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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 14, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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AMERICAN CLASSIC VOYAGES CO. DELAWARE 31-0303330
AMCV CAPITAL TRUST I DELAWARE APPLIED FOR
(Exact Name of Registrant as (State or Other Jurisdiction of (I.R.S. Employer
Specified in its Charter) Incorporation or Organization) Identification No.)
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TWO NORTH RIVERSIDE PLAZA, SUITE 200, CHICAGO, IL 60606, (312) 258-1890
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
JORDAN B. ALLEN
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
AMERICAN CLASSIC VOYAGES CO.
TWO NORTH RIVERSIDE PLAZA, SUITE 200, CHICAGO, IL 60606, (312) 466-6202
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
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Copies To:
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DAVID S. STONE, ESQ. IMAD I. QASIM, ESQ.
SEYFARTH, SHAW, FAIRWEATHER & GERALDSON SIDLEY & AUSTIN
55 EAST MONROE BANK ONE PLAZA
SUITE 4200 10 SOUTH DEARBORN STREET
CHICAGO, IL 60603 CHICAGO, IL 60603
TELEPHONE: (312) 269-8965 TELEPHONE: (312) 853-7094
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, 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, 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, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for 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. [ ]
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED(1) UNIT(2)(3) PRICE(2)(3) REGISTRATION FEE(3)(4)
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Common Stock of American Classic
Voyages Co.(4)......................
Preferred Stock of American Classic
Voyages Co.(4)....................
Subordinated Debt Securities of
American Classic Voyages Co.......
Preferred Securities of AMCV Capital
Trust I...........................
Guarantees and back-up undertaking
of American Classic Voyages Co. in
connection with the Preferred
Securities of AMCV Capital Trust
I(5)..............................
Total............................... $250,000,000 100% $250,000,000 $66,000
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(1) Such indeterminate number or amount of Common Stock, Preferred Stock,
Subordinated Debt Securities and Guarantees of American Classic Voyages Co.
and the Preferred Securities of AMCV Capital Trust I as may from time to
time be issued at indeterminate prices. Subordinated Debt Securities of
American Classic Voyages Co. may be issued and sold to the AMCV Capital
Trust I, in which event such Subordinated Debt Securities may later be
distributed to the holders of Preferred Securities of the AMCV Capital Trust
I upon a dissolution of such trust and the distribution of the assets
thereof.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933. The aggregate
offering price of the Common Stock, Preferred Stock, Subordinated Debt
Securities, Preferred Securities and Guarantees will not exceed
$250,000,000.
(3) Exclusive of accrued interest and distributions, if any.
(4) Also includes such indeterminate number of shares of Preferred Stock and
Common Stock as may be issued upon conversion of or exchange for any
Subordinated Debt Securities, Preferred Stock or Preferred Securities of
AMCV Capital Trust I that provide for conversion or exchange into other
securities. No separate consideration will be received for the Preferred
Stock or Common Stock issuable upon conversion of or in exchange for
Subordinated Debt Securities, Preferred Stock or Preferred Securities of
AMCV Capital Trust I.
(5) Includes the rights of holders of the Preferred Securities under the
Guarantees of Preferred Securities and back-up undertakings, consisting of
obligations of American Classic Voyages Co. to provide certain indemnities
in respect of, and pay and be responsible for, certain expenses, costs,
liabilities and debts of, as applicable, the AMCV Capital Trust I as set
forth in the Declaration of Trust (including the obligation to pay expenses
of the AMCV Capital Trust I), the indenture and any applicable supplemental
indentures thereto, and the Subordinated Debt Securities issued to the AMCV
Capital Trust I, in each case as further described in the Registration
Statement. No separate consideration will be received for the Guarantees or
any back-up undertakings.
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 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This prospectus is
not an offer to sell these securities and it is not soliciting an offer to
buy these securities in any state where the offer or sale is not
permitted.
SUBJECT TO COMPLETION
DATED JANUARY 14, 2000
PROSPECTUS
$250,000,000
AMERICAN CLASSIC VOYAGES CO.
COMMON STOCK, PREFERRED STOCK AND SUBORDINATED DEBT SECURITIES
AMCV CAPITAL TRUST I
PREFERRED SECURITIES FULLY AND UNCONDITIONALLY
GUARANTEED BY AMERICAN CLASSIC VOYAGES CO.
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We will provide the specific terms of the particular securities issued
under this prospectus in a prospectus supplement for each security. You should
read this prospectus and any prospectus supplement carefully before investing.
The amount of the securities issued under this prospectus will be limited
to a total of U.S. $250,000,000 or the equivalent amount if denominated in
foreign currencies.
Our common stock is quoted on the Nasdaq National Market under the symbol
"AMCV."
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is , 2000.
