasing such
assets or other appropriate person or entity shall assume, by written instrument
executed and delivered to the Warrant Agent, the obligation to deliver to the
holder of each Warrant such shares of stock, securities or assets as, in
accordance with the foregoing provisions, such holders are entitled to receive
and to assume the other obligations of the Company under this Warrant Agreement.
[Notwithstanding the foregoing, in the event of any such consolidation, merger
or sale in which holders of the Company's Common Stock within two years of the
date of this Agreement receive any consideration other than common stock or
rights, options or warrants to acquire common stock, the holder of each Warrant
so electing in a writing filed with the Company prior thereto, shall be entitled
to receive cash, simultaneously with the consummation of such transaction, in an
amount equal to the average closing price of the Warrant (as determined in the
same manner as the average closing price per Share is determined in the second
and third sentences of Section 12(d)) for the 20 NYSE trading days immediately
preceding the public announcement of such merger, consolidation or sale.]
(k) Except as provided in this Section 12, no adjustment in respect of any
dividends on the Shares shall be made during the term of a Warrant or upon the
exercise of a Warrant.
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(l) Irrespective of any adjustments in the Exercise Price or the number or
kind of shares purchasable upon the exercise of the Warrants, Warrant
Certificates theretofore or thereafter issued may continue to express the same
Exercise Price per share and number and kind of shares as are stated on the
Warrant Certificates initially issuable pursuant to this Agreement.
(m) Anything in this Section 12 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Exercise Price or
increase in the number of Shares purchasable upon the exercise of each Warrant,
in addition to those adjustments required by this Section 12, as it in its sole
discretion shall determine to be advisable in order that any consolidation or
subdivision of the Shares, or any issuance wholly for cash of any Shares at less
than the current market price, or any issuance wholly for cash of Shares or
securities which by their terms are convertible into or exchangeable for Shares,
or any stock dividend, or any issuance of rights, options or warrants referred
to above in this Section 12, made by the Company to its common shareholders
shall not be taxable to them.
(n) Anything in this Section 12 to the contrary notwithstanding, granting
of options to purchase Shares by the Company or its subsidiaries to any of their
employees, issuance of Shares on the exercise of such options and subscriptions
for purchases of Shares under any dividend reinvestment plan of the Company are
not to be taken into consideration for adjustments under this Section 12.
[(o) In addition to the foregoing adjustments and without duplication, if
(x) prior to the exercise of a Warrant an event ("Event") occurs which, under
the Certificate of Determination with respect to the Shares, would require an
adjustment in the number of share(s) of Common Stock into which the one Share
purchasable on exercise of such Warrant would have been convertible if such
Warrant had then been exercised, then (y) after the Event such one Share shall,
when acquired on exercise of the Warrant, be convertible into the same number of
share(s) of Common Stock into which it would have been convertible if such
Warrant had been exercised prior to the Event. The adjustment required by the
foregoing sentence shall be made each time there is an Event, provided that no
adjustment shall be made under this Section 12(o) unless that adjustment results
in a change of one percent, provided further that all adjustments not made by
virtue of the preceding "provided" clause shall be carried forward and made when
the aggregate of all such adjustments results in a change of at least one
percent.]*
SECTION 13. FRACTIONAL WARRANTS AND FRACTIONAL SHARES.
(a) The Company shall not be required to issue fractions of Warrants on
any distribution of Warrants to holders of Warrant Certificates pursuant to
Section 12(i) or to distribute Warrant Certificates that evidence fractional
Warrants. In lieu of such fractional Warrants, there shall be paid to the
registered holders of Warrant Certificates with regard to which such fractional
Warrants would otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a whole Warrant on the trading day
immediately prior to the date on which such fractional Warrant would have been
otherwise issuable. For purposes of this Section 13(a), the current market value
of a Warrant shall be the closing price of the Warrant for the trading day
immediately prior to the date on which such fractional Warrant would have been
- ---------------------------
* This provision will be used, if at all, if the Warrants are exercisable for
Preferred Stock which is convertible into Common Stock.
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<PAGE> 13
otherwise issuable. The closing price for any day shall be the last sale price
regular way or, in case no such sale takes place on such day, the average of the
closing bid and asked prices regular way, in either case on the principal
national securities exchange on which the Warrants are listed or admitted to
trading or, if the Warrants are not listed or admitted to trading on any
national securities exchange, the average of the highest reported bid and lowest
reported asked prices as furnished by the NASD through NASDAQ or a similar
organization if NASDAQ is no longer reporting such information. If on any such
date the Warrants are not quoted by any such organization, the fair value of the
Warrants on such date, as determined in good faith by the Board of Directors of
the Company, shall be used.
(b) The Company shall not be required to issue fractions of Shares upon
exercise or conversion of the Warrants or to distribute Share certificates that
evidence fractional Shares. In lieu of fractional Shares, there shall be paid to
the registered holders of Warrant Certificates at the time such Warrants are
exercised or converted an amount in cash equal to the same fraction of the
Market Value of the Shares on the trading day immediately prior to the date of
such exercise or conversion; provided that if on such trading day there is no
Market Value of the Shares, the Market Value shall be the fair value per Share
on such trading day as computed by a method determined in good faith by the
Board of Directors of the Company.
SECTION 14. BOARD OF DIRECTOR ACTION; NO LIABILITY OF DIRECTORS,
OFFICERS, EMPLOYEES OR SHAREHOLDERS.
(a) Any determination that may be made by the Board of Directors of the
Company under this Agreement may be made by a duly authorized committee of the
Board.
(b) No director, officer, employee or shareholder of the Company, as such,
shall have any liability under this Agreement or the Warrants. By accepting the
Warrants, each holder of Warrants agrees to the foregoing.
SECTION 15. NOTICES TO WARRANT HOLDERS; WARRANT HOLDERS NOT SHAREHOLDERS.
(a) Upon any adjustment of the Exercise Price or of the number of Warrants
outstanding pursuant to Section 12, or a tender offer to purchase all or
substantially all of the Shares including any consideration other than common
stock or warrants, rights or options to acquire common stock, the Company within
20 days thereafter shall (i) cause to be filed with the Warrant Agent a
certificate of a firm of independent public accountants of recognized standing
selected by the Board of Directors of the Company (who may be the regular
auditors of the Company) setting forth the Exercise Price after such adjustment
and either the adjusted number of Shares (or fraction thereof) purchasable upon
exercise of a Warrant or the adjusted number of Warrants to be outstanding and
setting forth in reasonable detail the method of calculation and the facts upon
which the calculations are based, which certificate shall be conclusive evidence
of the correctness of the matters set forth therein, and (ii) cause notice of
such adjustment to be mailed by first-class mail, postage prepaid, to each
registered holder of a Warrant Certificate at his, her or its address appearing
on the Warrant Register.
(b) Upon the fixing of a later Expiration Date or a Warrant Call Date as
provided in Section 5, or the fixing of a Reduced Exercise Price and Reduced
Exercise Price Period as provided in Section 7, the Company shall cause notice
of such later Expiration Date, Warrant Call Date or Reduced Exercise Price and
Reduced Exercise Price Period, as the case may be, to be mailed by first-class
mail, postage prepaid, to each registered holder of a Warrant Certificate at
his, her or its address appearing on the Warrant Register.
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<PAGE> 14
(c) If:
(i) the Company shall authorize the issuance to all holders of
Shares of rights or warrants to subscribe for or purchase Shares or of any
other subscription rights or warrants; or
(ii) the Company shall authorize the distribution to all holders of
Shares of shares of its stock (other than Shares), evidences of its
indebtedness or assets (other than dividends or distributions in cash
payable out of consolidated earnings or earned surplus); or
(iii) of any consolidation or merger to which the Company is a party
and for which approval by holders of the Shares is required, or of the
conveyance or transfer of the properties and assets of the Company
substantially as an entirety, or of any reclassification or change of
Shares (other than a change in par value, if any, or as a result of a
subdivision or combination); or
(iv) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(v) the Company proposes to take any other action (other than
actions of the character described in Section 12(a)) that would require an
adjustment of the Exercise Price pursuant to Section 12;
then the Company shall cause to be filed with the Warrant Agent and shall cause
to be mailed to each registered holder of a Warrant Certificate at his, her or
its address appearing on the Warrant Register, at least 20 days (or 10 days in
any case specified in clause (i) or (ii) above) prior to the applicable record
date hereinafter specified, by first-class mail, postage prepaid, a written
notice stating (i) the date as of which the holders of record of Shares to be
entitled to receive any such rights, warrants or distribution are to be
determined or (ii) the date on which any such consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding up or other action is expected to
become effective and the date as of which it is expected that holders of record
of Shares shall be entitled to exchange their Shares for securities or other
property, if any, deliverable upon such reclassification, consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding up. If any action
referred to in this Section 15(c) requires the approval of holders of Shares,
the Company shall cause notice of the proposed action and the record date for
the determination of holders of Shares entitled to vote on such matter to be
mailed to each registered holder of a Warrant Certificate at his, her or its
address appearing on the Warrant Register, at least 20 days prior to such record
date, by first-class mail, postage prepaid.
(d) The failure to give any notice required by Section 15(c) or any defect
therein shall not affect the legality of any such reclassification,
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up referred to therein, or the vote upon any action.
(e) The failure to give any other notice required by this Agreement to be
given to any of the Warrant holders shall not affect the validity of any notice
given to any other Warrant holders, give rights to any of such Warrant holders
or affect the validity of the action referred to in such notice.
(f) Notices to Warrant holders shall be effective upon mailing.
(g) Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the holders thereof, as such,
the right to vote or receive dividends or to be deemed for any purpose the
holder of Shares or of any other securities of the Company
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<PAGE> 15
that may at any time be issuable on the exercise or conversion of the Warrant
Certificates, nor shall anything contained herein or in the Warrant Certificates
be construed to confer upon the holders thereof, as such, any of the other
rights of a shareholder of the Company.
SECTION 16. MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT.
(a) Any corporation into which the Warrant Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Warrant Agent shall be
a party, or any corporation succeeding to the corporate trust business of the
Warrant Agent, shall be the successor to the Warrant Agent hereunder without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that such corporation would be eligible for appointment
as a successor Warrant Agent under the provisions of Section 18. If such
successor to the Warrant Agent shall succeed to the agency created by this
Agreement, and if at the time of such succession any of the Warrant Certificates
have been countersigned but not delivered, any such successor to the Warrant
Agent may adopt the countersignature of the original Warrant Agent; and if at
the time of such succession any of the Warrant Certificates have been
countersigned, any successor to the Warrant Agent may countersign such Warrant
Certificates either in the name of the predecessor Warrant Agent or in the name
of the successor Warrant Agent; and in all such cases such Warrant Certificates
shall have full force and effect, as provided in the Warrant Certificates and in
this Agreement.
(b) If at any time the name of the Warrant Agent shall be changed and at
that time any of the Warrant Certificates shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior
name, and if at that time any of the Warrant Certificates shall not have been
countersigned, the Warrant Agent may countersign such Warrant Certificates
either in its prior name or in its changed name, and in all such cases such
Warrant Certificates shall have full force and effect, as provided in the
Warrant Certificates and in this Agreement.
SECTION 17. WARRANT AGENT. The Warrant Agent undertakes the duties and
obligations imposed on it by this Agreement, upon the following terms and
conditions, by all of which the Company and the holders of Warrants, by their
acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant Certificates shall
be taken as statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of any of the same except those which
describe the Warrant Agent or action taken or to be taken by it. The Warrant
Agent assumes no responsibility with respect to the distribution of the Warrant
Certificates except as provided herein.
(b) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of its covenants contained in this Agreement or in
the Warrant Certificates.
(c) The Warrant Agent may consult at any time with counsel satisfactory to
it (who may be counsel for the Company) and the Warrant Agent shall incur no
liability or responsibility to the Company or to any holder of any Warrant
Certificate in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or the advice of such counsel.
(d) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, Chief Executive Officer, President, any Vice President or
the Treasurer of the Company, and to apply to such officers for advice or
instructions in connection with the Warrant Agent's duties, and the
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<PAGE> 16
Warrant Agent shall not be liable for any action taken or suffered or omitted by
it in good faith in accordance with instructions of any such officer.
(e) Whenever in the performance of its duties under this Agreement the
Warrant Agent deems it necessary or desirable that any fact or matter be proved
or established by the Company prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof is herein
specifically prescribed) may be deemed to be conclusively proved and established
by a certificate signed by the Chairman of the Board, Chief Executive Officer,
President, any Vice President or the Treasurer of the Company and delivered to
the Warrant Agent; and such certificate shall be full authorization to the
Warrant Agent for any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
(f) The Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of any Warrant Certificate for any action taken in
reliance on any Warrant Certificate, certificate of shares, notice, resolution,
waiver, consent, order, certificate or other paper, document or instrument
believed by it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(g) The Company agrees to pay to the Warrant Agent reasonable compensation
for all services rendered by the Warrant Agent in the performance of this
Agreement, to reimburse the Warrant Agent for all expenses and other charges
incurred by the Warrant Agent in the execution of this Agreement and to
indemnify the Warrant Agent and save it harmless against any and all
liabilities, including judgments, costs and counsel fees, for anything done or
omitted by the Warrant Agent in the performance of this Agreement except as a
result of its negligence or bad faith.
(h) The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company furnishes the Warrant Agent with reasonable security
and indemnity for any costs and expenses that may be incurred, but this
provision shall not affect the power of the Warrant Agent to take such action as
it may consider proper, whether with or without any such security or indemnity.
(i) Except as otherwise required by law, the Warrant Agent, and any
stockholder, director, officer or employee of the Warrant Agent, may buy, sell
or deal in any of the Warrants or other securities of the Company or become
pecuniarily interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company or otherwise act as
fully and freely as though they were not the Warrant Agent under this Agreement,
or a stockholder, director, officer or employee of the Warrant Agent, as the
case may be. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any other person or entity.
(j) The Warrant Agent shall act hereunder solely as Agent for the Company
and its duties shall be determined solely by the provisions hereof. The Warrant
Agent shall not be liable for anything that it may do or refrain from doing in
connection with this Agreement except for its own negligence or bad faith.
(k) The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of any Warrant Certificate to make or cause to be
made any adjustment of the Exercise Price, the number of the Shares or other
securities or property deliverable as provided in this Agreement or the number
of Warrants, to determine whether any facts exist that may require any of such
adjustments, with respect to the nature or extent of any such adjustment, when
made, or with respect to the method employed in making the same. The Warrant
Agent shall not be accountable with respect to the validity or value or the kind
or amount of any Shares or of any
13
<PAGE> 17
securities or property that may at any time be issued or delivered upon the
exercise of any Warrant or at the expiration of the period during which the
Warrants are exercisable for any unexercised Warrant or with respect to whether
any such Shares or other securities will when issued be validly issued and fully
paid and nonassessable, and it makes no representation with respect thereto.
SECTION 18. CHANGE OF WARRANT AGENT. If the Warrant Agent becomes
incapable of acting as Warrant Agent, or if the Warrant Agent resigns as Warrant
Agent (which it may do only upon 30 days prior written notice to the Company),
the Company shall appoint a successor to the Warrant Agent. If the Company fails
to make such an appointment within a period of 30 days after it has been
notified in writing of the incapacity or resignation by the Warrant Agent or by
the registered holder of a Warrant Certificate, then the registered holder of
any Warrant Certificate may apply to any court of competent jurisdiction for the
appointment of a successor to the Warrant Agent. Pending appointment of a
successor to the Warrant Agent, either by the Company or by such a court, the
duties of the Warrant Agent shall be carried out by the Company. Any successor
Warrant Agent, whether appointed by the Company or by such a court, shall be a
bank or trust company, in good standing, incorporated under the laws of a State
or of the United States of America and having an office in the State of New
York, and must have at the time of its appointment as Warrant Agent a combined
capital and surplus of at least $50,000,000. After appointment, the successor
Warrant Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without
further act or deed; but the former Warrant Agent shall deliver and transfer to
the successor Warrant Agent any property at the time held by it hereunder and
execute and deliver any further assurance, conveyance, act or deed necessary for
the purpose of such succession. The Company shall cause notice of the
appointment of any successor Warrant Agent to be mailed by first-class mail,
postage prepaid, to each registered holder of a Warrant Certificate at his, her
or its address appearing on the Warrant Register. Failure to give any notice
provided for in this Section 18, or any defect therein, shall not, however,
affect the legality or validity of the appointment of a successor Warrant Agent.