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TABLE OF CONTENTS
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PAGE
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About This Prospectus....................................... 1
Where You Can Find Additional Information................... 1
Incorporation by Reference.................................. 1
The Securities We May Offer................................. 2
American Classic Voyages Co. ............................... 3
The AMCV Trust.............................................. 3
Use of Proceeds............................................. 5
Ratio of Earnings to Fixed Charges and Ratio of Earnings to
Combined Fixed Charges and Preferred and Preference
Dividend Requirements..................................... 5
Description of Subordinated Debt Securities................. 5
Description of Capital Stock................................ 15
Description of Preferred Securities of the AMCV Trust....... 18
Description of Guarantees................................... 20
Plan of Distribution........................................ 23
Special Note Regarding Forward-Looking Statements........... 25
Legal Matters............................................... 25
Experts..................................................... 26
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ABOUT THIS PROSPECTUS
In this prospectus, American Classic Voyages Co. may be referred to as
"American Classic Voyages" or "we." This prospectus is part of a registration
statement that we and AMCV Capital Trust I, referred to in this prospectus as
the "AMCV Trust," filed with the Securities and Exchange Commission utilizing a
"shelf" registration process. Under this shelf process, we may sell any
combination of the securities described in this prospectus in one or more
offerings up to a total dollar amount of $250,000,000. This prospectus provides
you with a general description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with additional
information described under the heading "WHERE YOU CAN FIND ADDITIONAL
INFORMATION."
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file reports, proxy statements and other information with the SEC. Those
reports, proxy statements and other information may be obtained:
- At the Public Reference Room of the SEC, Room 1024, Judiciary Plaza, 450
Fifth Street, N.W., Washington, DC 20549;
- At the public reference facilities at the SEC's regional offices located
at Seven World Trade Center, 13th Floor, New York, New York 10048 or 500
West Madison Street, Suite 1400, Chicago, Illinois 60661;
- By writing to the SEC, Public Reference Section, Judiciary Plaza, 450
Fifth Street, N.W., Washington, DC 20549 or calling the SEC at
1-800-SEC-0330;
- At the offices of the National Association of Securities Dealers, Inc.,
Reports Section, 1735 K Street, N.W., Washington, DC 20006; or
- From the Internet site maintained by the SEC at http://www.sec.gov which
contains reports, proxy and information statements and other information
regarding issuers that file electronically with the SEC.
Some locations may charge prescribed or modest fees for copies.
We and the AMCV Trust have filed with the SEC a registration statement on
Form S-3 under the Securities Act of 1933 covering the securities offered by
this prospectus. As permitted by the SEC, this prospectus, which constitutes a
part of the registration statement, does not contain all the information
included in the registration statement. Such additional information may be
obtained from the locations described above. Statements contained in this
prospectus as to the contents of any contract or other document are not
necessarily complete. You should refer to the contract or other document for all
the details.
INCORPORATION BY REFERENCE
We have filed the following documents with the SEC under the Exchange Act,
which are incorporated herein by reference:
1. Annual Report on Form 10-K, for the year ended December 31, 1998;
2. Quarterly Reports on Form 10-Q for the period ended March 31, 1999,
as amended on Form 10-Q/A dated November 9, 1999, for the period ended June
30, 1999, as amended on Form 10-Q/A dated November 9, 1999 and for the
period ended September 30, 1999;
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3. Current Reports on Form 8-K dated February 22, 1999, March 26,
1999, as amended on Form 8-K/A dated April 21, 1999, April 14, 1999,
November 3, 1999 and January 14, 2000;
4. Information Statement on Schedule 14C dated March 8, 1999; and
5. The description of the common stock, contained in our Registration
Statement on Form S-1 (Registration No. 33-45139), all amendments thereto
and reports filed for the purpose of updating such description.
All documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act (1) subsequent to the initial filing of this prospectus and
prior to the date it is declared effective and (2) subsequent to the date of
this prospectus and prior to the termination of this offering are incorporated
by reference and become a part of this prospectus and are to be a part hereof
from their date of filing.
Any statement contained in this prospectus or in a document incorporated by
reference is modified or superseded for purposes of this prospectus to the
extent that a statement contained in any such document modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
prospectus.
On written or telephone request, we will provide free of charge to each
person, including any beneficial owner, to whom a copy of this prospectus is
delivered, a copy of any or all of the documents incorporated by reference in
this prospectus but not delivered with this prospectus. Written or telephone
requests for such copies should be directed to our principal office: American
Classic Voyages Co., Two North Riverside Plaza, Suite 200, Chicago, Illinois
60606, Attention: Investor Relations, Telephone: (312) 258-1890.
THE SECURITIES WE MAY OFFER
We may offer and sell from time to time, in one or more series,
- common stock,
- preferred stock, which may be convertible into common stock or other of
our securities, and
- subordinated debt securities, which may be convertible into common stock
or other of our securities.
In addition, the AMCV Trust may offer, from time to time, preferred
securities representing preferred undivided beneficial interests in the assets
of the AMCV Trust, referred to in this prospectus as "preferred securities." The
preferred securities may be convertible into our common stock. We will guarantee
the payment of periodic cash distributions on preferred securities out of moneys
held by the AMCV Trust, and payments on liquidation, redemption or otherwise
with respect to the preferred securities to the extent described in this
prospectus or the applicable prospectus supplement. We will directly or
indirectly acquire common securities representing undivided beneficial interests
in the assets of the AMCV Trust, referred to in this prospectus as "common
securities." We may issue subordinated debt securities in one or more series to
the AMCV Trust as part of the investment of the proceeds from the offering of
preferred securities and common securities of the AMCV Trust. The subordinated
debt securities purchased by the AMCV Trust may be subsequently distributed on a
proportionate basis to holders of preferred securities and common securities in
connection with the dissolution of the AMCV Trust. If the preferred securities
are convertible into our common stock, the subordinated debt securities that we
issue to the AMCV Trust will also be convertible into our common stock.
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AMERICAN CLASSIC VOYAGES CO.
American Classic Voyages Co. is the leading provider of overnight passenger
cruises among the Hawaiian Islands and on the Mississippi River system. We
currently operate two cruise lines under the names American Hawaii Cruises and
The Delta Queen Steamboat Co. American Hawaii offers year-round cruises among
the Hawaiian Islands aboard the S.S. Independence, which has 867 passenger
berths. A berth is the industry term for a bed or sleeping space. Delta Queen
operates year-round cruises on three authentic paddlewheel riverboats, the Delta
Queen, Mississippi Queen and American Queen, which have a total of 1,026
passenger berths. Delta Queen cruises provide varied itineraries on the
Mississippi River system featuring the culture and history of heartland America.
We are preparing to operate a third cruise line, United States Lines, in
Hawaii, with newly built cruise ships. We are currently building two new cruise
ships for United States Lines to operate in Hawaii. We have also agreed to
purchase and will renovate an existing cruise ship for United States Lines to
operate in Hawaii. In addition, we are building new coastal cruise ships for
Delta Queen to operate on the U.S. coastal waterways and we are converting a
ship we recently purchased for Delta Queen to operate on the Columbia River
system in the Pacific Northwest.
We are the largest owner and operator of U.S. built, owned and crewed
overnight passenger vessels, documented as "U.S.-flagged" vessels. U.S. law
requires our foreign-flagged competitors to include at least one foreign port in
each itinerary. We, on the other hand, can offer itineraries featuring only U.S.
ports. This gives us a distinct competitive advantage in Hawaii because the
closest foreign port to Hawaii requires a four day sail across the Pacific
Ocean.
Our principal executive offices are located at Two North Riverside Plaza,
Suite 200, Chicago, Illinois 60606, (312) 258-1890.
THE AMCV TRUST
The AMCV Trust is a statutory business trust formed under Delaware law. The
AMCV Trust exists for the exclusive purposes of:
- issuing and selling the preferred securities and the common securities;
- using the proceeds from the sale of the preferred securities and common
securities to acquire our subordinated debt securities; and
- engaging in only those other activities that are related to those
purposes.
All of the common securities will be directly or indirectly owned by
American Classic Voyages. The common securities will rank equally, and payments
will be made proportionally, with the preferred securities, except that, if an
event of default under the declaration of trust of the AMCV Trust has occurred
and is continuing, the rights of the holders of the common securities to payment
of distributions and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of the preferred securities. We will
directly or indirectly acquire common securities in an amount equal to at least
3% of the total capital of the AMCV Trust.
The AMCV Trust has a perpetual term, but may be terminated as provided in
the declaration of trust. The AMCV Trust's business and affairs will be
conducted by the trustees appointed by us as the direct or indirect holder of
all of the common securities. We will be entitled to appoint, remove or replace
any of, or increase or reduce the number of, the trustees of the AMCV Trust. The
declaration of trust will set forth the duties and obligations of the trustees.
The majority of the trustees of the AMCV Trust will be employees or officers of
or persons who are affiliated with American Classic Voyages, who will be
referred to as "administrative trustees." One trustee of the AMCV Trust will be
an institution, referred to as the "property trustee," that is not affiliated
with American Classic Voyages and has a minimum amount of combined capital and
surplus of not less than $50,000,000, which will act as property trustee and as
indenture trustee for the purposes of compliance with the provisions of the
Trust Indenture Act of 1939,
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under the terms of the prospectus supplement. In addition, unless the property
trustee maintains a principal place of business in the State of Delaware and
otherwise meets the requirements of applicable law, one trustee of the AMCV
Trust will be an institution having a principal place of business in, or a
natural person resident of, the State of Delaware, referred to as the "Delaware
trustee." American Classic Voyages will pay all fees and expenses related to the
AMCV Trust and the offering of the preferred securities and the common
securities.
Unless otherwise specified in the applicable prospectus supplement, the
property trustee for the AMCV Trust will be The Bank of New York. Unless
otherwise specified in the applicable prospectus supplement, the Delaware
trustee for the AMCV Trust will be The Bank of New York (Delaware) and its
address in the State of Delaware is White Clay Center, Route 273, Newark,
Delaware, 19711. The principal place of business of the AMCV Trust is c/o
American Classic Voyages Co., Two North Riverside Plaza, Suite 200, Chicago,
Illinois, 60606 telephone (312) 258-1890.