SECTION 19. ISSUANCE OF NEW WARRANT CERTIFICATES. Notwithstanding any of
the provisions of this Agreement or of the Warrants to the contrary, the Company
may, at its option, issue new Warrant Certificates evidencing Warrants in such
form as may be approved by its Board of Directors to reflect any adjustment or
change in the Exercise Price and the number or kind or class of shares of stock
or other securities or property purchasable under the Warrant Certificates made
in accordance with the provisions of this Agreement.
SECTION 20. NOTICES TO COMPANY AND WARRANT AGENT.
(a) Any notice pursuant to this Agreement to be given by the Warrant Agent
or by the registered holder of any Warrant Certificate to the Company shall be
sufficiently given if sent by first-class mail, postage prepaid, and by
facsimile transmission addressed to the Company as follows:
Del Webb Corporation
6001 24th Street
Phoenix, Arizona 85016
Fax: (602) 808-8097
Attention: General Counsel
(or to such other address and facsimile number as the Company may have furnished
in writing to the Warrant Agent for this purpose).
14
<PAGE> 18
(b) Any notice pursuant to this Agreement to be given by the Company or by
any registered holder of any Warrant Certificate to the Warrant Agent shall be
sufficiently given if sent by first-class mail, postage prepaid, and by
facsimile transmission addressed to the Warrant Agent as follows:
______________________________
______________________________
New York, New York____________
Fax: (212)___________________
Attention:____________________
(or to such other address and facsimile number as the Warrant Agent may have
furnished in writing to the Company for this purpose).
(c) No notice to the Company or the Warrant Agent shall be effective until
received.
SECTION 21. IDENTITY OF TRANSFER AGENT. Forthwith upon the appointment of
any subsequent transfer agent for the Shares, or any other shares of the
Company's capital stock issuable upon the exercise of the Warrants, the Company
will file with the Warrant Agent a statement setting forth the name and address
of such subsequent transfer agent.
SECTION 22. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant Agent
may from time to time supplement or amend this Agreement without the approval of
any holders of Warrant Certificates in order to cure any ambiguity, to correct
or supplement any provision contained herein that may be defective or
inconsistent with any provisions herein or to make any other provisions in
regard to matters or questions arising hereunder that the Company and the
Warrant Agent may deem necessary or desirable and that shall not adversely
affect the interests of the holders of Warrant Certificates.
SECTION 23. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 24. TERMINATION. This Agreement shall terminate at the close of
business 30 days after the Expiration Date. Notwithstanding the foregoing, this
Agreement will terminate on any earlier date when all Warrants have been
exercised or redeemed or otherwise acquired by the Company. The provisions of
Sections 14 and 17 shall survive such termination.
SECTION 25. GOVERNING LAW. This Agreement and each Warrant Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of New York, other than its laws pertaining to choice or conflict of laws,
and for all purposes shall be construed in accordance with the laws of said
State.
SECTION 26. BENEFITS OF THIS AGREEMENT. Except as provided in Section
14(b), nothing in this Agreement shall be construed to give to any person or
corporation other than the Company, the Warrant Agent and the registered holders
of the Warrant Certificates any legal or equitable right, remedy or claim under
this Agreement; and this Agreement shall be for the sole and exclusive benefit
of the Company, the Warrant Agent and the registered holders of the Warrant
Certificates.
SECTION 27. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of such counterparts shall for all purposes be deemed to be
an original and all such counterparts shall together constitute but one and the
same agreement.
15
<PAGE> 19
[SECTION 28. CONVERSION OF WARRANTS AT EXPIRATION OF EXERCISE PERIOD.
(a) At the expiration of the period during which the Warrants are
exercisable, unexercised Warrants which immediately prior to such expiration
were exercisable for Shares shall be converted into Shares as follows: the
Company shall issue and cause to be distributed to the registered holders of
record of the Warrant Certificates evidencing such Warrants, against receipt of
the Warrant Certificates in question, certificates for one Share for each of
such unexercised Warrants. Each time, if any, that the number of Shares
purchasable upon the exercise of Warrants is adjusted pursuant to Section 12(b),
the rate at which Shares will be issued upon such conversion shall be adjusted
in order that the total number of Shares to be issued for each such unexercised
Warrant shall equal 1/__th of the number of Shares (determined without regard to
subsection (b) of Section 13) purchasable upon the exercise of a Warrant
immediately after such adjustment.
(b) Notwithstanding Section 28(a), the Company shall not be required to
issue fractional Shares or to distribute Share certificates that evidence
fractional Shares. In lieu of issuing fractional Shares, the number of Shares to
which a registered holder of Warrant Certificates shall be entitled upon
conversion of the Warrants shall be rounded to the nearest whole Share.
(c) The issuance of Shares pursuant to this Section 28 shall be subject to
the provisions of this Agreement and Shares issued upon the expiration of
Warrants shall be entitled to vote, to receive dividends and to have other
rights of shares of [Series __ Preferred] [Common] Stock of the Company.]
The parties have caused this Agreement to be duly executed, confirming
their agreements set forth above.
DEL WEBB CORPORATION
By:________________________________
Name:
Title:
Attest:
______________________
Name:
Title:
[Warrant Agent]
________________________________
By:________________________________
Name:
Title:
[SEAL]
Attest:
_____________________
Name:
Title:
16
<PAGE> 20
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[FACE]
EXERCISABLE ONLY ON OR BEFORE _, _
(OR SUCH EARLIER OR LATER DATE AS MAY BE
FIXED UPON NOTICE AS PROVIDED IN THE
WARRANT AGREEMENT REFERRED TO BELOW)
THE WARRANTS EVIDENCED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN UNITS
WITH __% [SENIOR] SUBORDINATED [CONVERTIBLE] [DEBENTURES] [NOTES] OF THE
COMPANY ("UNITS"). EACH UNIT CONSISTS OF $1,000 PRINCIPAL AMOUNT OF SUCH
[DEBENTURES] [NOTES] AND __ WARRANTS (EACH TO PURCHASE ONE SHARE OF
[SERIES ___ PREFERRED] [COMMON] STOCK OF THE COMPANY). UNTIL _______ 199 .
OR SUCH EARLIER DATE AS MAY BE DETERMINED BY THE COMPANY WITH THE CONSENT
OF ____________, THE WARRANTS EVIDENCED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED WITHOUT THE SIMULTANEOUS TRANSFER TO THE TRANSFEREE OF $1,000
PRINCIPAL AMOUNT OF SUCH [DEBENTURES] [NOTES] FOR _____ WARRANTS SO
TRANSFERRED.
NO. _____ _____ WARRANTS
WARRANT CERTIFICATE
DEL WEBB CORPORATION
This Warrant Certificate certifies that _________, or registered assigns,
is the registered holder of ___ Warrants (the "Warrants") expiring ____,__ (or
such earlier or later date as may be fixed under the circumstances set forth in
the Warrant Agreement and described on the reverse hereof) to purchase Common
Stock of Del Webb Corporation, a Delaware corporation (the "Company"). Each
Warrant entitles the holder to purchase from the Company on or before the close
of business on ____,__ (or such earlier or later date as may be fixed under the
circumstances set forth in the Warrant Agreement and described on the reverse
hereof), one fully paid and nonassessable share of [Series ___ Preferred]
[Common] Stock of the Company at the exercise price (the "Exercise Price") in
effect at the time under the Warrant Agreement ($___ per share at the time of
the initial issuance of the Warrants), payable in lawful money of the United
States of America, [by delivery of __% [Senior] Subordinated [Convertible]
[Debentures] [Notes] of the Company or by a combination thereof,] upon surrender
of this Warrant Certificate and payment of such Exercise Price at the corporate
trust office of the Warrant Agent in the State of New York, but subject to the
conditions set forth herein and in the Warrant Agreement; provided, however,
that the number or kind of shares (or in certain events other property)
purchasable upon exercise of the Warrants and the Exercise Price may as of the
date of this Warrant Certificate have been, or may after such date be, adjusted
as a result of the occurrence of certain events, as more fully provided in the
Warrant Agreement. Payment of the [portion of the] Exercise Price [payable in
cash] shall be made by cashier's check payable to the order of the Company.
A-1
<PAGE> 21
No Warrant may be exercised after the close of business on ____,__ or
such earlier or later date as may be fixed under the circumstances set forth in
the Warrant Agreement and described on the reverse hereof (the "Expiration
Date"). [At the expiration of the period during which this Warrant is
exercisable, this Warrant, if immediately prior to such expiration it is
exercisable for shares of [Series ___ Preferred] [Common] Stock of the Company
or of any other class into which such Stock may hereafter be changed, shall be
converted into such shares at the rate of one share for each ___ Warrants,
subject to adjustment, as more fully provided in the Warrant Agreement.]
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent by the manual signature of one of its authorized officers.
Del Webb Corporation and the Warrant Agent have caused this Warrant
Certificate to be duly executed as of the date first above written, in the State
of New York.
DEL WEBB CORPORATION
Dated:
By:_____________________________
Attest:
_______________________
Countersigned:
_______________________
as Warrant Agent
By_______________________
Authorized Officer
Void after ____,__ or such earlier or later date as may be fixed under the
circumstances set forth in the Warrant Agreement and described on the reverse
hereof.
A-2
<PAGE> 22
[FORM OF WARRANT CERTIFICATE]
[REVERSE]
DEL WEBB CORPORATION
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to a Warrant Agreement dated as of
____, 199_ (the "Warrant Agreement"), between the Company and
__________________, Warrant Agent (the "Warrant Agent"), which Warrant
Agreement is hereby incorporated by reference in and made a part of this Warrant
Certificate and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Warrant Agent, the Company and the holders of the Warrants.
None of the directors, officers, employees or shareholders of the Company,
as such, have any liability in respect of the Warrant Agreement, the Warrants or
this Warrant Certificate. By accepting the Warrants and this Warrant
Certificate, the holder hereof agrees to the foregoing.
The holder of Warrants evidenced by this Warrant Certificate may exercise
them by surrendering the Warrant Certificate, with the Form of Exercise set
forth hereon properly completed and executed, together with payment of the
Exercise Price at the time in effect, at the principal corporate trust office of
the Warrant Agent in the State of New York. If upon any exercise of Warrants
evidenced hereby the number of Warrants exercised shall be less than the total
number of Warrants evidenced hereby, there shall be issued to the holder hereof
or his, her or its assignee a new Warrant Certificate evidencing the number of
Warrants not exercised. No adjustment will be made for any dividends on any
Shares issuable upon exercise of this Warrant.
If the closing price per share for the shares of [Series ___ Preferred]
[Common] Stock of the Company (the "Shares") (determined as provided in the
Warrant Agreement) is greater than __% of the Exercise Price as then in effect
for any __ New York Stock Exchange trading days within a period of __
consecutive New York Stock Exchange trading days, the Company may elect, by
written notice given as provided in the Warrant Agreement, within ___ days after
the end of such __ -day period, to redeem the Warrant on a date not less than
days after the giving of such notice, but in no event earlier than _______, ___
(the "Warrant Call Date"). The notice of such Warrant Call Date shall be given
to the Warrant Agent as provided in Section 20 of the Warrant Agreement and
copies of such notice shall be mailed to the registered holders of the Warrant
Certificates as provided in Section 15 of the Warrant Agreement. Neither the
Company nor the Warrant Agent is required to pay any tax or taxes that may be
payable in respect of any transfer involved in the issuance of any Warrant
Certificates or certificates for other securities of the Company, in any name
other than that of the registered holder of this Warrant Certificate, upon the
exercise or transfer (or partial exercise or transfer) of the Warrants
represented hereby, and neither the Company nor the Warrant Agent shall be
required to issue or deliver any such certificates unless and until the persons
requesting the issuance thereof have paid to the Company the amount of such tax
or have established to the satisfaction of the Company that such tax has been
paid.
The Expiration Date may be extended by the Company in its sole discretion
from time to time by a notice given to the Warrant Agent and mailed to the
registered holders of the Warrant Certificates.
The Warrant Agreement provides that upon the occurrence of certain events
the Exercise Price may, subject to certain conditions, be adjusted and under
certain circumstances the Warrant may become exercisable for securities or other
assets other than the Shares referred to on the face hereof. If the Exercise
Price is adjusted, the Warrant Agreement provides that, at the
A-3
<PAGE> 23
election of the Company, either (i) the number of Shares purchasable upon the
exercise of each Warrant shall be adjusted or (ii) each outstanding Warrant
shall be adjusted to become a different number of Warrants. In the case of (i),
the rate at which Shares are to be issued upon conversion of Warrants at the
expiration of the period during which the Warrants are exercisable shall also be
adjusted. In the case of (ii), the Company will cause to be distributed to
registered holders of Warrant Certificates either Warrant Certificates
representing the additional Warrants issuable pursuant to the adjustment or
substitute Warrant Certificates to replace all outstanding Warrant Certificates
upon surrender thereof.
The Warrant Certificate is transferable, in whole or in part (but not
prior to ______, __ except as part of the transfer of the Units of [Debt
Securities] and Warrants in which they were issued ("Units")), on the register
maintained by the Warrant Agent for such purpose, upon surrender of this Warrant
Certificate at the principal corporate trust office of the Warrant Agent,
together with a written assignment of the Warrant Certificate, on the Form of
Assignment set forth hereon or in other form satisfactory to the Warrant Agent,
duly executed by the holder or his, her or its duly appointed legal
representative, together with funds to pay any transfer taxes payable in
connection with such transfer. Upon such surrender and payment, a new Warrant
Certificate shall be issued and delivered, in the name of the assignee and in
the denomination or denominations specified in such instrument of assignment. If
less than all of this Warrant Certificate is being transferred, a new Warrant
Certificate or Certificates shall be issued for the portion of this Warrant
Certificate not being transferred.
This Warrant Certificate may be divided or combined with other Warrant
Certificates (but not prior to ______, __ except as part of the division or
combination of Units) upon surrender hereof at the principal corporate trust
office of the Warrant Agent, together with a written notice specifying the names
and denominations in which new Warrant Certificates are to be issued, signed by
the holder hereof or his, her or its duly appointed legal representative,
together with the funds to pay any transfer taxes payable in connection with
such transfer. Upon such surrender and payment, a new Warrant Certificate or
Certificates shall be issued and delivered in accordance with such notice.
The Company shall make no service or other charge in connection with any
such transfer or exchange of this Warrant Certificate, except for any transfer
taxes payable in connection therewith.
The Company and the Warrant Agent may deem and treat the registered holder
hereof as the absolute owner of this Warrant Certificate (notwithstanding any
notation of ownership or other writing hereon made by anyone) for the purpose of
any exercise or conversion hereof, any distribution to the holder hereof and,
without limitation, for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
Time is of the essence in this Warrant. Signatures on exercises and
assignments of this Warrant must, unless waived by the Company, be guaranteed.
A-4
<PAGE> 24
[FORM OF EXERCISE]
(TO BE EXECUTED UPON EXERCISE OF WARRANT)
The undersigned hereby irrevocably exercises the right, represented by
this Warrant Certificate, to purchase __ Shares, and herewith tenders payment
for such Shares to the order of Del Webb Corporation (the "Company") in the
amount of $________ [by cashier's check] [and] [delivers $_____ principal amount
of the __% [Senior] Subordinated [Debentures] [Notes] (the "Debt Securities") of
the Company issued pursuant to an Indenture dated as of_____, 199_ between the
Company and _________________, Trustee, in accordance with the terms thereof].
The undersigned requests that a certificate for such Shares be registered in the
name of ___________________, whose address is _____________________. If that
number of Shares is less than all of the Shares purchasable hereunder, the
undersigned requests that a new Warrant Certificate representing the remaining
balance of the Shares be registered in the name of _____________________, whose
address is ______________________, and that such Warrant Certificate be
delivered to ___________________, whose address is _____________________. [If
the principal amount of Debt Securities delivered herewith is in excess of the
amount of the payment tendered herewith, rounded down to the nearest multiple of
$1,000, the undersigned requests that the Warrant Agent instruct the Trustee to
issue Debt Securities representing such excess principal amount of the Debt
Securities delivered herewith, registered in the name of ______________________,
whose address is _____________________, and that such new Debt Securities be
delivered to _____________________, whose address is _____________________.] Any
cash payments to be paid in lieu of fractional Shares should be made to
_____________________, whose address is _____________________ and the check
representing payment thereof should be delivered to _____________________, whose
address is _____________________.
Dated:
Signature: _____________________________________
(Signature must conform in all respects to name
in which the certificate for the shares is to be
registered.)