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USE OF PROCEEDS
Unless otherwise indicated in the accompanying prospectus supplement, we
expect to use the net proceeds we receive from the sale of the securities
offered by this prospectus for general corporate purposes, which may include,
without limitation,
- financing the construction, conversion or renovation of additional cruise
ships,
- paying the purchase price, or any portion of the purchase price, for
vessels we may purchase, or that we have already purchased,
- repaying all, or a part of, our obligations to our lenders, or
- replacing third party guarantees of our obligations.
The proceeds from the sale of preferred securities by the AMCV Trust will be
invested in our subordinated debt securities. Any specific allocation of the
proceeds to a particular purpose that has been made at the date of any
prospectus supplement will be described in the prospectus supplement.
RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED AND
PREFERENCE STOCK DIVIDEND REQUIREMENTS
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NINE MONTHS
ENDED SEPTEMBER 30
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1994 1995 1996 1997 1998 1998(C) 1999(C)
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Ratio of earnings to fixed charges and ratio
of earnings to combined fixed charges and
preferred and preference stock dividend
requirements(a)............................. (b) (b) (b) 1.56 1.04 (b) (b)
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(a) The ratio of earnings to combined fixed and preferred and preference stock
dividend requirements for the periods presented is the same as the ratio of
earnings to fixed charges since we have no outstanding preferred stock or
preference stock and, therefore, have no dividend requirements.
(b) No ratio is presented for 1994, 1995 and 1996, and the nine months ended
September 30, 1998 and 1999 as the earnings for these periods were
$4,966,000, $20,784,000, $25,934,000, $2,224,000, and $3,345,000,
respectively, less than the fixed charges.
(c) Because of the seasonal nature of our business, the ratio for the nine month
period may not necessarily be indicative of the ratio that will result for
the full year.
DESCRIPTION OF SUBORDINATED DEBT SECURITIES
We may offer one or more series of subordinated debt securities. Unless
otherwise specified in the applicable prospectus supplement, the subordinated
debt securities will be issued under the subordinated indenture or the junior
convertible subordinated indenture, in each case between us and the trustee
identified in the indenture, forms of which have been filed as exhibits to the
registration statement of which this prospectus forms a part. The subordinated
debt securities we will issue to the AMCV Trust will be issued under the junior
convertible subordinated indenture and all other subordinated debt securities
will be issued under the subordinated indenture.
We have summarized below the material provisions of the indentures and the
subordinated debt securities, or indicated which material provisions will be
described in the applicable prospectus supplement. These descriptions are only
summaries, and you should refer to the indentures which describe completely the
terms and definitions summarized below and contain additional information
regarding the subordinated debt securities.
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The subordinated debt securities will be unsecured obligations of American
Classic Voyages. The subordinated indenture does not limit the aggregate amount
of subordinated debt securities that we may issue, while the junior convertible
subordinated indenture will provide for the issuance of a single series of a
limited aggregate amount of subordinated debt securities. The indentures do not
limit the incurrence or issuance by us of other secured or unsecured debt. The
subordinated debt securities issued under the indentures will be subordinate and
junior in right of payment, to the extent and in the manner set forth in the
indentures, to all of our senior indebtedness. See "-- Subordination under the
Indentures."
The applicable prospectus supplement will describe the specific terms of
the series of subordinated debt securities being offered. The following terms
may be included:
- the title, designation and purchase price, of the subordinated debt
securities;
- whether the subordinated debt securities will be issued under the
subordinated indenture, the junior convertible subordinated indenture or
another indenture described in the prospectus supplement;
- any limit upon the aggregate principal amount of the subordinated debt
securities;
- the date or dates on which the principal of and premium, if any, on the
subordinated debt securities will mature or the method of determining or
resetting the date or dates;
- the rate or rates, which may be fixed or variable, at which the
subordinated debt securities will bear interest, if any, or the method of
calculating or resetting the rate or rates;
- the date or dates from which interest, if any, will accrue or the method
by which the date or dates will be determined;
- the date or dates on which interest, if any, will be payable and the
record date or dates for payment of interest;
- the place or places where principal of, premium, if any, and interest, if
any, on the subordinated debt securities will be payable;
- our right, if any, to defer payment of interest on subordinated debt
securities and the maximum length of any permitted deferral period;
- the period or periods within which, the price or prices at which, the
currency or currencies, including currency unit or units, in which, and
the terms and conditions upon which, the subordinated debt securities may
be redeemed, in whole or in part, at our option;
- our obligation, if any, to redeem or purchase the subordinated debt
securities under any sinking fund or similar provisions or upon the
happening of a specified event and the period or periods within which,
the price or prices at which and the other terms and conditions upon
which, the subordinated debt securities will be redeemed or purchased, in
whole or in part, under these obligations;
- the authorized denominations of the subordinated debt securities;
- the currency or currency unit for which subordinated debt securities may
be purchased or in which subordinated debt securities may be denominated
and/or the currency or currencies, including currency unit or units, in
which principal of, premium, if any, and interest, if any, on the
subordinated debt securities will be payable and whether we or the
holders of any subordinated debt securities may elect to receive payments
in respect of the subordinated debt securities in a currency or currency
unit other than that in which the subordinated debt securities are stated
to be payable;
- if other than the principal amount of the subordinated debt securities,
the portion of the principal amount of the subordinated debt securities
which will be payable upon declaration of the acceleration of the
maturity thereof or the method by which that portion will be determined;
- the person to whom any interest on any subordinated debt security will be
payable if other than the person in whose name the subordinated debt
security is registered on the applicable record date;
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- any addition to, or modification or deletion of, any event of default or
any of our covenants specified in the indenture for the subordinated debt
securities;
- the application, if any, of defeasance or covenant defeasance provisions
to the subordinated debt securities;
- whether the subordinated debt securities are to be issued in whole or in
part in the form of one or more temporary or permanent global securities
and, if so, the identity of the depositary for the global security or
securities;
- any federal income tax considerations applicable to holders of the
subordinated debt securities;
- whether the subordinated debt securities are convertible or exchangeable
into our common stock or other securities and any provisions relating to
the conversion or exchange; and
- any other special terms relating to the subordinated debt securities.
Unless otherwise specified in the applicable prospectus supplement, the
subordinated debt securities will not be listed on any securities exchange.
Subordinated debt securities will be issued in fully-registered form without
coupons.
If we issue subordinated debt securities to the AMCV Trust in connection
with the issuance of preferred securities by the trust, those subordinated debt
securities could be subsequently issued to holders of preferred securities if
the AMCV Trust is dissolved. We will only issue one series of subordinated debt
securities to the AMCV Trust in connection with an issuance of preferred
securities by the AMCV Trust.
Subordinated debt securities may be sold at a substantial discount below
their stated principal amount, bearing no interest or interest at a rate which
at the time of issuance is below market rates. Federal income tax consequences
and special considerations applicable to these subordinated debt securities, or
to subordinated debt securities issued at par that are treated as having been
issued at a discount, will be described in the applicable prospectus supplement.
If the purchase price of any of the subordinated debt securities is payable
in one or more foreign currencies or currency units or if any subordinated debt
securities are denominated in one or more foreign currencies or currency units
or if the principal of, premium, if any, or interest, if any, on any
subordinated debt securities is payable in one or more foreign currencies or
currency units, or by reference to commodity prices, equity indices or other
factors, the restrictions, elections, federal income tax considerations,
specific terms and other information about the issue of subordinated debt
securities and the foreign currency or currency units or commodity prices,
equity indices or other factors will be set forth in the applicable prospectus
supplement. In general, holders of these series of subordinated debt securities
may receive a principal amount on any principal payment date, or a payment of
premium, if any, on any premium interest payment date or a payment of interest
on any interest payment date, that is greater than or less than the amount of
principal, premium, if any, or interest otherwise payable on the payment dates,
depending on the value on the payment dates of the applicable currency,
commodity, equity index or other factor.
PAYMENT, REGISTRATION, TRANSFER AND EXCHANGE
Unless otherwise provided in the applicable prospectus supplement, payments
with respect to the subordinated debt securities will be made in the designated
currency at the office or agency maintained for that purpose that we may
designate from time to time, except that, at our option, interest payments, if
any, on subordinated debt securities in registered form may be made (1) by
checks mailed to the holders of subordinated debt securities entitled to receive
these payments at their registered addresses or (2) by wire transfer to an
account maintained by the person entitled to receive these payments as specified
in the register maintained to record the holders of the subordinated debt
securities and transfer of subordinated debt securities. Unless otherwise
indicated in the applicable prospectus supplement, payment of any installment of
interest on subordinated debt securities in registered form will be made to the
person in
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whose name the debt security is registered at the close of business on the
regular record date for payment of interest.
Unless otherwise provided in the applicable prospectus supplement,
subordinated debt securities in registered form will be transferable or
exchangeable at the agency maintained for this purpose that we will designate
from time to time. Subordinated debt securities may be transferred or exchanged
without service charge, other than any tax or other governmental charge imposed
in connection with the transfer or exchange.
GLOBAL SUBORDINATED DEBT SECURITIES
Unless otherwise specified in the applicable prospectus supplement, the
subordinated debt securities of a series may be issued in whole or in part in
the form of one or more global securities that will be deposited with the
depositary or with a nominee for the depositary identified in the applicable
prospectus supplement. In this event, one or more global securities will be
issued in a denomination or aggregate denominations equal to the portion of the
aggregate principal amount of outstanding subordinated debt securities of the
series to be represented by the global security or securities. In the event the
subordinated debt securities are convertible into our preferred or common stock,
we will describe in the applicable prospectus supplement the arrangements we
will make with respect to the issuance of any global securities to assure that
we do not violate the terms of our certificate of incorporation limiting foreign
ownership of our voting stock. For a description of the restrictions on foreign
ownership of our voting stock, please see "Description of Our Capital
Stock -- Provisions of Our Certificate of Incorporation, Bylaws and Applicable
Corporate Laws" below. Except as described in the applicable prospectus
supplement, unless and until it is exchanged in whole or in part for
subordinated debt securities in definitive certificated form, a global security
may not be registered for transfer or exchange except as a whole by:
- the depositary for the global security to a nominee of the depositary;
- a nominee of the depositary to the depositary or another nominee of the
depositary; or
- the depositary or any nominee to a successor depositary for the series or
a nominee of the successor depositary.