_______________________________
(Insert Social Security or
Taxpayer Identification Number
of Holder)
Signature Guaranteed:
_______________________________
A-5
<PAGE> 25
[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER THE WARRANT CERTIFICATE.)
For value received, __________ hereby sells, assigns and transfers unto __
________________________________________________________________________________
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and hereby irrevocably constitutes and appoints the Warrant Agent and the
Company, and each of them, with full power of substitution, as his, her or its
attorneys-in-fact, with full power of substitution to transfer the within
Warrant Certificate on the books of the Company.
Dated:
Signature:______________________________________
(Signature must conform in all respects to name in
which the certificate for the shares is to be
registered.)
_________________________________
(Insert Social Security or
Taxpayer Identification Number
of Holder)
Signature Guaranteed:
__________________________________
A-6
<PAGE> 1
EXHIBIT 4.5
CERTIFICATE OF DESIGNATION[, POWERS, PREFERENCES AND RELATIVE PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS, AND THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS] OF THE ___% [NONCUMULATIVE] [CUMULATIVE] [REDEEMABLE]
[NON-REDEEMABLE] [CONVERTIBLE] [EXCHANGEABLE] PREFERRED STOCK, SERIES ___
($.001 Par Value) *
OF
DEL WEBB CORPORATION
_____________
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
_____________
The undersigned hereby certify that the following resolution was duly
adopted by the Board of Directors of Del Webb Corporation, a Delaware
corporation (the "Company"), with respect to the [name of series of Preferred
Stock]:
RESOLVED, That pursuant to the authority conferred upon the Board of
Directors by the Amended and Restated Certificate of Incorporation of the
Company (the "Certificate of Incorporation"), the Board of Directors (the
"Board") of the Company on _____, 199__ approved the creation and the voting
powers of the following series of Preferred Stock, $.001 par value [, and on
_____, 199_ a duly authorized committee of the Board adopted the following
resolution creating a series of ______ shares of Preferred Stock, $.001 par
value] (the "Series _______ Preferred Stock"), with the powers, designations,
preferences and relative, participating, optional or other special rights, and
the qualifications, limitations or restrictions thereof, of the shares of such
series (in addition to the powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, set forth in the Certificate of
Incorporation that may be applicable to the Preferred Stock), as follows:
1. Designation and Rank. The designation of such series of the Preferred
Stock authorized by this resolution shall be the ___% [Noncumulative]
[Cumulative] [Redeemable] [Non-Redeemable] [Convertible] Preferred Stock, Series
__ (the "Series ___ Preferred Stock"). The maximum number of shares of Series
____ Preferred Stock shall be _____. Shares of the Series ___ Preferred Stock
shall have a liquidation preference of $___ per share. The Series ___ Preferred
Stock shall rank prior to the Company's Common Stock and to all other classes
and series of equity securities of the Company now or hereafter authorized,
issued or outstanding (the Common Stock and such other classes and series of
equity securities collectively may be referred to herein as the "Junior Stock"),
other than any classes or series of equity securities of the Company ranking on
a parity with (the "Parity Stock") or senior to (the "Senior Stock") the Series
___ Preferred Stock as to dividend rights and rights upon liquidation, winding
up or dissolution of the Company as have been [or may in the future] be
designated by the Board. The
_________________
* Language in brackets in this form of Certificate of Designations may or may
not be included in the final Certificate of Designations. Appropriate
disclosure will be made in the Prospectus Supplement of which alternate terms
have been selected and the final Certificate of Designations will be filed as
an Exhibit to an 8-K or other periodic report.
<PAGE> 2
Series ___ Preferred Stock shall be junior to all outstanding debt of the
Company. The Series ___ Preferred Stock shall be subject to creation of Senior
Stock, Parity Stock and Junior Stock, to the extent not expressly prohibited by
the Company's Certificate of Incorporation, with respect to the payment of
dividends and upon liquidation, and shall be initially issued at a price
(payable by the underwriter(s) thereof) of $___ per share.
2. [Noncumulative] [Cumulative] Dividends; Priority.
(a) Payment of Dividends. The holders of record of shares of Series ___
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board out of funds legally available therefor, [noncumulative] [cumulative] cash
dividends at the rate per annum per share of ____% ($___ per annum) (the
"Dividend Rate"), which shall accrue from ____, 19__ and be payable _______ [in
arrears] on the __ day of ____, _____, ____ and ____ in each year (or if such
day is a non-business day, on the next business day), commencing on
____________, 19__ (each of such dates a "Dividend Payment Date"). Each declared
dividend shall be payable to holders of record as they appear on the stock books
of the Company at the close of business on such record dates, not more than 60
calendar days preceding the payment dates therefor, as are determined by the
Board (each of such dates a "Record Date"). ____ dividend periods (each a
"Dividend Period") shall commence on and include the __ day of __, ____,__ and
____ of each year and shall end on and include the date next preceding the next
following Dividend Payment Date. [If cumulative, insert -- Dividends on the
Shares of Series ____ Preferred Stock shall be fully cumulative, shall accrue
(whether or not declared) from the first day of each Dividend Period and shall
be payable on the Dividend Payment Date first succeeding the end of each
Dividend Period, except that with respect to the first dividend, such dividend
shall accrue from the date of issue of the Series ____ Preferred Stock. For any
Dividend Period in which dividends are not paid in cash at the Dividend Rate on
the Dividend Payment Date first succeeding the end of such Dividend Period, such
accrued dividends shall be added (solely for the purpose of calculating
dividends payable on the Series ___ Preferred Stock) to the Liquidation
Preference (as defined below) of the Series ___ Preferred Stock effective at the
beginning of the Dividend Period succeeding the Dividend Period as to which such
dividends were not paid and shall thereafter accrue additional dividends in
respect thereof ("Additional Dividends") at the Dividend Rate applicable from
time to time until such unpaid dividends have been paid in full.]
[If Noncumulative, insert -- Dividends on the shares of Series ___
Preferred Stock shall be noncumulative, so that if a dividend on the shares of
Series ___ Preferred Stock with respect to any Dividend Period is not declared
by the Board of the Company, then the Company shall have no obligation at any
time to pay a dividend on the shares of Series ___ Preferred Stock in respect of
such Dividend Period. Holders of the shares of the Series ___ Preferred Stock
shall not be entitled to any dividends, whether payable in cash, property or
stock, in excess of the noncumulative dividends declared by the Board, as set
forth herein.]
The amount of dividends payable per share for each full Dividend Period
shall be computed by dividing by ____ the $____ annual amount. Dividends on the
Series ___ Preferred Stock shall accrue day by day, and all shares issued within
45 days of the first day on which such shares are issued shall accrue dividends
from such date of first issuance. The initial __ dividend payable on ______,
19__ and the amount of any dividend payable for any other period shorter than a
full Dividend Period shall be computed on the basis of a 360-day year composed
of twelve 30-day months and the actual number of days elapsed in the Period.
(b) Priority as to Dividends. No full dividends shall be declared or
paid or set apart for payment on Preferred Stock of any series ranking, as to
dividends, on a parity with the Series ___ Preferred Stock for any period unless
full dividends on the Series ___ Preferred Stock for the immediately preceding
Dividend Period have been or contemporaneously are declared and paid (or
declared and a sum sufficient for the payment thereof set apart for such
payment).
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<PAGE> 3
When dividends are not paid in full (or declared and a sum sufficient for such
full payment so set apart) upon the Series ___ Preferred Stock and any other
Preferred Stock ranking on a parity as to dividends with the Series ___
Preferred Stock, all dividends declared upon shares of Series ___ Preferred
Stock and any other Preferred Stock ranking on a parity as to dividends shall be
declared pro rata with respect thereto, so that in all cases the amount of
dividends declared per share on the Series ___ Preferred Stock and such other
Preferred Stock shall bear to each other the same ratio that accrued dividends
for the then-current Dividend Period per share on the shares of Series ___
Preferred Stock (which shall not include any accumulation in respect of unpaid
dividends for prior Dividend Periods) and for dividends, including
accumulations, if any, of such other Preferred Stock, bear to each other.
Except as provided in the preceding sentence, full dividends on the
Series ___ Preferred Stock must be declared and paid or set apart for payment
for the immediately preceding Dividend Period before (i) any cash dividend or
other distribution (other than in Common Stock or other Junior Stock) shall be
declared or paid or set aside for payment upon the Common Stock of the Company
or any other Junior Stock or (ii) any Common Stock or any other Junior Stock is
redeemed, purchased or otherwise acquired by the Company for any consideration
(or any moneys are paid to or made available for a sinking fund for the
redemption of any shares of any such stock) except by conversion into or
exchange for Junior Stock or (iii) any Series ___ Preferred Stock or Parity
Stock is redeemed, purchased or otherwise acquired by the Company for any
consideration (or any moneys are paid to or made available for a sinking fund
for the redemption of any shares of any such stock) otherwise than pursuant to a
pro rata offer to purchase or a concurrent redemption of all, or a pro rata
portion, of the outstanding shares of Series ___ Preferred Stock and Parity
Stock (except by conversion into or exchange for Junior Stock).
The Company shall not permit any subsidiary of the Company to purchase
or otherwise acquire for consideration any shares of stock of the Company if,
under the preceding paragraph, the Company would be prohibited from purchasing
or otherwise acquiring such shares at such time and in such manner.
3. [[Optional] [Mandatory] Redemption] [Non-Redeemability].
(a) General. [If Optional Redemption, insert -- The shares of the Series
___ Preferred Stock will not be redeemable before _______________, ____.
Thereafter, subject to the applicable restrictions in this Section 3 and
applicable law, the shares of Series ___ Preferred Stock may be redeemed, in
whole or in part, at the election of the Company, upon notice as provided in
Section 3(b), by resolution of its Board, at any time or from time to time, at
the following redemption prices plus, in each case, an amount equal to all
accrued and unpaid dividends for the then-current Dividend Period to the date
fixed for redemption:
<TABLE>
<CAPTION>
If Redeemed
During the Per Share If Redeemed During the Per Share
12-Month Period Redemption 12-Month Period Ending Redemption
Ending on , Price on , Price
___________ ___________ _____________________ __________
<S> <C> <C> <C>
199__ $ 200__ $
199__ 200__
200__ 200__
200__ and thereafter
</TABLE>
3
<PAGE> 4
If less than all the outstanding shares of Series ___ Preferred Stock
are to be redeemed, the Company shall select those to be redeemed pro rata, by
lot or by a substantially equivalent method. On and after the redemption date,
dividends shall cease to accrue on the shares, and they shall be deemed to cease
to be outstanding, provided that the redemption price (including any accrued and
unpaid dividends to the date fixed for redemption) has been duly paid or
provided for.]
[If mandatory redemption, insert -- As a mandatory redemption for the
retirement of the shares of Series Preferred Stock, the Company shall redeem,
out of funds legally available therefor, on _____________ (if such shares remain
outstanding) __% of all shares issued [then outstanding], in each case at the
redemption price of $____ per share. Immediately prior to authorizing or making
such redemption with respect to the Series ____ Preferred Stock, the Company, by
resolution of the Board shall, to the extent funds are legally available
therefor, declare a mandatory dividend on the Series ____ Preferred Stock
payable on the redemption date in the amount equal to any accrued and unpaid
dividends on the Series ____ Preferred Stock as of such date and, if the Company
does not have sufficient funds legally available to declare and pay all
dividends accrued at the time of such redemption, any remaining accrued and
unpaid dividends shall be added to the redemption price. If the Company shall
fail to discharge its obligation to redeem all of the outstanding shares of
Series ____ Preferred Stock required to be redeemed pursuant to this Section
3(a) of this Certificate (the "Mandatory Redemption Obligation"), the Mandatory
Redemption Obligation shall be discharged as soon as the Company is able to
discharge such Mandatory Redemption Obligation. If and so long as the Mandatory
Redemption Obligation shall not fully be discharged, (i) dividends on the Series
____ Preferred Stock shall continue to accrue and be added to the dividend
payable pursuant to the second preceding sentence and (ii) the Company shall not
declare or pay any dividend or make any distribution on its securities not
otherwise permitted by this Certificate.
[If Non-Redeemable, insert -- The shares of the Series ___ Preferred
Stock shall not be redeemed by the Company.]
[If optional or mandatory redemption, insert -- (b) Notice of
Redemption. Notice of any redemption, setting forth (i) the date and place fixed
for the redemption, (ii) the redemption price[,] [and] (iii) a statement that
dividends on the shares to be redeemed will cease to accrue on such redemption
date [and (iv) a statement of or reference to the conversion right set forth in
Section 5 hereof (including that the right to give a notice of conversion in
respect of any shares to be redeemed shall terminate at the close of business on
the redemption date)], shall be mailed, postage prepaid, at least __ days but
not more than __ days prior to the redemption date to each holder of record of
the Series ___ Preferred Stock to be redeemed at his, her or its address as the
same shall appear on the books of the Company. If less than all the shares of
the Series ___ Preferred Stock owned by such holder are then to be redeemed, the
notice shall specify the number of shares thereof that are to be redeemed and
the numbers of the certificates representing such shares.
If such notice of redemption shall have been so mailed, and if on or
before the redemption date specified in such notice all funds necessary for such
redemption shall have been set aside by the Company separate and apart from its
other funds, in trust for the account of the holders of the shares so to be
redeemed, so as to be and continue to be available therefor, then, on and after
the redemption date, notwithstanding that any certificate for shares of the
Series ___ Preferred Stock so called for redemption shall not have been
surrendered for cancellation, the shares represented thereby so called for
redemption shall be deemed to be no longer outstanding, the dividends thereon
shall cease to accrue and all rights with respect to such shares of the Series
___ Preferred Stock so called for redemption shall forthwith cease and
terminate, [including the right to convert such shares pursuant to Section 5
below,] except only the right of the holders thereof to receive out of the funds
so set aside in trust the amount payable on redemption
4
<PAGE> 5
thereof, but without interest, upon surrender (and endorsement or assignment for
transfer, if required by the Company) of their certificates.
However, if the notice of redemption shall have been so mailed, and if
prior to the date of redemption specified in the notice all funds necessary for
the redemption have been irrevocably deposited in trust, for the account of the
holders of the shares of the Series ___ Preferred Stock to be redeemed (and so
as to be and continue to be available therefor), with a bank or trust company
named in such notice doing business in the States of _________ or _________ and
having capital surplus and undivided profits of at least [$50,000,000],
thereupon and without awaiting the redemption date, all shares of the Series ___
Preferred Stock with respect to which such notice shall have been so mailed and
such deposit shall have been so made shall be deemed to be no longer outstanding
and all rights with respect to such shares of the Series ___ Preferred Stock
shall forthwith upon such deposit in trust cease and terminate, [except only the
right of the holders thereof to convert such shares in accordance with the
provisions of Section 5 hereof at any time prior to the close of business on the
redemption date,] and the right of the holders thereof on or after the
redemption date to receive from such deposit the amount payable upon the
redemption, but without interest, upon surrender (and endorsement or assignment
to transfer, if required by the Company) of their certificates. In case the
holders of shares of the Series ___ Preferred Stock that shall have been
redeemed shall not within [two] years (or any longer period if required by law)
after the redemption date claim any amount so deposited in trust for the
redemption of such shares, such bank or trust company shall, upon demand and if
permitted by applicable law, pay over to the Company any such unclaimed amount
so deposited with it, and shall thereupon be relieved of all responsibility in
respect thereof, and thereafter the holders of such shares shall, subject to
applicable escheat laws, look only to the Company for payment of the redemption
price thereof, but without interest.
(c) Status of Shares Redeemed [or Converted]. Shares of Series ___
Preferred Stock redeemed, purchased or otherwise acquired for value by the
Company, [including by conversion in accordance with Section 5 hereof,] shall,
after such acquisition, have the status of [authorized and unissued shares of
Preferred Stock] [Treasury Stock] [and may be reissued by the Company at any
time as shares of any series of Preferred Stock other than as shares of Series
___ Preferred Stock].
4. Voting Rights.
(a) General. Except as expressly provided hereinafter in this Section 4,
or as otherwise from time to time required by applicable law, the Series ___
Preferred Stock shall have no voting rights.
(b) Voting Rights Upon Dividend Arrearages.