The specific terms of the depositary arrangement for any portion of a
series of subordinated debt securities to be represented by a global security
will be described in the applicable prospectus supplement. Unless otherwise
specified in the applicable prospectus supplement, we expect that the following
provisions will apply to the depositary arrangements.
Ownership of beneficial interests in a global security will be limited to
persons that have accounts with the depositary or a nominee of the depositary,
referred to as "participants," or persons that may hold interests through
participants. Upon the issuance of any global security, and the deposit of the
global security with or on behalf of the depositary for the global security, the
depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of the subordinated debt securities represented by
the global security to the accounts of participants. The accounts to be credited
will be designated by the underwriters or agents engaging in the distribution of
the subordinated debt securities or by us, if the subordinated debt securities
are offered and sold directly by us. Ownership of beneficial interests by
participants in the global security will be shown on, and the transfer of these
beneficial interests will be effected only through, records maintained by the
depositary for the global security or by its nominee. Ownership of beneficial
interests in a global security by persons that hold through participants will be
shown on, and the transfer of these beneficial interests within the participants
will be effected only through, records maintained by the participants. The laws
of some jurisdictions require that some purchasers of securities take physical
delivery of securities in certificated form. The limitations described above and
these laws may impair the ability to transfer beneficial interests in the global
security.
So long as the depositary for a global security, or its nominee, is the
registered owner of the global security, the depositary or the nominee, as the
case may be, will be considered the sole owner or holder of
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the subordinated debt securities represented by the global security for all
purposes under the applicable indenture. Unless otherwise specified in the
applicable prospectus supplement and except as specified below, owners of
beneficial interests in the global security will not be entitled to have
subordinated debt securities of the series represented by the global security
registered in their names, will not receive or be entitled to receive physical
delivery of subordinated debt securities of that series in certificated form and
will not be considered the holders of the subordinated debt securities for any
purposes under the relevant indenture. Accordingly, each person owning a
beneficial interest in a global security must rely on the procedures of the
depositary and, if the person is not a participant, on the procedures of the
participant through which the person owns its interest, to exercise any rights
of a holder under the relevant indenture. The depositary may grant proxies and
otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a holder
is entitled to give or take under the relevant indenture. We understand that,
under existing industry practices, if we request any action of holders or if any
owner of a beneficial interest in a global security desires to give any notice
or take any action which a holder is entitled to give or take under the relevant
indenture, the depositary would authorize the participants to give the notice or
take the action, and the participants would authorize beneficial owners owning
through the participants to give the notice or take the action or would
otherwise act upon the instructions of beneficial owners owning through them.
Unless otherwise specified in the applicable prospectus supplement,
payments of principal, premium, if any, and interest, if any, on subordinated
debt securities represented by a global security registered in the name of a
depositary or its nominee will be made to the depositary or its nominee, as the
case may be, as the registered owner of the global security. We expect that the
depositary for any subordinated debt securities represented by a global
security, upon receipt of any payment of principal, premium or interest, will
immediately credit participants' accounts with payments in amounts proportionate
to their respective beneficial interests in the principal amount of the global
security as shown on the records of the depositary. We also expect that payments
by participants to owners of beneficial interests in a global security held
through the participants will be governed by standing instructions and customary
practices, as is now the case with the securities held for the accounts of
customers registered in "street names," and will be the responsibility of the
participants. Neither we nor the trustees nor any agent of ours or the trustees
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial interests of a global security, or
for maintaining, supervising or reviewing any records relating to the beneficial
interests.
Unless otherwise specified in the applicable prospectus supplement, if the
depositary for any subordinated debt securities represented by a global security
is at any time unwilling or unable to continue as depositary or ceases to be a
clearing agency registered under the Securities Exchange Act of 1934 and a duly
registered successor depositary is not appointed by us within 90 days, we will
issue these subordinated debt securities in definitive certificated form in
exchange for the global security. In addition, we may at any time and in our
sole discretion determine not to have any of the subordinated debt securities of
a series represented by one or more global securities and, in that event, will
issue subordinated debt securities of the series in definitive certificated form
in exchange for all of the global security or securities representing the
subordinated debt securities.
CONSOLIDATION, MERGER OR SALE BY AMERICAN CLASSIC VOYAGES
Unless otherwise specified in the applicable prospectus supplement, we will
not consolidate with or merge into any other corporation or sell our assets
substantially as an entirety, unless:
- the corporation formed by the consolidation or into which we are merged
or the corporation which acquires our assets is organized in the United
States;
- in the case of a merger, we are the surviving entity, or the corporation
formed by the consolidation or into which we are merged or which acquires
our assets substantially as an entirety expressly assumes all of our
obligations under each indenture; and
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- immediately after giving effect to the transaction, no default or event
of default under the applicable indenture has happened and is continuing.
Upon the consolidation, merger or sale, the successor corporation formed by
the consolidation, or into which we are merged or to which the sale is made,
will succeed to, and be substituted for us under each indenture.
EVENTS OF DEFAULT, NOTICE AND RIGHTS ON DEFAULT
Each indenture provides that, if an event of default occurs relating to the
subordinated debt securities of any series and is continuing, the trustee for
the series or the holders of 25% in aggregate principal amount of all of the
outstanding subordinated debt securities of that series, by written notice to us
and to the trustee for the series, if notice is given by the holders of
subordinated debt securities, may declare the principal of or, if the
subordinated debt securities of that series provide for an amount that is more
or less than the principal amount of the subordinated debt securities to be due
and payable upon a declaration of maturity of the subordinated debt securities
upon an event of default, that portion of the principal amount specified in the
prospectus supplement, and accrued interest on all the subordinated debt
securities of that series to be due and payable; provided, that the payment of
principal and interest on the subordinated debt securities will remain
subordinated to the extent provided in the applicable indenture.
Unless otherwise specified in the applicable prospectus supplement, events
of default for subordinated debt securities of any series are defined in each
indenture as being:
- default for 30 days in payment of any interest on any debt security of
that series, whether or not prohibited by the subordination provisions of
the subordinated debt securities, or any additional amount payable on
subordinated debt securities of that series as specified in the
applicable prospectus supplement, when due;
- default in payment of principal, or premium, if any, at maturity, whether
or not prohibited by the subordination provisions of the subordinated
debt securities;
- default for 60 days after written notice to us by the trustee for that
series, or by the holders of 25% in aggregate principal amount of the
subordinated debt securities of that series then outstanding, in the
performance, or breach, of any term, covenant or warranty contained in
the applicable indenture for the subordinated debt securities;
- our bankruptcy, insolvency or reorganization; and
- in the case of subordinated debt securities issued to the AMCV Trust in
connection with an issuance of preferred securities, a voluntary or
involuntary dissolution, winding-up or termination of the AMCV Trust,
except if the subordinated debt securities are distributed to the holders
of the preferred securities in a liquidation of the AMCV Trust or if
there is a redemption or conversion of all of the outstanding preferred
securities and common securities by the AMCV Trust in connection with a
merger or consolidation permitted by the AMCV Trust.
The indentures provide that if an event of default with respect to
subordinated debt securities of a series has occurred and is continuing, either
the trustee for the subordinated debt securities or the holders of not less than
25% in principal amount of the series of subordinated debt securities then
outstanding may declare the principal amount of all subordinated debt securities
of the series to be due and payable immediately upon giving written notice as
provided in the applicable indenture. The indentures provide that the holders of
a majority in principal amount of the subordinated debt securities of the series
may rescind and annul the declaration and its consequences under circumstances
set forth in the indentures.
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If there is an event of default with respect to subordinated debt
securities we issue to the AMCV Trust in connection with an issuance of
preferred securities by the trust, we may not
- declare or pay dividends on, make distributions regarding, or redeem,
purchase, acquire or make a liquidation payment regarding, any of our
capital stock, other than:
(1) purchases of our common stock related to the issuance of our common
stock under any of our benefit plans for our directors, officers or
employees,
(2) as a result of a reclassification of our capital stock or the
exchange or conversion of one series or class of our capital stock
for another series or class of our capital stock,
(3) the purchase of fractional interests in shares of our capital stock
pursuant to the conversion or exchange provisions of the capital
stock or the security being converted or exchanged; and
(4) redemptions or purchases of any rights pursuant to a stockholder
rights plan and the issuance of our capital stock pursuant to these
rights.
- make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by us that rank junior to
or pari passu with the subordinated debt securities, other than any
redemption, liquidation, interest, principal or guarantee payment by us
where the payment is made by way of securities (including our capital
stock) that rank junior to or pari passu with the securities on which
such redemption, interest, principal or guarantee payment is being made;
or
- make any guarantee payments regarding the foregoing, other than payments
under our guarantee of the preferred securities or the common securities.
Events of default for a specified series of subordinated debt securities
may be added to the subordinated indenture and, if so added, will be described
in the applicable prospectus supplement. Each indenture provides that the
trustee will, within 90 days after the occurrence of a default for the
subordinated debt securities of any series, give to the holders of the
subordinated debt securities of that series notice of all defaults known to it
unless the default has been cured or waived; provided that except in the case of
a default in payment on the subordinated debt securities of that series, the
trustee may withhold the notice if and so long as its board of directors or a
committee of its officers determines that withholding the notice is in the
interests of the holders of the subordinated debt securities of that series.