(i) Right to Elect Directors. If [an amount equal to] [six]
[consecutive] quarterly dividend payments on the Series ___ Preferred Stock have
accrued and are unpaid, the holders of the Series ___ Preferred Stock shall have
the right, voting separately as a class together with holders of shares of any
Parity Stock upon which like voting rights have been conferred and are
exercisable ("Voting Parity Stock"), to elect [two] members of the Board, each
member to be in addition to the then authorized number of directors, at the next
annual meeting of stockholders or at a special meeting called as described below
and thereafter until dividends on the Series ___ Preferred Stock have been paid
in full for ____ [consecutive] Dividend Periods, including the last preceding
Dividend Period.
(ii) Special Meeting. Whenever such right shall vest, it may be
exercised initially by the vote of the holders of a [plurality] [majority] of
the shares of Series ___ Preferred Stock and Voting Parity Stock present and
voting, in person or by proxy, at a special meeting of
5
<PAGE> 6
holders of the Series ___ Preferred Stock and Voting Parity Stock or at the next
annual meeting of stockholders. A special meeting for the exercise of such right
shall be called by the Secretary of the Company as promptly as possible, and in
any event within l0 days after receipt of a written request signed by the
holders of record of at least 25% of the outstanding shares of the Series ___
Preferred Stock, subject to any applicable notice requirements imposed by law or
regulation. Notwithstanding the provisions of this paragraph, no such special
meeting shall be required to be held during the [90]-day period preceding the
date fixed for the annual meeting of stockholders.
(iii) Term of Office of Directors. Any director who has been
elected by holders of the Series ___ Preferred Stock and Voting Parity Stock
entitled to vote in accordance with this subparagraph (b) shall hold office for
a term expiring (subject to the earlier payment, or declaration and setting
aside for payment, of dividends on the Series ___ Preferred Stock for __
consecutive Dividend Periods as described below) at the next annual meeting of
stockholders and during such term may be removed at any time, either for or
without cause, by, and only by, the affirmative vote of the holders of record of
a majority of the shares of the Series ___ Preferred Stock and Voting Parity
Stock present and voting, in person or by proxy, at a special meeting of such
stockholders called for such purpose, and any vacancy created by such removal
may also be filled at that meeting. A meeting for the removal of a director
elected by the holders of the Series ___ Preferred Stock and Voting Parity Stock
and the filling of the vacancy created thereby shall be called by the Secretary
of the Company as promptly as possible and in any event within 10 days after
receipt of a request therefor signed by the holders of not less than 25% of the
outstanding shares of the Series ___ Preferred Stock, subject to any applicable
notice requirements imposed by law or regulation. Such meeting shall be held at
the earliest practicable date thereafter, provided that no such meeting shall be
required to be held during the [90]-day period preceding the date fixed for the
annual meeting of stockholders. Upon payment, or declaration and setting aside
for payment, of dividends on the Series ___ Preferred Stock so that dividends
are not then in arrears (or upon payment of the funds so set aside will not be
in arrears) for [six] [consecutive] Dividend Periods the terms of office of all
directors elected by the holders of the shares of Series ___ Preferred Stock and
the Voting Parity Stock pursuant thereto then in office shall, without further
action, thereupon terminate unless otherwise required by law. Upon such
termination the number of directors constituting the Board of the Company shall,
without further action, be reduced by two, subject always to the increase of the
number of directors pursuant to the foregoing provisions in the case of the
future right of holders of the shares of Series ___ Preferred Stock and Voting
Parity Stock to elect directors as provided above.
(iv) Vacancies. Any vacancy caused by the death or resignation of a
director who has been elected in accordance with this subparagraph (b) may be
filled by the remaining director so elected or, if not so filled, by a vote of
holders of a [plurality] [majority] of the shares of the Series ___ Preferred
Stock and Voting Parity Stock present and voting, in person or by proxy, at a
meeting called for such purpose. Unless such vacancy shall have been so filled
by the remaining director, such meeting shall be called by the Secretary of the
Company at the earliest practicable date after such death or resignation, and in
any event within l0 days after receipt of a written request signed by the
holders of record of at least 25% of the outstanding shares of the Series ___
Preferred Stock, subject to any applicable notice requirements imposed by law or
regulation. Notwithstanding the provisions of this paragraph, no such special
meeting shall be required to be held during the [90]-day period preceding the
date fixed for the annual meeting of stockholders.
(v) Stockholders' Right to Call Meeting. If any meeting of the
holders of the Series ___ Preferred Stock and Voting Parity Stock required by
this subparagraph (b) to be called shall not have been called within 30 days
after personal service of a written request therefor upon the Secretary of the
Company or within 30 days after mailing the same within the
6
<PAGE> 7
United States of America by registered mail, return receipt requested, addressed
to the Secretary of the Company at its principal executive offices, subject to
any applicable notice requirements imposed by law or regulation, then the
holders of record of at least 25% of the outstanding shares of the Series ___
Preferred Stock may designate in writing one of their number to call such
meeting at the expense of the Company, and such meeting may be called by such
person so designated upon the notice required for annual meetings of
stockholders or such shorter notice (but in no event shorter than permitted by
law or regulation) as may be acceptable to the holders of a majority of the
total number of shares of the Series ___ Preferred Stock. Any holder of Series
___ Preferred Stock so designated shall have access to the Series ___ Preferred
Stock books of the Company for the purpose of causing such meeting to be called
pursuant to these provisions.
(vi) Quorum. At any meeting of the holders of the Series ___
Preferred Stock called in accordance with the provisions of this subparagraph
(b) for the election or removal of directors, the presence in person or by proxy
of the holders of a majority of the total number of shares of the Series ___
Preferred Stock and Voting Parity Stock shall be required to constitute a
quorum; in the absence of a quorum, a majority of the holders present in person
or by proxy shall have power to adjourn the meeting from time to time without
notice other than an announcement at the meeting, until a quorum is present.
(c) Voting Rights on Extraordinary Matters. So long as any shares of
Series ___ Preferred Stock is outstanding and unless the consent or approval of
a greater number of shares is then required by law, without first obtaining the
approval of the holders of at least two-thirds of the number of shares of the
Series ___ Preferred Stock at the time outstanding (voting separately as a class
together with the holders of shares (on a one vote per share basis) of Voting
Parity Stock) given in person or by proxy at a meeting at which the holders of
such shares shall be entitled to vote separately as a class, the Company shall
not either directly or indirectly or through merger or consolidation with any
other company[, (i) authorize, create or issue, or increase the authorized or
issued amount, of any class or series of capital stock ranking prior to the
shares of the Series ___ Preferred Stock in rights and preferences or (ii)]
approve any amendment to (or otherwise alter or repeal) its Certificate of
Incorporation (or this resolution) that would materially and adversely change
the specific terms of the Series ___ Preferred Stock. [An amendment that
increases the number of authorized shares of any class or series of Preferred
Stock or authorizes the creation or issuance of other classes or series of
Preferred Stock, in each case ranking junior to the Series ___ Preferred Stock
with respect to the payment of dividends and distribution of assets upon
liquidation, dissolution or winding up, or substitutes the surviving entity in a
merger or consolidation for the Company, shall not be considered to be such an
adverse change.]
(d) One Vote Per Share. In connection with any matter on which holders
of the Series ___ Preferred Stock are entitled to vote as provided in
subparagraphs (b) and (c) above, or any matter on which the holders of the
Series ___ Preferred Stock are entitled to vote as one class or otherwise
pursuant to law or the provisions of the Certificate of Incorporation, each
holder of Series ___ Preferred Stock shall be entitled to one vote for each
share of Series ___ Preferred Stock held by such holder.
[5. Conversion. Shares of the Series ___ Preferred Stock shall be
convertible into Common Stock on the following terms and conditions:
(a) Conversion Right. Subject to and upon compliance with the provisions
of this Section 5, the holder of any shares of Series ___ Preferred Stock may at
such holder's option, at any time or from time to time, convert any such shares
into fully paid and non-assessable shares (calculated to the nearest 1/100 of a
share) of Common Stock at the conversion rate, determined as provided below, in
effect on the conversion date. The rate at which shares of Common Stock
7
<PAGE> 8
shall be delivered upon conversion (the "Conversion Rate") shall be initially
_____ shares of Common Stock for each share of Series ___ Preferred Stock. The
Conversion Rate is subject to adjustment as set forth in paragraph (d) of this
Section 5. [If any shares of Series ___ Preferred Stock shall be called for
redemption under Section 3(a) hereof, the right to convert such shares shall
terminate and expire at the close of business on the redemption date.]
(b) Dividends Upon Conversion. No payment or adjustment shall be made by
the Company to any holder of shares of Series ___ Preferred Stock surrendered
for conversion in respect of dividends accrued since the last preceding Dividend
Payment Date on the shares of Series ___ Preferred Stock surrendered for
conversion; provided, however, that if shares of Series ___ Preferred Stock
shall be converted subsequent to any record date with respect to any Dividend
Payment Date and prior to the next such succeeding Dividend Payment Date, the
dividend falling due on such Dividend Payment Date shall be payable on such
Dividend Payment Date notwithstanding such conversion, and such dividend
(whether or not punctually paid or duly provided for) shall be paid to the
person in whose name such shares are registered at the close of business on such
record date [(unless such shares shall have been called for redemption and the
redemption date is prior to such Dividend Payment Date)]. In such event [(unless
the immediately preceding parenthetical phrase is applicable)], the shares of
Series ___ Preferred Stock surrendered for conversion during such period must be
accompanied by payment by the holder of an amount equal to the dividend thereon
which the holder of record is to receive on such Dividend Payment Date.
(c) Method of Conversion.
(i) The surrender of any shares of Series ___ Preferred Stock for
conversion shall be made by the holder thereof by delivering the certificate or
certificates evidencing ownership of such shares with proper endorsement or
instruments of transfer to the Company at the office or agency in the State of
________ to be maintained by the Company for that purpose, and such holder shall
give written notice to the Company at that office or agency that he, she or it
elects to convert such shares of Series ___ Preferred Stock in accordance with
the provisions thereof and of this Section 5. That notice must also state the
number of whole shares of Series ___ Preferred Stock and the name or names (with
addresses) in which the certificate or certificates evidencing ownership of
Common Stock to be issued on such conversion shall be issued. In the case of
lost or destroyed certificates evidencing ownership of shares of Series ___
Preferred Stock to be surrendered for conversion, the holder shall submit proof
of loss or destruction and such indemnity and bond as shall be required by the
Company.
(ii) Subject to the provisions of Section 5(f) hereof, every such
notice of election to convert shall constitute a contract between the holder of
such shares of Series ___ Preferred Stock and the Company, whereby such holder
shall be deemed to agree to the conversion on the terms set forth herein.
(iii) As soon as practicable after its receipt of such notice and
the certificate or certificates evidencing ownership of such shares of Series
___ Preferred Stock (and the payment contemplated by the last sentence of
Section 5(b), if applicable), the Company shall issue and shall deliver, at the
office or agency referred to above and to the person for whose account such
shares of Series ___ Preferred Stock were so surrendered, or on his, her or its
written order, a certificate or certificates for the number of full shares of
Common Stock issuable upon the conversion of such shares of Series ___ Preferred
Stock and a check or cash payment (if any) to which such holder is entitled with
respect to fractional shares as determined by the Company, in accordance with
Section 5(e) hereof, at the close of business on the date of conversion.
(iv) The conversion shall be deemed to have been effected on the
date on which the Company has received both such notice and the certificate or
certificates for such shares of
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<PAGE> 9
Series ___ Preferred Stock (and the payment contemplated by the last sentence of
Section 5(b), if applicable); and the person or persons in whose name or names
any certificate or certificates for Common Stock are issuable upon the
conversion shall be deemed to have become on that date the holder or holders of
record of the shares represented thereby; provided, however, that any such
surrender on any date when the stock transfer books of the Company shall be
closed shall become effective for all purposes on the next succeeding day on
which such stock transfer books are open, but such conversion shall be at the
Conversion Rate in effect on the date upon which such surrender occurs.
(d) Adjustments to Conversion Rate. The Conversion Rate shall be subject
to adjustment from time to time as follows:
(i) In case the Company shall at any time (A) declare a dividend on
the Common Stock in shares of its capital stock, (B) subdivide its outstanding
Common Stock, (C) combine the outstanding Common Stock into a smaller number of
shares or (D) issue any shares of its capital stock by reclassification of the
Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the surviving company), the
Conversion Rate in effect on the record date for such dividend or on the
effective date of such subdivision, combination or reclassification shall be
proportionately adjusted so that the holder of any Series ___ Preferred Stock
converted after such time shall be entitled to receive the aggregate number and
kind of shares that, if such Series ___ Preferred Stock had been converted
immediately prior to such time, the holder would have owned upon such conversion
and been entitled to receive by virtue of such dividend, subdivision,
combination or reclassification. Such adjustment shall be made successively
whenever any event listed above shall occur.
(ii) In case the Company shall issue rights or warrants to all
holders of its Common Stock (which rights or warrants are not available on an
equivalent basis to holders of the Series ___ Preferred Stock on conversion)
entitling them to subscribe for or purchase Common Stock at a price per share
less than the current market price per share (as defined in subparagraph (iv) of
this paragraph (d)), at the record date for the determination of stockholders
entitled to receive such rights or warrants, the Conversion Rate shall be
adjusted (subject to the limitations contained in subparagraph (vii) of this
paragraph (d)) by multiplying the Conversion Rate in effect immediately prior to
such record date by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding on such date of issue plus the number of
additional shares of Common Stock to be offered for subscription or purchase and
the denominator of which shall be the number of shares of Common Stock
outstanding on the date of issue plus the number of shares of Common Stock that
the aggregate offering price of the total number of shares of Common Stock so to
be offered would purchase at such current market price. Such adjustment shall
become effective at the close of business on such record date; provided,
however, to the extent that Common Stock is not delivered after the expiration
of such rights or warrants, the Conversion Rate shall be readjusted (but only
with respect to Series ___ Preferred Stock converted after such expiration) to
the Conversion Rate that would then be in effect had the adjustments made upon
the issuance of such rights or warrants been made upon the basis of delivery of
only the number of shares of Common Stock actually issued and, provided,
further, that, in the case of rights or warrants exercisable for [__] days or
less, the Company may delay delivering any shares of Common Stock based on the
adjusted conversion rate until the expiration of the rights or warrants and, if
it does so, it shall as soon as practical after such expiration make whatever
retroactive delivery is appropriate in light of the number of actual shares of
Common Stock so actually delivered on exercise of such rights or warrants.*
(iii) In case the Company shall distribute to all holders of Common
Stock (including any such distribution made in connection with a consolidation
or merger in which the Company is the surviving entity) evidences of its
indebtedness or assets (including securities but excluding cash dividends or
distributions paid out of retained earnings and dividends payable in
9
<PAGE> 10
Common Stock) or subscription rights or warrants (excluding those referred to in
subparagraph (ii) of this paragraph (d)), the Conversion Rate shall be adjusted
(subject to the limitations contained in subparagraph (vii) of this paragraph
(d)) by multiplying the Conversion Rate in effect immediately prior to the
record date for determination of stockholders entitled to receive such
distribution by a fraction, the numerator of which shall be the current market
price per share of Common Stock (as defined in subparagraph (iv) of this
paragraph (d)) on such record date and the denominator of which shall be such
current market price per share of Common Stock, less the fair market value (as
determined by the Board, whose determination shall be conclusive) of the portion
of the evidences of indebtedness or assets or subscription rights or warrants so
to be distributed that are applicable to one share of Common Stock. Such
adjustment shall become effective at the close of business on such record date.
If after the distribution date (the "Distribution Date") for purposes of
distributing to holders of the Common Stock any stockholder protection, "poison
pill" or other similar rights to subscribe for securities of the Company or any
other entity ("Shareholder Rights"), converting holders of the Series ___
Preferred Stock are not entitled to receive the Shareholder Rights that would
otherwise be attributable (but for the date of conversion) to the shares of
Common Stock received upon such conversion, then adjustment of the Conversion
Rate shall be made under this subparagraph (iii) as if the Shareholder Rights
were then being distributed to holders of the Company's Common Stock. If such an
adjustment is made and the Shareholder Rights are later [redeemed,] invalidated
or terminated, then a corresponding reversing adjustment shall be made to the
Conversion Rate, on an equitable basis, to take account of such event. However,
the Company may elect to make provision with respect to the Shareholder Rights
so that each share of Common Stock issuable upon conversion of the Series ___
Preferred Stock, whether or not issued after the Distribution Date for such
Shareholder Rights, will be accompanied by the Shareholder Rights that would
otherwise be attributable (but for the date of conversion) to such shares of
Common Stock, in which event the preceding two sentences will not apply. The
foregoing provisions shall be applicable to all such rights plan(s) of the
Company.
(iv) For the purpose of any computation under subparagraphs (ii)
and (iii) of this paragraph (d), the current market price per share of Common
Stock on any record date shall be deemed to be the average of the daily closing
prices for the five consecutive business days selected by the Board commencing
not more than 20 trading days before, and ending not later than, the earlier of
the day in question and the day before the "ex" date with respect to the
issuance or distribution requiring such computation. For this purpose, the term
"ex" date, when used with respect to any issuance or distribution, means the
first date on which the Common Stock trades regular way on the applicable
exchange or in the applicable market without the right to receive such issuance
or distribution. The closing price for each date shall be the reported last sale
price regular way or, in case no such reported sale takes place on such day, the
average of the high and low bid prices on such date and, in case there are no
such bid prices, the price determined by the Company on the laws of such
quotations or other information it considers appropriate.
(v) In the case of any (a) consolidation or merger of the Company
with or into any entity (other than a consolidation or merger that does not
result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Company),
*Any other or alternative anti-dilution provisions as are agreed to
(whether current quotient, market price or other (see Sections 12.06 - 12.10 of
the form of Senior Subordinated Indenture, which is Exhibit 4.1 to this
Registration Statement)) may be added here and the subparagraphs in this Section
renumbered, as appropriate.
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<PAGE> 11
(b) sale, transfer, lease or conveyance of all or substantially all of the
assets of the Company or (c) reclassification, capital reorganization or change
of the Common Stock (other than solely a change in par value, or from par value
to no par value), each holder of a share of Series ___ Preferred Stock then
outstanding shall have the right thereafter to convert such share only into the
kind and amount of securities, cash and other property receivable upon such
consolidation, merger, sale, transfer, capital reorganization or
reclassification by a holder of the number of shares of Common Stock of the
Company into which such shares of Series ___ Preferred Stock would have been
converted immediately prior to such consolidation, merger, sale, transfer,
capital reorganization or reclassification, assuming (x) such holder of Common
Stock of the Company is not an entity with which the Company consolidated or
into which the Company merged or which merged into the Company or to which such
sale or transfer was made, as the case may be ("constituent entity"), or an
affiliate of a constituent entity, and (y) such holder of Common Stock failed to
exercise his, her or its rights of election, if any, as to the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer (provided that if the kind or amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer is
not the same for each share of Common Stock of the Company held immediately
prior to such consolidation, merger, sale or transfer by other than a
constituent entity or an affiliate thereof ("non-electing share"), then, for the
purpose of this subsection (v), the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer by
each non-electing share shall be deemed to be the kind and amount so receivable
per share by a plurality of the non-electing shares). If necessary, appropriate
adjustment shall be made in the application of the provisions set forth herein
with respect to the rights and interests thereafter of the holders of shares of
Series ___ Preferred Stock, to the end that the provisions set forth herein
shall thereafter correspondingly be made applicable, as nearly as may reasonably
be, in relation to any shares of stock or other securities or property
thereafter deliverable on the conversion of the shares. The above provisions
shall similarly apply to successive consolidations, mergers, sales, transfers,
capital reorganizations and reclassifications. The Company shall not effect any
such consolidation, merger, sale or transfer, unless prior to or simultaneously
with the consummation thereof the successor company or entity (if other than the
Company) resulting from such consolidation, merger, sale or transfer shall
assume, by written instrument, the obligation to deliver to the holder of each
share of Series ___ Preferred Stock such shares of stock, securities or assets
as, in accordance with the foregoing provisions, such holder may be entitled to
receive under this Section 5(d).
(vi) The Company may make such increases in the Conversion Rate, in
addition to those required by subparagraphs (i) through (v) of this Section
5(d), as it considers to be advisable in order that any event treated for
federal income tax purposes as a dividend of stock or stock rights shall not be
taxable to the recipients.
(vii) No adjustment in the Conversion Rate will be made for the
issuance of shares of capital stock to employees pursuant to the Company's or
any of its subsidiaries' stock option, stock ownership or other benefit plans.
No adjustment will be required to be made in the Conversion Rate until
cumulative adjustments require an adjustment of at least 1% of such Conversion
Rate, but rather such cumulative adjustment shall be carried forward and made
when such 1% threshold is reached or exceeded.
(e) Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon the conversion of any shares of Series
___ Preferred Stock, but the holder thereof will receive in cash an amount equal
to the value of such fractional share of Common Stock based on the current
market price (as defined in subparagraph (iv) of Section 5(d)). If more than one
share of Series ___ Preferred Stock is surrendered for conversion at one time by
the same holder, the number of full shares issuable upon conversion thereof
shall be computed on the basis of the aggregate number of such shares so
surrendered.
11
<PAGE> 12
(f) Payment of Taxes. The Company shall pay any tax in respect of the
issuance of stock certificates on conversion of shares of Series __ Preferred
Stock. The Company shall not, however, be required to pay any tax that may be
payable in respect of any transfer involved in the issuance and delivery of
stock in any name other than that of the holder of the shares converted, and the
Company shall not be required to issue or deliver any such stock certificate
unless and until the person or persons requesting the issuance hereof shall have
paid to the Company the amount of any such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
(g) Common Stock Reserved for Conversion. The Company shall at all times
reserve and keep available out of its authorized and unissued Common Stock the
full number of shares of Common Stock deliverable upon the conversion of all
outstanding shares of Series ___ Preferred Stock and shall take all such action
as may be required from time to time in order that it may validly and legally
issue fully paid and non-assessable shares of Common Stock upon conversion of
the Series ___ Preferred Stock.
(h) Notice. If:
(w) the Company shall declare a dividend (or any other
distribution) on its Common Stock (other than a cash dividend
payable out of retained earnings); or
(x) the Company shall authorize the issuance to holders of its
Common Stock of rights or warrants to subscribe for or purchase
Common Stock; or
(y) of any reclassification of the Common Stock of the Company
(other than a subdivision or combination of its outstanding
Common Stock, or a change in par value, or from par value to no
par value, or from no par value to par value) or of any
consolidation or merger to which the Company is a party or of
the sale or transfer of all or substantially all of the assets
of the Company and for which approval of any stockholders of
the Company is required; or
(z) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then, and in each event, the Company shall cause to be mailed to each holder of
Series ___ Preferred Stock, at his, her or its address as the same shall appear
on the books of the Company, as promptly as possible but in any event at least
[15] days prior to the applicable date hereinafter specified, a notice stating
(A) 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 Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined, and the nature and amount
of such dividend, distribution, rights or warrants or (B) 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 Common Stock of record shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up.
(i) "Common Stock". For the purposes of this Section 5, "Common Stock"
means stock of the Company of any class, whether now or hereafter authorized,
that has the right to participate in the distribution of either earnings or
assets of the Company without limit as to the amount or percentage, including,
without limitation, the Common Stock. In case by reason of the operation of
paragraph (d) of this Section 5, the shares of Series ___ Preferred Stock shall
be convertible into any other shares of stock or other securities or property of
the Company or of
12
<PAGE> 13
any other company, any reference herein to the conversion of shares of Series
___ Preferred Stock pursuant to this Section 5 shall be deemed to refer to and
include the conversion of shares of Series ___ Preferred Stock into such other
shares of stock or other securities or property.]
6. [Exchange.
(a) Subject to the other provisions set forth in this Section 6, the
Series __ Preferred Stock shall be exchangeable [in whole, but not] in part, at
the option of the Company, [on any Dividend Payment Date] beginning ____, 199_,
for the [identify Debt Securities of the Company] as set forth below. [Holders
of outstanding shares of Series __ Preferred Stock will be entitled to receive
$__ principal amount of [identify Debt Securities] in exchange for each share of
Preferred Stock held by them at the time of exchange; provided that the
[identify Debt Securities] will be issuable in denominations of $1,000 and
integral multiples thereof. If the exchange results in an amount of [identify
Debt Securities] that is not an integral multiple of $1,000, the amount in
excess of the closest integral multiple of $1,000 will be paid in cash by the
Company.
(b) The Company will mail to each record holder of the Series __
Preferred Stock [whose Preferred Stock is to be Exchanged] written notice of its
intention to exchange the Preferred Stock for the [identify Debt Securities] no
less than 30 nor more than 60 days prior to the date of the exchange (the
"Exchange Date"). The notice shall specify the effective date of the exchange
and the place where certificates for shares of Series __ Preferred Stock are to
be surrendered for [identify Debt Securities] and shall state that dividends on
[such] Series __ Preferred Stock will cease to accrue on the Exchange Date.
Prior to giving notice of intention to exchange, the Company shall have
executed and delivered to a bank or trust company selected by the Company to act
as Trustee with respect to the [identify Debt Securities], which Trustee shall
meet the eligibility requirements of the Section 310(a) of the Trust Indenture
Act of 1939 as then in effect, and which Trustee shall have executed and
delivered to the Company an Indenture [substantially in the form filed as an
exhibit to the [identify Registration Statement]]; with such changes as may be
required by law, stock exchange rule, NASDAQ National Market System rule or
customary usage].
(c) If the Company has caused [identify Debt Securities] to be
authenticated on or prior to the Exchange Date and has complied with the other
provisions of this Section 6, then, notwithstanding that any certificates for
shares of Series __ Preferred Stock called for Exchange have not been
surrendered for exchange, on the Exchange Date dividends shall cease to accrue
on [the] [such] Series __ Preferred Stock and at the close of business on the
Exchange Date the holders of [the] [such] Series __ Preferred Stock shall cease
to be stockholders with respect to [the] [such] [Series __] Preferred Stock and
shall have no interest in or other claims against the Company by virtue thereof
and shall have no voting or other rights with respect to [the] [such] Series __
Preferred Stock, except the right to receive the [identify Debt Securities]
issuable upon such exchange and the right to accrued and unpaid dividends to and
including the Exchange Date, without interest thereon, upon surrender (and
endorsement, if required by the Company) of their certificates, and the shares
evidenced thereby shall no longer be deemed outstanding for any purpose.
The Company will cause the [identify Debt Securities] to be
authenticated on or before the Exchange Date.
[(d) Notwithstanding the foregoing, if notice of exchange has been given
pursuant to this Section 6 and any holder of shares of Preferred Stock has,
prior to the close of business on the Exchange Date, give written notice to the
Company pursuant to Section 5 of the conversion of any or all of the shares held
by the holder (accompanied by a certificate or certificates for
13
<PAGE> 14
such shares, duly endorsed or assigned to the Company), then the exchange shall
not become effective as to the shares to be converted and the conversion shall
become effective as provided in Section 5.]
(e) The [identify Debt Securities] will be delivered to the persons
entitled thereto upon surrender to the Company or its agent appointed for that
purpose of the certificates for the shares of Series __ Preferred Stock being
exchanged therefor.
(f) Notwithstanding the other provisions of this Section 6, if on the
Exchange Date the Company has not paid in full all accrued and unpaid dividends
on the Series __ Preferred Stock (or set aside a sum therefor), the Company may
not exchange [the] [any] Series __ Preferred Stock for [identify Debt
Securities] and any notice previously given pursuant to this Section 6 shall be
of no effect.
(g) Prior to the Exchange Date, the Company will comply with any
applicable securities and blue sky laws with respect to the exchange of the
Series __ Preferred Stock for [identify Debt Securities].
7. [No] Sinking Fund. [No sinking fund will be established for the
retirement or redemption of shares of Series ___ Preferred Stock.] [If sinking
fund provisions are to be included, they will be inserted here.]
8. Liquidation Rights; Priority.
(a) In the event of any liquidation, dissolution or winding up of the
affairs of the Company, whether voluntary or involuntary, after payment or
provision for payment of the debts and other liabilities of the Company, the
holders of shares of the Series ___ Preferred Stock shall be entitled to
receive, out of the assets of the Company, whether such assets are capital or
surplus and whether or not any dividends as such are declared, $____ per share
[plus an amount equal to all accrued and unpaid dividends for the [then-current]
[plus all prior] dividend period[s], and no more], before any distribution shall
be made to the holders of the Common Stock or any other class of stock or series
thereof ranking junior to the Series ___ Preferred Stock with respect to the
distribution of assets. Unless specifically designated as junior or senior to
the Series ___ Preferred Stock with respect to the distribution of assets, all
other series or classes of Preferred Stock of the Company shall rank on a parity
with the Series ___ Preferred Stock with respect to the distribution of assets.
(b) [Nothing contained in this Section 8 shall be deemed to prevent
redemption of shares of the Series ___ Preferred Stock by the Company in the
manner provided in Section 3.] Neither the merger nor consolidation of the
Company into or with any other company, nor the merger or consolidation of any
other company into or with the Company, nor a sale, transfer or lease of all or
any part of the assets of the Company, shall be deemed to be a liquidation,
dissolution or winding up of the Company within the meaning of this Section 8.
(c) Written notice of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, stating a payment date
and the place where the distributable amounts shall be payable and containing a
statement of or reference to the conversion right set forth in Section 5 hereof,
shall be given by mail, postage prepaid, no less than 30 days prior to the
payment date stated therein, to the holders of record of the Series ___
Preferred Stock at their respective addresses as the same shall appear on the
books of the Company.
(d) If the amounts available for distribution with respect to the Series
___ Preferred Stock and all other outstanding stock of the Company ranking on a
parity with the Series ___ Preferred Stock upon liquidation are not sufficient
to satisfy the full liquidation rights of all the
14
<PAGE> 15
outstanding Series ___ Preferred Stock and stock ranking on a parity therewith,
then the holders of each series of such stock will share ratably in any such
distribution of assets in proportion to the full respective preferential amount
(which in the case of the Series __ Preferred Stock shall mean the amounts
specified in Section 8(a) and in the case of any other series of preferred stock
may include accumulated dividends if contemplated by such series) to which they
are entitled.
9. Record Holders. The Company and the Transfer Agent may deem and treat
the record holder of any shares of Series __ Preferred Stock as the true and
lawful owner thereof for all purposes, and neither the Company nor the Transfer
Agent shall be affected by any notice to the contrary.
10. Notices. Except as may otherwise by provided for herein, all notices
referred to herein shall be in writing, and all notices hereunder shall be
deemed to have been given upon receipt, in the case of a notice of conversion
given to the Company as contemplated in Section 5(c) hereof, or, in all other
cases, upon the earlier of receipt of such notice or three Business Days after
the mailing of such notice if sent by registered mail (unless first-class mail
shall be specifically permitted for such notice under the terms of this
Certificate) with postage prepaid, addressed: if to the Company, to its offices
at 6001 24th Street, Phoenix, Arizona 85016, Attention: General Counsel or to an
agent of the Company designated as permitted by this Certificate, or, if to any
holder of the Series __ Preferred Stock, to such holder at the address of such
holder of the Series __ Preferred Stock as listed in the stock record books of
the Company (which may include the records of any transfer agent for the Series
__ Preferred Stock); or to such other address as the Company or holder, as the
case may be, shall have designated by notice similarly given.]
In witness whereof, Del Webb Corporation has caused this Certificate of
Designations [complete title of certificate to be continued] to be executed by
_______, its [Vice] President, and by ______, its [Assistant] Secretary, and its
corporate seal to be affixed hereto, this _____ day of ____________, 199_.
DEL WEBB CORPORATION
By:___________________________
Name:____________________
Title: [Vice] President
(Corporate Seal)
ATTEST:
By:___________________________
Name:____________________
Title: [Assistant] Secretary
15
<PAGE> 1
EXHIBIT 4.6
DEL WEBB CORPORATION
_____________, AS DEPOSITARY
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
_________________
DEPOSIT AGREEMENT
_________________
DATED AS OF __________, 199
<PAGE> 2
Table of Contents
<TABLE>
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ARTICLE I
DEFINITIONS............................................................ 1
Certificate...................................................... 1
Company.......................................................... 1
Deposit Agreement................................................ 1
Depositary....................................................... 1
Depositary Shares................................................ 1
Depositary's Agent............................................... 1
Depositary's Office.............................................. 1
Receipt.......................................................... 2
Record Holder.................................................... 2
Registrar........................................................ 2
Stock............................................................ 2
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS................................... 2
SECTION 2.01. Form and Transfer of Receipts..................... 2
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof....................... 3
SECTION 2.03. Redemption of Stock............................... 3
SECTION 2.04. Registration of Transfer of Receipts.............. 4
SECTION 2.05. Split-ups and Combinations of Receipts[;
Surrender of Depositary Shares and Withdrawal
of Stock]......................................... 4
SECTION 2.06. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of Receipts...... 5
SECTION 2.07. Lost Receipts, etc................................ 6
</TABLE>
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<TABLE>
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SECTION 2.08. Cancellation and Destruction of Surrendered
Receipts.......................................... 6
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS AND THE COMPANY......... 6
SECTION 3.01. Filing Proofs, Certificates and Other
Information....................................... 6
SECTION 3.02. Payment of Taxes or Other Governmental Charges.... 6
SECTION 3.03. Warranty as to Stock.............................. 6
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES...................................... 6
SECTION 4.01. Cash Distributions................................ 6
SECTION 4.02. Distributions Other than Cash..................... 7
SECTION 4.03. Subscription Rights, Preferences or Privileges.... 7
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record
Date for Holders of Depositary Shares............. 8
SECTION 4.05. Voting Rights..................................... 8
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc......... 9
SECTION 4.07. Delivery of Reports............................... 9
SECTION 4.08. List of Holders................................... 9
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND
THE COMPANY............................................................ 9
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar................ 9
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, any
Registrar or the Company.......................... 10
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, any Registrar and the Company............. 10
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary............... 11
</TABLE>
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<TABLE>
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SECTION 5.05. Corporate Notices and Reports..................... 11
SECTION 5.06. Indemnification by the Company.................... 12
SECTION 5.07. Charges and Expenses.............................. 12
ARTICLE VI
AMENDMENT AND TERMINATION.............................................. 12
SECTION 6.01. Amendment......................................... 12
SECTION 6.02. Termination....................................... 12
ARTICLE VII
GENERAL PROVISIONS..................................................... 13
SECTION 7.01. Counterparts...................................... 13
SECTION 7.02. Exclusive Benefit of Parties...................... 13
SECTION 7.03. Invalidity of Provisions.......................... 13
SECTION 7.04. Notices........................................... 13
SECTION 7.05. Depositary's Agents............................... 13
SECTION 7.06. Holders of Receipts Are Parties................... 13
SECTION 7.07. Governing Law..................................... 14
SECTION 7.08. Inspection of Deposit Agreement................... 14
SECTION 7.09. Headings.......................................... 14
</TABLE>
iii
<PAGE> 5
DEPOSIT AGREEMENT*
DATED AS OF ______, 19__
AMONG
DEL WEBB CORPORATION
_____________________,
a _______________,
AND THE HOLDERS FROM TIME TO
TIME OF THE DEPOSITARY RECEIPTS
DESCRIBED HEREIN
It is desired to provide, as set forth below in this Deposit Agreement,
for the deposit of shares of [insert designation of preferred stock], par value
$___ per share, of DEL WEBB CORPORATION with the Depositary (defined below) for
the purposes set forth in this Deposit Agreement and for the issuance hereunder
of Receipts (defined below) evidencing Depositary Shares, [insert designation],
in respect of the Stock (defined below) so deposited.
The parties hereto agree as set forth below.
ARTICLE I
DEFINITIONS
Unless otherwise indicated below, the definitions set forth below apply in
this Deposit Agreement and the Receipts.
"Certificate" means the certificate of designations filed with the
Secretary of State of Arizona establishing the Stock as a series of preferred
stock of the Company.
"Company" means Del Webb Corporation, a Delaware corporation, and its
successors.
"Deposit Agreement" means this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" means [insert name], and any successor as Depositary
hereunder.
"Depositary Shares" means [insert designation], each representing a
[insert fraction] interest in a share of Stock and evidenced by a Receipt.
"Depositary's Agent" means an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" means the office of the Depositary [insert address]
in [insert city/state], at which its depositary receipt business shall be
administered.
- -------------
* Language in brackets in this Deposit Agreement may or may not be included in
any final Deposit Agreement.
<PAGE> 6
"Receipt" means one of the depositary receipts issued under this Deposit
Agreement, whether in definitive or temporary form.
"Record Holder" as applied with respect to a Depositary Share means the
person in whose name a Receipt evidencing such Depositary Share is registered on
the books of the Depositary maintained for such purpose.
"Registrar" means any bank or trust company that is appointed to register
ownership and transfers of Receipts as provided in this Deposit Agreement.
"Stock" means shares of the Company's [insert designation of preferred
stock], par value per share $___.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. FORM AND TRANSFER OF RECEIPTS. Definitive Receipts shall be
engraved or printed or lithographed and shall be substantially in the form set
forth in Exhibit A to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as provided below. Pending the preparation of
definitive Receipts, the Depositary, upon the written order of the Company
delivered in compliance with Section 2.02, shall execute and deliver temporary
Receipts that are printed, lithographed, typewritten, mimeographed or otherwise
substantially of the tenor of the definitive Receipts in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the persons executing such Receipts may determine, as evidenced by
their execution of such Receipts. If temporary Receipts are issued, the Company
and the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts will be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at an office designated by the Depositary as contemplated by
the third paragraph of Section 2.02, without charge to the holder. Upon
surrender for cancellation of any one or more temporary Receipts, the Depositary
shall execute and deliver in exchange therefor definitive Receipts representing
the same number of Depositary Shares as represented by the surrendered temporary
Receipt or Receipts. Such exchange shall be made at the Company's expense and
without any charge therefor. Until so exchanged, the temporary Receipts shall in
all respects be entitled to the same benefits under this Deposit Agreement, and
with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of a
duly authorized officer of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) has been appointed and such Receipts are countersigned by manual
signature of a duly authorized officer of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose unless it has been executed either (i) manually by a duly
authorized officer of the Depositary or (ii) alternatively, but only if a
Registrar for the Receipts (other than the Depositary) has been appointed, by
facsimile signature of a duly authorized officer of the Depositary and
countersigned manually by a duly authorized officer of such Registrar. The
Depositary shall record on its books each Receipt so signed and delivered as
hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Company or the Depositary or
required to comply with any applicable law or any
2
<PAGE> 7
regulation thereunder or with the rules and regulations of any securities
exchange upon which the Stock, the Depositary Shares or the Receipts may be
listed or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Receipts are
subject.
Title to Depositary Shares evidenced by a Receipt that is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Depositary Share is
registered on the books of the Depositary as provided in Section 2.04, the
Depositary may, notwithstanding any notice to the contrary, treat the Record
Holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.02. DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF RECEIPTS IN
RESPECT THEREOF. Subject to the terms and conditions of this Deposit Agreement,
the Company may from time to time deposit shares of Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for the
Stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
reasonably satisfactory to the Depositary, together with all such certifications
as may be reasonably required by the Depositary in accordance with the
provisions of this Deposit Agreement, and together with a written order of the
Company directing the Depositary to execute and deliver to, or upon the written
order of, the person or persons stated in such order a Receipt or Receipts for
the number of Depositary Shares relating to such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's Office
or at such other place or places in the state of _______ as the Depositary shall
determine.
Upon receipt by the Depositary of a certificate or certificates for Stock
deposited in accordance with the provisions of this Section, together with the
other documents required as specified above, and upon recordation of the Stock
so deposited on the books of the Company in the name of the Depositary or its
nominee, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver to or upon the order of the person or
persons named in the written order delivered to the Depositary, a Receipt or
Receipts for the number of Depositary Shares relating to the Stock so deposited
and registered in such name or names as may be requested by such person or
persons. The Depositary shall execute and deliver such Receipt or Receipts at
the Depositary's Office or such other offices, if any, as the Depositary may
designate if requested by any such person or persons. Delivery at other offices
shall be at the risk and expense of the person requesting such delivery.
Other than in the case of splits, combinations or other reclassifications
affecting the Stock, or in the case of dividends or other distributions of
Stock, if any, there shall be deposited hereunder not more than ______shares of
Stock.
SECTION 2.03. REDEMPTION OF STOCK. Whenever the Company elects to redeem
shares of Stock in accordance with the provisions of the Certificate, it shall
(unless otherwise agreed in writing with the Depositary) give notice to the
Depositary of such proposed redemption, as provided in Section 7.04, not less
than ___ nor more than ____ days prior to the date fixed for redemption of such
shares of Stock in accordance with Section ___ of the Certificate. On the date
of such redemption, provided that the Company shall then have paid in full to
the Depositary the redemption price of the Stock to be redeemed plus any accrued
and unpaid dividends thereon, the Depositary shall redeem the Depositary Shares
relating to such Stock and deliver such Stock, together with appropriate
instruments of transfer, to the Company or its order. The Depositary shall mail
notice of such redemption and the proposed simultaneous redemption of the number
of
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Depositary Shares relating to the Stock to be redeemed, by first class mail,
postage prepaid, not less than 30 and not more than 60 days prior to the date
fixed for redemption of such Stock and Depositary Shares (the "Redemption
Date"), to the Record Holders of the Depositary Shares to be so redeemed, at the
addresses of such holders as they appear on the records of the Depositary, but
neither failure to mail any such notice to one or more such holders nor any
defect in any notice to one or more such holders shall affect the sufficiency of
the proceedings for redemption as to other holders. Each such notice shall
state: (i) the Redemption Date; (ii) the number of Depositary Shares to be
redeemed and, if less than all the Depositary Shares held by any such holder are
to be redeemed, the number of such Depositary Shares held by such holder to be
so redeemed; (iii) the redemption price; (iv) the place or places where Receipts
evidencing Depositary Shares are to be surrendered for payment of the redemption
price; and (v) when dividends in respect of the Stock underlying the Depositary
Shares to be redeemed will cease to accrue. In case less than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be so
redeemed shall be selected by lot, on a pro rata basis or by such other means as
may be determined by the Depositary to be equitable.
If notice has been mailed by the Depositary as provided above, from and
after the Redemption Date (unless the Company has failed to redeem the shares of
Stock to be redeemed by it as set forth in the Company's notice provided for in
the preceding paragraph), all dividends in respect of the Depositary Shares so
called for redemption shall cease to accrue and accumulate, the Depositary
Shares being redeemed from such proceeds shall be deemed no longer to be
outstanding, all rights of the holders of Receipts evidencing such Depositary
Shares (except the right to receive the redemption price) shall, to the extent
of such Depositary Shares, cease and terminate and, upon surrender of the
Receipts evidencing any such Depositary Shares (properly endorsed or assigned
for transfer, if the Depositary shall so require) in accordance with such
notice, such Depositary Shares shall be redeemed by the Depositary at a
redemption price per Depositary Share equal to [insert fraction] of the
redemption price per share paid in respect of the shares of Stock plus, if
applicable, all money and other property, if any, paid with respect to such
Depositary Shares (rounded to the next highest whole cent, where appropriate)
and including, if applicable' all amounts paid by the Company in respect of
dividends that on the Redemption Date have accumulated on the shares of Stock to
be so redeemed and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt are called
for redemption, the Depositary will deliver to the holder of such Receipt upon
its surrender to the Depositary, together with the redemption payment, a new
Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not
called for redemption.
SECTION 2.04. REGISTRATION OF TRANSFER OF RECEIPTS. Subject to the terms
and conditions of this Deposit Agreement, the Depositary shall register on its
books from time to time transfers of Depositary Shares upon any surrender of the
Receipt or Receipts evidencing such Depositary Shares by the holder in person or
by duly authorized attorney, properly endorsed or accompanied by a properly
executed instrument of transfer. Thereupon the Depositary shall execute a new
Receipt or Receipts evidencing the same aggregate number of Depositary Shares as
those evidenced by the Receipt or Receipts surrendered and deliver such new
Receipt or Receipts to or upon the order of the person entitled thereto.
SECTION 2.05. SPLIT-UPS AND COMBINATIONS OF RECEIPTS[; SURRENDER OF
DEPOSITARY SHARES AND WITHDRAWAL OF STOCK]. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may designate
for the purpose of effecting a split-up or combination of such Receipt or
Receipts, and subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered.
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<PAGE> 9
[Any holder of at least Depositary Shares may withdraw the number of
whole shares of Stock underlying such Depositary Shares and all money and other
property, if any, underlying such Depositary Shares by surrendering Receipts
evidencing such Depositary Shares at the Depositary's Office or at such other
offices as the Depositary may designate for such withdrawals. Thereafter,
without unreasonable delay, the Depositary shall deliver to such holder, or to
the person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property, if any,
underlying the Depositary Shares so surrendered for withdrawal, but holders of
such whole shares of Stock (other than the Company) will not thereafter be
entitled to deposit such Stock hereunder or to receive Receipts evidencing
Depositary Shares therefor. If a Receipt delivered by a holder to the Depositary
in connection with such withdrawal shall evidence a number of Depositary Shares
relating to other than a number of whole shares of Stock, the Depositary shall
at the same time, in addition to such number of whole shares of Stock and such
money and other property, if any, to be so withdrawn, deliver to such holder, or
(subject to Section 3.02) upon his or her order, a new Receipt evidencing such
excess number of Depositary Shares. Delivery of the Stock and money and other
property being withdrawn may be made by delivery of such certificates, documents
of title and other instruments as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the Record Holder of the Depositary
Shares evidenced by the Receipts being surrendered for withdrawal of Stock, such
holder shall execute and deliver to the Depositary a written order so directing
the Depositary, and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer.
Delivery of the Stock and money and other property, if any, underlying the
Depositary Shares surrendered for withdrawal shall be made by the Depositary at
the Depositary's Office, except that, at the request, risk and expense of the
holder surrendering such Depositary Shares and for the account of such holder,
such delivery may be made at such other place as may be designated by such
holder.]
SECTION 2.06. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, SURRENDER
AND EXCHANGE OF RECEIPTS. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination, surrender or exchange
of any Receipt, the Depositary, any of the Depositary's Agents or the Company
may require payment to it of a sum sufficient for the payment (or, in the event
that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The [delivery of Receipts against Stock may be suspended, the]
registration of transfer of Depositary Shares may be refused and the
registration of transfer, surrender or exchange of outstanding Depositary Shares
may be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time from
time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
SECTION 2.07. LOST RECEIPTS, ETC. In case any Receipt is mutilated,
destroyed, lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt, or in lieu of and in substitution for such destroyed, lost or
stolen Receipt, upon (i) the filing by the holder thereof with the Depositary
and
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<PAGE> 10
the Company, if the Company so requests, of evidence satisfactory to the
Depositary and, if applicable, the Company of such destruction or loss or theft
of such Receipt, or the authenticity thereof and of his, her or its ownership
thereof and (ii) the furnishing to the Depositary and, if the Company so
requests, the Company of reasonable indemnification or a bond satisfactory to
the Depositary and, if the Company so requests, the Company.
SECTION 2.08. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
ARTICLE III
CERTAIN OBLIGATIONS OF THE
HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any
holder of a Depositary Share may be required from time to time to file such
proof of residence, or other matters or other information, to execute such
certificates and to make such representations and warranties as the Depositary
or the Company may reasonably deem necessary or proper. The Depositary or the
Company may withhold the delivery, or delay the registration of transfer,
redemption or exchange, of any Depositary Share [or the withdrawal of any Stock
underlying Depositary Shares] or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.02. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. Holders of
Depositary Shares shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.07. Registration of
transfer of any Depositary Share [or any withdrawal of Stock and delivery of all
money or other property, if any, underlying such Depositary Share] may be
refused until any such payment due is made, and any dividends or other
distributions may be withheld or all or any part of the Stock or other property
relating to such Depositary Shares and not theretofore sold may be sold for the
account of the holder thereof (after attempting by reasonable means to notify
such holder prior to such sale), and such dividends or other distributions or
the proceeds of any such sale may be applied to any payment of such charges or
expenses, the holder of such Depositary Share remaining liable for any
deficiency.
SECTION 3.03. WARRANTY AS TO STOCK. The Company hereby represents and
warrants that the Stock, when issued against payment in full therefor, will be
validly issued, fully paid and nonassessable. Such representation and warranty
shall survive the deposit of the Stock and the issuance of the Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary shall receive
any cash dividend or other cash distribution on the Stock, the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to the Record Holder of Depositary
Shares on the record date fixed pursuant to Section 4.04 such amounts of such
dividend or distribution as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares held by such holders; provided, however,
that in case the Company or the Depositary shall be required to withhold and
shall withhold from any cash dividend or other cash distribution in respect of
the Stock an amount on
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<PAGE> 11
account of taxes, the amount made available for distribution or distributed in
respect of Depositary Shares shall be reduced accordingly. The Depositary shall
distribute or make available for distribution, as the case may be, only such
amount, however, as can be distributed without attributing to any holder of
Depositary Shares a fraction of one cent, and any balance not so distributable
shall be held by the Depositary (without liability for interest thereon) and
shall be added to and be treated as part of the next sum received by the
Depositary for distribution to Record Holders of Depositary Shares then
outstanding.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH. Whenever the Depositary shall
receive any distribution other than cash on the Stock, the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to the Record Holders of
Depositary Shares on the record date fixed pursuant to Section 4.04 such amounts
of the securities or property received by it as are, as nearly as practicable,
in proportion to the respective numbers of Depositary Shares held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such Record Holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes or governmental charges) the Depositary
deems, after consultation with the Company, such distribution not to be feasible
or lawful, the Depositary may, with the written approval of the Company, adopt
such method as it deems equitable and practicable for the purpose of effecting
such distribution, including the sale (at public or private sale) of the
securities or property thus received, or any part thereof, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall, subject to Sections 3.01 and 3.02, be distributed or made available
for distribution, as the case may be, by the Depositary to the Record Holders of
Depositary Shares entitled thereto as provided by Section 4.01 in the case of a
distribution received in cash. The Company shall not make any distribution of
such securities unless the Company shall have provided to the Depositary an
opinion of counsel to the effect that such securities have been registered under
the Securities Act of 1933 or do not need to be registered.
SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences, or
privileges shall in each such instance be made available by the Depositary to
the Record Holders of Depositary Shares in such manner as may be selected by the
Depositary with the written approval of the Company; provided, however, that (i)
if at the time of issue or offer of any such rights, preferences or privileges
the Depositary determines that it is not lawful or (after consultation with the
Company) not feasible to make such rights, preferences or privileges available
to holders of Depositary Shares or (ii) if and to the extent so instructed by
holders of Depositary Shares who do not desire to exercise such rights,
preferences or privileges, then the Depositary, in its discretion (with the
approval of the Company, in any case where the Depositary has determined that it
is not feasible to make such rights, preferences or privileges available), may,
if applicable laws or the terms of such rights, preferences or privileges permit
such transfer, sell such rights, preferences or privileges at public or private
sale, at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed by the Depositary to the Record Holders of Depositary Shares
entitled thereto as provided by Section 4.01 in the case of a distribution
received in cash. The Company shall not make any distribution of such rights,
preferences or privileges unless the Company shall have provided to the
Depositary an opinion of counsel to the effect that such rights, preferences or
privileges have been registered under the Securities Act of 1933 or do not need
to be so registered.
[If registration under the Securities Act of 1933 of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Depositary Shares to be offered
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<PAGE> 12
or sold the securities to which such rights, preferences or privileges relate,
the Company agrees with the Depositary that it will file promptly a registration
statement pursuant to such Act with respect to such rights, preferences or
privileges and securities and use its best efforts and take all steps available
to it to cause such registration statement to become effective sufficiently in
advance of the expiration of such rights, preferences or privileges to enable
such holders to exercise such rights, preferences or privileges. In no event
shall the Depositary make available to the holders of Depositary Shares any
right, preference or privilege to subscribe for or to purchase any securities
unless and until such a registration statement shall have become effective, or
unless the offering and sale of such securities to such holders are exempt from
registration under the provisions of such Act.]
[If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to the
holders of Depositary Shares, the Company agrees with the Depositary that the
Company will use its best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.]
SECTION 4.04. NOTICE OF DIVIDENDS, ETC.; FIXING OF RECORD DATE FOR HOLDERS
OF DEPOSITARY SHARES. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be offered, with respect to
the Stock, or whenever the Depositary receives notice of any meeting at which
holders of Stock are entitled to vote, or of which holders of Stock are entitled
to notice, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
the Stock) for the determination of the holders of Depositary Shares who shall
be entitled to receive a distribution in respect of such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale thereof, or to
give instructions for the exercise of voting rights at any such meeting, or who
shall be entitled to receive notice of such meeting.
SECTION 4.05. VOTING RIGHTS. Upon receipt of notice of any meeting or
action to be taken by written consent at which the holders of the Stock are
entitled to vote or consent, the Depositary shall, as soon as practicable
thereafter, mail to the Record Holders of Depositary Shares a notice that shall
contain (i) such information as is contained in such notice of meeting or action
and (ii) a statement informing holders of Depositary Shares that they may
instruct the Depositary as to the exercise of the voting rights or the giving or
refusal of consent, as the case may be, pertaining to the amount of Stock
underlying their respective Depositary Shares and a brief statement as to the
manner in which such instructions may be given. Upon the written request of the
holders of Depositary Shares on the record date established in accordance with
Section 4.04, the Depositary shall endeavor insofar as practicable to vote or
cause to be voted, or give or withhold consent with respect to such Stock, in
accordance with the instructions set forth in such requests, the maximum number
of whole shares of Stock underlying the Depositary Shares as to which any
particular voting or consent instructions are received. [The Company hereby
agrees to take all reasonable action that may reasonably be deemed necessary by
the Depositary in order to enable the Depositary to vote such Stock or cause
such Stock to be voted or give or withhold consent with respect to such Stock.]
In the absence of specific instructions from the holder of a Depositary Share,
the Depositary will abstain from voting or giving consents (but, at its
discretion, not from appearing at any meeting with respect to such Stock unless
directed to the contrary by the holders of all the Depositary Shares) to the
extent of the Stock underlying the Depositary Shares.
SECTION 4.06. CHANGES AFFECTING DEPOSITED SECURITIES AND
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any change in par or liquidation
value, split-up, combination or any other reclassification of the Stock, or upon
any recapitalization, reorganization, merger,
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amalgamation or consolidation affecting the Company or to which it is a party,
the Depositary may in its discretion, with the approval of, and shall upon the
instructions of, the Company, and (in either case) in such manner as the
Depositary may deem equitable, (i) make such adjustments in (a) the fraction of
an interest in one share of Stock underlying one Depositary Share and (b) the
ratio of the redemption price per Depositary Share to the redemption price of a
share of the Stock, in each case as may be necessary fully to reflect the
effects of such change in par or liquidation value, split-up, combination or
other reclassification of the Stock, or of such recapitalization,
reorganization, merger, amalgamation or consolidation and (ii) treat any
securities that are received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited securities so received
in exchange for or upon conversion of or in respect of such Stock. In any such
case the Depositary may in its discretion, with the approval of the Company,
execute and deliver additional Receipts, or may call for the surrender of all
outstanding Receipts to be exchanged for new Receipts specifically describing
such new deposited securities.
SECTION 4.07. DELIVERY OF REPORTS. The Depositary will forward to Record
Holders of Receipts, at their respective addresses appearing in the Depositary's
books, all notices, reports and communications received from the Company that
are delivered to the Depositary and that the Company is required to furnish to
the holders of Stock or Receipts.
SECTION 4.08. LIST OF HOLDERS. Promptly upon each and every request from
time to time by the Company, the Depositary shall furnish to it a list, as of a
recent date, of the names, addresses and holdings of Depositary Shares of all
persons in whose names Depositary Shares are registered on the books of the
Depositary or Registrar, as the case may be.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE COMPANY
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS BY THE
DEPOSITARY; REGISTRAR. Upon execution of this Deposit Agreement, the Depositary
shall maintain at the Depositary's Offices, or at any Registrar's Office, at
which the Depositary shall have complete access to all books and records
maintained on the Company's behalf, facilities for the execution and delivery,
surrender and exchange of Receipts and the registration and registration of
transfer of Depositary Shares, and at the offices of the Depositary's Agents, if
any, facilities for the delivery, surrender and exchange of Receipts and the
registration of transfer of Depositary Shares, all in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Depositary Shares[, which books [at
all reasonable times] shall [not] be open for inspection by the Record Holders
of Depositary Shares]; [provided, however, that such inspection shall be for a
proper purpose reasonably related to such person's interest as an owner of
Depositary Shares and any such holder requesting to exercise such right shall
certify such fact in writing to the Depositary and the Company.]
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the Stock
underlying such Depositary Shares shall be listed on a stock exchange or the
NASDAQ National Market Systems (the "NMS"), the Depositary may, with the
approval of the Company, appoint a Registrar for registration of such Receipts
or Depositary Shares in accordance with any requirements of such exchange or the
NMS, as applicable. Such Registrar (which may be the Depositary if so
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permitted by the requirements of such exchange or the NMS, as applicable) may be
removed and a substitute registrar appointed by the Depositary upon the written
request or with the written approval of the Company. If the Receipts, such
Depositary Shares or such Stock are listed on one or more other stock exchanges,
the Depositary will, at the request of the Company, arrange such facilities for
the execution, delivery, registration, registration of transfer, surrender and
exchange of such Receipts, such Depositary Shares or such Stock as may be
required by law or applicable stock exchange regulation.
SECTION 5.02. PREVENTION OF OR DELAY IN PERFORMANCE BY THE DEPOSITARY, THE
DEPOSITARY'S AGENTS, ANY REGISTRAR OR THE COMPANY. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Depositary Share if by reason of any provision of
any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of the
Depositary, any Depositary's Agent or any Registrar, by reason of any provision,
present or future, of the Company's Articles or Certificate of Incorporation
(including the Certificate) or by reason of any act of God or war or other
circumstance beyond the control of the relevant party, the Depositary, any
Depositary's Agent, any Registrar or the Company shall be prevented or forbidden
from doing or performing any act or thing that the terms of this Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, any Registrar or the Company incur any liability to any
holder of a Depositary Share (i) by reason of any nonperformance or delay, which
is the result of any of the foregoing, in the performance of any act or thing
that the terms of this Deposit Agreement provide shall or may be done or
performed or (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement except in case of any such
exercise or failure to exercise discretion caused by the [negligence, as to the
Depositary], gross negligence or willful misconduct of the party charged with
such exercise or failure to exercise.
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, ANY
REGISTRAR AND THE COMPANY. Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement to holders of Depositary Shares other
than for such person's own [negligence, as to the Depositary], gross negligence
or willful misconduct.
[Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Stock, the Depositary Shares
or the Receipts that in its opinion may involve it in expense or liability
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.]
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
from any person presenting Stock for deposit, any holder of a Depositary Share
or any other person reasonably believed by it in good faith to be competent to
give such information. The Depositary, any Depositary's Agent, any Registrar and
the Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the shares of Stock or for the manner or effect of
any such vote, as long as any such action or non-action is in good faith. The
Depositary undertakes, and any Registrar shall be required to undertake, to
perform such duties and only such duties as are specifically set forth in this
Deposit Agreement, and no implied covenants or obligations shall be read into
this Deposit Agreement against the Depositary or any Registrar. The Depositary
shall indemnify the Company against any
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liability that may arise out of acts performed or omitted by the Depositary or
its agents due to its or their [negligence,] gross negligence, bad faith or
willful misconduct. The Depositary, the Depositary's agents, any Registrar and
the Company may own and deal in any class of securities of the Company and its
affiliates and in Depositary Shares. The Depositary may also act as transfer
agent or registrar of any of the securities of the Company and its affiliates.
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary
hereunder by written notice of its election so to be delivered to the Company,
such resignation to take effect upon the appointment of a successor Depositary
and such successor's written acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by written notice
of such removal delivered to the Depositary, such removal to take effect upon
the appointment of a successor Depositary and such successor's written
acceptance of such appointment as hereinafter provided.
In case the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
[$50,000,000]. If no successor Depositary shall have been so appointed within 60
days after delivery of such notice, the resigning or removed Depositary may
petition any court of competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon the written
request of the Company, shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Stock and any
moneys or property held hereunder to such successor and shall deliver to such
successor a list of the Record Holders of all outstanding Depositary Shares. Any
successor Depositary shall promptly mail notice of its appointment to the Record
Holders of Depositary Shares. Thereafter, any predecessor Depositary shall
deliver any correspondence received from any holders of Depositary Shares to the
successor Depositary.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
Depositary may authenticate the Receipts in the name of the predecessor
Depositary or in the name of the successor Depositary.
SECTION 5.05. CORPORATE NOTICES AND REPORTS. The Company agrees that it
will transmit to the Depositary all notices, reports and communications
(including without limitation financial statements) required by law, the rules
of any national securities exchange upon which the Stock, the Depositary Shares
or the Receipts are listed or by the Company's Certificate of Incorporation
(including the Certificate) to be furnished by the Company to holders of the
Stock.
SECTION 5.06. INDEMNIFICATION BY THE COMPANY. The Company shall indemnify
the Depositary, any Depositary's Agent and any Registrar against, and hold each
of them harmless from, any loss, liability or expense (including the costs and
expenses of defense) that may arise out of acts performed or omitted in
connection with this Deposit Agreement and the Depositary Shares (a) by the
Depositary, any Registrar or any of their respective agents (including any
Depositary's Agent), except for any liability arising out of [negligence,] gross
negligence, willful
11
<PAGE> 16
misconduct or bad faith on the respective parts of any such person or persons or
(b) by the Company or any of its agents, arising out of the Company's or its
agents' [negligence,] gross negligence, willful misconduct or bad faith. The
obligations of the Company set forth in this Section 5.06 shall survive any
succession of any Depositary, Registrar or Depositary's Agent.
SECTION 5.07. CHARGES AND EXPENSES. The Company shall pay all transfer and
other taxes and governmental charges arising solely from the existence of the
depositary arrangements. The Company shall pay all charges of the Depositary
agreed upon in writing by the Company and the Depositary in connection with the
initial deposit of the Stock and the initial issuance of the Receipts, any
redemption of the Stock at the option of Company and any withdrawals of Stock by
holders of Depositary Shares. All other transfer and other taxes and
governmental charges shall be at the expense of holders of [Depositary Shares]
[Receipts]. If, at the request of a holder of a Depositary Share, the Depositary
incurs charges or expenses for which it is not otherwise liable hereunder, such
holder will be liable for such charges and expenses. The Depositary shall
present its statement for charges and expenses to the Company once every three
months or at such other intervals as the Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. AMENDMENT. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable; provided, however, that no such amendment that
shall materially and adversely alter the rights of the existing holders of
Depositary Shares shall be effective unless such amendment shall have been
approved by the holders of at least a majority of the Depositary Shares then
outstanding. Every holder of an outstanding Depositary Share at the time any
such amendment becomes effective shall be deemed, by continuing to hold such
Depositary Share, to consent and agree to such amendment and to be bound by this
Deposit Agreement as amended thereby.
SECTION 6.02. TERMINATION. This Deposit Agreement may be terminated by the
Company or the Depositary only after (i) all outstanding Depositary Shares have
been redeemed and any accumulated and unpaid dividends on the Stock represented
by the Depositary Shares, together with all other moneys and property, if any,
to which holders of the related Receipts are entitled under the terms of such
Receipts or this Deposit Agreement, have been paid or distributed as provided in
this Deposit Agreement or provision therefor has been duly made pursuant to
Section 2.03 or (ii) there shall have been made a final distribution in respect
of the Stock in connection with any liquidation, dissolution or winding up of
the Company and such distribution shall have been distributed to the holders of
Receipts pursuant to Section 4.01 or 4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agents and any Registrar under
Sections 5.06 and 5.07.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.01. COUNTERPARTS. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
12
<PAGE> 17
SECTION 7.02. EXCLUSIVE BENEFIT OF PARTIES. This Deposit Agreement is for
the exclusive benefit of the parties hereto [and the holders from time to time
of the Receipts], and their respective successors hereunder, and shall not be
deemed to give any legal or equitable right, remedy or claim to any other person
whatsoever.
SECTION 7.03. INVALIDITY OF PROVISIONS. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. NOTICES. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or telegram or telex
confirmed by letter, addressed to the Company at 6001 24th Street, Phoenix,
Arizona 85016, to the attention of General Counsel, or at any other address of
which the Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's Office, at
________________ , or at any other address of which the Depositary shall have
notified the Company in writing.
Any and all notices to be given to any Record Holder of a Depositary Share
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram or telex
confirmed by letter, addressed to such Record Holder at the address of such
Record Holder as it appears on the books of the Depositary, or if such holder
shall have filed with the Depositary a written request that notices intended for
such holder be mailed to some other address, at the address designated in such
request.
[Delivery of a notice sent by mail or by telegram or telex shall be deemed
to be effected at the time when a duly addressed letter containing the same (or
a confirmation thereof in the case of a telegram or telex message) is deposited,
postage prepaid, in a post office letter box.] The Depositary or Company may,
however, act upon any telegram or telex message received by it from the other or
from any holder of a Depositary Share, notwithstanding that such telegram or
telex message shall not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. DEPOSITARY'S AGENTS. The Depositary may from time to time,
upon written notice to, and with the prior approval of, the Company, appoint
Depositary's Agents to act in any respect for the Depositary for the purposes of
this Deposit Agreement and may terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such termination.
SECTION 7.06. HOLDERS OF RECEIPTS ARE PARTIES. The holders of Depositary
Shares from time to time shall be parties to this Deposit Agreement shall be
bound by all of the terms and conditions hereof and of the Receipts evidencing
such Depositary Shares by acceptance of delivery thereof.
SECTION 7.07. GOVERNING LAW. THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND
ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
____________ WITHOUT REFERENCE TO CHOICE OR CONFLICT OF LAW PRINCIPLES.
13
<PAGE> 18
SECTION 7.08. INSPECTION OF DEPOSIT AGREEMENT. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Depository Share.
SECTION 7.09. HEADINGS. The headings of articles and sections in this
Deposit Agreement and in the form of Receipt set forth in Exhibit A hereto have
been inserted for convenience only and are not to be regarded as part of this
Deposit Agreement or the Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
The Company and the Depositary have duly executed this Deposit Agreement
as of the day and year first above set forth, and all holders of Depositary
Shares shall become parties hereto by and upon acceptance by them of delivery of
Receipts evidencing such Depositary Shares and issued in accordance with the
terms hereof.
DEL WEBB CORPORATION
By:__________________________________
Authorized Officer
[DEPOSITARY]
By:_________________________________
Authorized Officer
14
<PAGE> 19
EXHIBIT A
FORM OF DEPOSITARY RECEIPT
FOR DEPOSITARY SHARES
(GENERAL FORM OF FACE OF RECEIPT)
NUMBER DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING ___________ PREFERRED STOCK
DEL WEBB CORPORATION
Incorporated under the laws of the State of Delaware
This Depositary Receipt is transferable
in the City of ________________,
State of ____________
______________________ , as Depositary, (the "Depositary"), hereby certifies
that _______________________ is the registered owner of ________________
Depositary Shares ("Depositary Shares"), each Depositary Share representing ____
(_____) of one share of _____________ Preferred Stock, par value $ _____ per
share (the "Stock"), of Del Webb Corporation, a Delaware corporation (the
"Company"), on deposit with the Depositary, subject to the terms and entitled to
the benefits of the Deposit Agreement dated as of ________________, 199__ (the
"Deposit Agreement"), between the Company, the Depositary and all holders from
time to time of Depositary Receipts. By accepting this Depositary Receipt the
holder hereof becomes a party to and agrees to be bound by all the terms and
conditions of the Deposit Agreement. This Depositary Receipt shall not be valid
or obligatory for any purpose or entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the manual
signature of a duly authorized officer or, if executed in facsimile by the
Depositary, countersigned by a Registrar in respect of the Depositary Receipts
by the manual signature of a duly authorized officer thereof.
Dated: Depositary
By: __________________________
Authorized Officer
Registrar
By: __________________________
Authorized Officer
A-1
<PAGE> 20
[GENERAL FORM OF REVERSE OF RECEIPT]
DEL WEBB CORPORATION
Del Webb Corporation will furnish without charge to each receiptholder who
so requests, a copy of the Deposit Agreement and a statement or summary of the
powers, designations, preferences and relative, participating, optional or other
special rights of the Preferred Stock.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - ________________ Custodian ________________
under the Uniform Gifts to Minors Act ___________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, ______________ hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code and social
security or other identifying number of Assignee) ________________ Depositary
Shares represented by the within Receipt and all rights thereunder, and do
hereby irrevocably constitute and appoint ________________ attorney to transfer
those Depositary Shares on the books of the within-named Depositary with full
power of substitution in the premises.
Dated:_________
_______________________________
NOTICE: The signature to this
assignment must correspond
with the name as written upon
the face of this instrument in
every particular, without
alteration or enlargement or
any charge whatever.
A-2
<PAGE> 1
Exhibit 5 (Opinion)
June 22, 1999
C 95181-00132
Del Webb Corporation
6001 24th Street
Phoenix, Arizona 85016
Re: Public Offering of $150 million
of Debt Securities, Warrants,
Preferred Shares and Common Shares
Ladies and Gentlemen:
We have acted as special counsel to Del Webb Corporation, a
Delaware corporation (the "Company"), in connection with the registration under
the Securities Act of 1933, as amended, pursuant to the Registration Statement
to which this opinion is an Exhibit (the "Registration Statement"), of $150
million of (i) the Company's Senior, Subordinated and Senior Subordinated Debt
Securities, issued separately or in exchange for the Preferred Shares referred
to below (the "Debt Securities"), (ii) the Warrants (the "Warrants") to purchase
shares of Common Stock and Preferred Stock of the Company, (iii) the shares of
Preferred Stock (the "Preferred Shares") and the shares of Common Stock (the
"Common Shares") issuable separately, on conversion of any Debt Securities
issued that are convertible into Common Shares or Preferred Shares and upon
exercise of any Warrants so issued and (iv) the Common Shares issuable upon
conversion of any Preferred Shares so issued that are convertible into Common
Shares. The Debt Securities, Warrants, Preferred Shares and Common Shares may
also be issued as part of units consisting of any combination of such
securities.
We are familiar with the corporate action taken and proposed
to be taken by the Company in connection with the authorization, issuance and
sale of the Debt Securities, the
Exhibit 5
<PAGE> 2
Del Webb Corporation
June 22, 1999
Page 2
Warrants, the Preferred Shares and the Common Shares and have made such other
legal and factual inquiries as we deem necessary for purposes of rendering this
opinion.
Based on the foregoing and in reliance thereon, and subject to
completion of the corporate action proposed to be taken by the Company referred
to above (including without limitation the due reservation of the Common Shares
and Preferred Shares for issuance and, with respect to the Preferred Shares, the
due authorization, approval and filing of the Certificate of Designations
referred to below), the effectiveness of the Registration Statement, the due
execution and delivery of the Indenture(s) pursuant to which the Debt Securities
will be issued (together, the "Indenture") and the Warrant Agreement relating to
the Warrants (the "Warrant Agreement"), each in materially the form filed as an
Exhibit to the Registration Statement, and the qualifications and limitations
set forth below, we are of the opinion that:
(a) the Debt Securities and Warrants, upon the issuance
thereof and timely payment in full therefor in the
manner described in the Registration Statement and
the Prospectus Supplement describing the terms of the
Debt Securities and Warrants as issued, will be
validly issued, fully paid and nonassessable;
(b) the Debt Securities so issued will be legally binding
obligations of the Company, entitled to the benefits
provided under the Indenture pursuant to which they
are issued;
(c) any Warrants so issued will be legally binding
obligations of the Company, entitled to the benefits
provided under the applicable Warrant Agreement; and
(d) the Preferred Shares and Common Shares issued
separately or upon the conversion of any Debt
Securities so issued that are convertible and upon
the exercise of any Warrants so issued (as to the
Preferred Shares, when issued pursuant to the
Certificate of Designations pursuant to Section 151
of the Delaware General Corporation Law in materially
the form filed as an Exhibit to the Registration
Statement (the "Certificate of Designations")), and
the Common Shares issued upon conversion or exchange
of any such Preferred Shares so issued that are
convertible or exchangeable into Common Shares (i)
will have been duly authorized
<PAGE> 3
Del Webb Corporation
June 22, 1999
Page 3
and reserved for issuance separately, upon conversion
of such Debt Securities, exercise of any such
Warrants and conversion or exchange of any such
convertible Preferred Shares, upon the respective
issuance of each, as the case may be, and (ii) upon
the issuance of such Preferred Shares and Common
Shares separately against payment in full therefor or
pursuant to (x) the Indenture upon valid conversion
of such Debt Securities, (y) exercise of such
Warrants and payment in full of the exercise price
provided for therein or (z) valid conversion of any
such Preferred Shares so issued that are convertible
into Common Shares in accordance with the Certificate
of Designations, as the case may be, will be validly
issued, fully paid and nonassessable.
Our opinions set forth above are subject to the effect of (a)
applicable bankruptcy, reorganization, insolvency, moratorium and other similar
laws and court decisions of general application (including without limitation
statutory or other laws regarding fraudulent or preferential transfers) relating
to, limiting or affecting the enforcement of creditors' rights generally, (b)
general principles of equity that may limit the enforceability of any of the
remedies, covenants or other provisions of the Debt Securities, the Indenture,
the Warrants, the Warrant Agreement and the Certificate of Designations and the
availability of injunctive relief or other equitable remedies and (c) the
application of principles of equity (regardless of whether enforcement is
considered in proceedings at law or in equity) as such principles relate to,
limit or affect the enforcement of creditors' rights generally.
In addition, we express no opinion as to: (a) any provisions
of the Debt Securities, the Indenture, the Warrant Agreement, the Warrants or
the Certificate of Designations regarding the remedies available to any person
(1) to take action that is arbitrary, unreasonable or capricious or is not taken
in good faith or in a commercially reasonable manner, whether or not such action
is permitted under the Debt Securities, the Indenture, the Warrant Agreement,
the Warrants or the Certificate of Designations or (2) for violations or
breaches that are determined by a court to be non-material or without
substantially adverse effect upon the ability of the Company to perform its
material obligations under the Debt Securities, the Indenture, the Warrant
Agreement, the Warrants or the Certificate of Designations; or (b) the
provisions of the Debt Securities or the Indenture that may provide for interest
on interest or penalty interest.
<PAGE> 4
Del Webb Corporation
June 22, 1999
Page 4
The Company is a Delaware corporation. We are not admitted to
practice in Delaware. However, we are generally familiar with the Delaware
General Corporation Law and have made such review thereof as we consider
necessary for the purpose of this opinion. Subject to the foregoing, this
opinion is limited to Delaware, New York and federal law.
This opinion may not be quoted in whole or in part without the
prior written consent of this Firm.
You have informed us that you intend to issue the one or more
of the Common Shares, Preferred Shares, Debt Securities and Warrants from time
to time on a delayed or continuous basis, and this opinion is limited to the
laws referred to above as in effect on the date hereof. We understand that prior
to issuing any Common Shares, Preferred Shares, Debt Securities or Warrants you
will advise us in writing of the terms thereof, will afford us an opportunity to
review the operative documents pursuant to which such Common Shares, Preferred
Shares, Debt Securities and Warrants are to be issued (including the applicable
Prospectus Supplement) and will file such supplement or amendment to this
opinion (if any) as we may reasonably consider necessary or appropriate by
reason of the terms of such Debt Securities.
We hereby consent to the use of our name under the caption
"Certain Legal Matters" in the Prospectus forming a part of the Registration
Statement and to the filing of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
GIBSON, DUNN & CRUTCHER LLP
SAM
<PAGE> 1
EXHIBIT 12
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS, EXCEPT RATIOS)
<TABLE>
<CAPTION>
Nine Months Ended
March 31, Year Ended June 30,
----------------- -----------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Earnings (loss) from continuing
operations before income taxes $ 53,697 $ 38,923 $ 66,458 $ 62,009 $(11,924) $ 43,832 $ 26,186
Add:
Fixed charges 61,041 45,930 65,026 54,388 54,292 48,226 34,891
Amortization of capitalized interest
in costs and expenses 38,736 31,472 46,212 49,457 42,354 31,205 18,003
Deduct:
Interest incurred (57,939) (43,136) (61,546) (51,917) (52,022) (46,641) (33,677)
-------- ------- -------- -------- -------- -------- --------
Earnings, as adjusted $ 95,535 $ 73,189 $116,150 $113,937 $ 32,700 $ 76,622 $ 45,403
======== ======= ======== ======== ======== ======== ========
Fixed charges:
Interest incurred and amortization of
deferred financing costs $ 57,939 $ 43,136 $ 61,546 $ 51,917 $ 52,022 $ 46,641 $ 33,677
Interest expense component of rent
expense 3,102 2,794 3,480 2,471 2,270 1,585 1,214
-------- ------- -------- -------- -------- -------- --------
Total fixed charges $ 61,041 $ 45,930 $ 65,026 $ 54,388 $ 54,292 $ 48,226 $ 34,891
======== ======= ======== ======== ======== ======== ========
Ratio of earnings to fixed charges 1.57x 1.59x 1.79x 2.09x (1) 1.59x 1.30x
======== ======= ======== ======== ======== ======== ========
</TABLE>
- -----------
(1) Earnings were inadequate to cover fixed charges by $21.6 million.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Del Webb Corporation
We consent to the use of our report dated August 21, 1998 incorporated herein
by reference and to the reference to our firm under the heading "Experts" in
the Prospectus. Our report refers to a change in the method of accounting for
impairment of long-lived assets.
Phoenix, Arizona
June 25, 1999
<PAGE> 1
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a trustee
Pursuant to Section 305(b) ____
BANK OF MONTREAL TRUST COMPANY
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
New York 13-4941093
(JURISDICTION OF INCORPORATION OR ORGANIZATION (I.R.S. EMPLOYER
IF NOT A U.S. NATIONAL BANK) IDENTIFICATION NO.)
Wall Street Plaza
88 Pine Street
New York, New York 10005
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Mark F. McLaughlin
Bank of Montreal Trust Company
Wall Street Plaza
88 Pine Street, New York, New York 10005
(212) 701-7602
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
Del Webb Corporation.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
Delaware 13-3993031
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
60001 North 24th Street
Phoenix, Arizona 85016
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
Debt Securities
(TITLE OF THE INDENTURE SECURITIES)
<PAGE> 2
- 2 -
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Reserve Bank of New York
33 Liberty Street, New York N.Y. 10045
State of New York Banking Department
2 Rector Street, New York, N.Y. 10006
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
The obligor is not an affiliate of the trustee.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this statement of eligibility.
Exhibit 1 - Copy of Organization Certificate of Bank of Montreal Trust
Company to transact business and exercise corporate trust
powers; incorporated herein by reference as Exhibit "A" filed
with Form T-1 Statement, Registration No. 33-46118.
Exhibit 4 - Copy of the existing By-Laws of Bank of Montreal Trust
Company; incorporated herein by reference as Exhibit "B" filed
with Form T-1 Statement, Registration No. 33-80928.
Exhibit 6 -The consent of the Trustee required by Section 321(b) of
the Act; incorporated herein by reference as Exhibit "C" with
Form T-1 Statement, Registration No. 33-46118.
Exhibit 7 - A copy of the latest report of condition of Bank of
Montreal Trust Company published pursuant to law or the
requirements of its supervising or examining authority,
attached hereto as Exhibit "D".
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939 the Trustee, Bank of Montreal Trust Company, a corporation
organized and existing under the laws of the State of New York, has
duly caused this statement of eligibility to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of New
York, and State of New York, on the 11th day of September, 1998.
BANK OF MONTREAL TRUST COMPANY
By: /s/ PETER MORSE
------------------
Peter Morse
Vice President
<PAGE> 3
Exhibit 7
EXHIBIT "D"
STATEMENT OF CONDITION
BANK OF MONTREAL TRUST COMPANY
NEW YORK
---------------------------------
<TABLE>
<CAPTION>
ASSETS
<S> <C>
Due From Banks $ 528,979
-----------
Investment Securities:
State & Municipal 17,085,290
Other 100
-----------
TOTAL SECURITIES 17,085,390
Loans and Advances
Federal Funds Sold 4,400,000
Overdrafts 10,000
-----------
TOTAL LOANS AND ADVANCES 4 ,410,000
-----------
Investment in Harris Trust, NY 8,509,571
Premises and Equipment 288,644
Other Assets 2,965,076
-----------
11,763,291
-----------
TOTAL ASSETS $33,787,660
===========
LIABILITIES
Trust Deposits $ 8,680,937
Other Liabilities 824,388
-----------
TOTAL LIABILITIES 9,505,325
-----------
CAPITAL ACCOUNTS
Capital Stock, Authorized, Issued and
Fully Paid - 10,000 Shares of $100 Each 1,000,000
Surplus 4,222,188
Retained Earnings 19,048,815
Equity - Municipal Gain/Loss 11,332
-----------
TOTAL CAPITAL ACCOUNTS 24,282,335
-----------
TOTAL LIABILITIES
AND CAPITAL ACCOUNTS $33,787,660
===========
</TABLE>
I, Mark F. McLaughlin, Vice President, of the above-named bank do
hereby declare that this Report of Condition is true and correct to the best of
my knowledge and belief.
Mark F. McLaughlin
December 31, 1997
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declared that it has been examined by
us, and to the best of our knowledge and belief has been prepared in conformance
with the instructions and is true and correct.
Sanjiv Tandon
Kevin O. Healy
Steven R. Rothbloom