Each indenture provides that the holders of a majority in aggregate principal
amount of the subordinated debt securities of each series affected, with each
series voting as a class, may, subject to limited conditions, direct the time,
method and place of conducting any proceeding for any remedy available to the
trustee for the series, or exercising any trust or power conferred on the
trustee. Each indenture includes a covenant that we will file annually with the
trustee a certificate as to our compliance with all conditions and covenants of
the indenture. The holders of a majority in aggregate principal amount of any
series of subordinated debt securities by notice to the trustee for the series
may waive, on behalf of the holders of all subordinated debt securities of the
series, any past default or event of default for that series and its
consequences, except a default or event of default in the payment of the
principal of, premium, if any, or interest, if any, on any subordinated debt
security, and except for an event of default resulting from the breach of a
covenant or provision of either indenture which, under the applicable indenture,
cannot be amended or modified without the consent of the holders of each
outstanding debt security of the series affected.
OPTION TO DEFER INTEREST PAYMENTS
If provided in the applicable prospectus supplement, we will have the right
at any time and from time to time during the term of subordinated debt
securities issued under the junior convertible subordinated indenture to defer
the payment of interest for the number of consecutive interest payment periods
specified in the applicable prospectus supplement, subject to the terms,
conditions and covenants, if any, specified in
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the prospectus supplement. However, in no event may the deferral period extend
beyond the stated maturity of the subordinated debt securities. Material United
States federal income tax consequences and special considerations applicable to
these subordinated debt securities will be described in the applicable
prospectus supplement. Unless otherwise specified in the applicable prospectus
supplement, at the end of the deferral period, we will pay all interest then
accrued and unpaid together with interest on accrued and unpaid interest
compounded semiannually at the rate specified for the subordinated debt
securities to the extent permitted by applicable law. During the deferral period
with respect to any subordinated debt securities issued under the junior
convertible subordinated indenture, we may not:
- declare or pay dividends on, make distributions regarding, or redeem,
purchase, acquire or make a liquidation payment regarding, any of our
capital stock, other than:
(1) purchases of our common stock related to the issuance of our common
stock under any of our benefit plans for our directors, officers or
employees,
(2) as a result of a reclassification of our capital stock or the
exchange or conversion of one series or class of our capital stock
for another series or class of our capital stock,
(3) the purchase of fractional interests in shares of our capital stock
pursuant to the conversion or exchange provisions of the capital
stock or the security being converted or exchanged; and
(4) redemptions or purchases of any rights pursuant to a stockholder
rights plan and the issuance of our capital stock pursuant to these
rights.
- make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by us that rank junior to
or pari passu with the subordinated debt securities, other than any
redemption, liquidation, interest, principal or guarantee payment by us
where the payment is made by way of securities (including our capital
stock) that rank junior to or pari passu with the securities on which
such redemption, interest, principal or guarantee payment is being made,
and
- make any guarantee payments regarding the foregoing, other than payments
under our guarantee of the preferred securities or the common securities.
Prior to the termination of any deferral period with respect to
subordinated debt securities issued under the junior convertible subordinated
indenture, we may further defer payments of interest by extending the interest
payment period for a limited duration; provided, however, that, the deferral
period, including all previous and further extensions, may not extend beyond the
maturity of the subordinated debt securities.
Upon the termination of any deferral period with respect to subordinated
debt securities issued under the junior convertible subordinated indenture and
the payment of all amounts then due, we may commence a new deferral period,
subject to the terms set forth in this section. No interest during a deferral
period with respect to subordinated debt securities issued under the junior
convertible subordinated indenture, except at the end thereof, will be due and
payable, but we may prepay at any time all or any portion of the interest
accrued during a deferral period. We have no present intention of exercising our
right to defer payments of interest with respect to subordinated debt securities
issued under the junior convertible subordinated indenture by extending the
interest payment period on the subordinated debt securities. If the property
trustee is the sole holder of the subordinated debt securities, we will give the
administrative trustees and the property trustee notice of our selection of a
deferral period one business day before the earlier of (1) the date
distributions on the preferred securities are payable or (2) the date the
administrative trustees are required to give notice to the Nasdaq Stock Market
or other applicable self-regulatory organization, or to holders of the preferred
securities of the record or payment date of the distribution. The administrative
trustees will give notice of our selection of the deferral period to the holders
of the preferred securities. If the property trustee is not the sole holder of
the subordinated debt
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securities, we will give the holders of the subordinated debt securities notice
of our selection of a deferral period ten business days before the earlier of
(1) the interest payment date or (2) the date upon which we are required to give
notice to the Nasdaq Stock Market or other applicable self-regulatory
organization, or to holders of the subordinated debt securities of the record or
payment date of the related interest payment.
Certain Additional Covenants
If we issue subordinated debt securities to the AMCV Trust in connection
with an issuance of preferred securities, we will covenant in the junior
convertible subordinated indenture that as long as the preferred securities are
outstanding we will:
- not convert the subordinated debt securities except upon receipt of
notice of conversion of the underlying preferred securities;
- directly or indirectly own 100% of the common securities of the AMCV
Trust;
- not voluntarily terminate, wind up or liquidate the AMCV Trust, except if
the subordinated debt securities are distributed to the holders of the
preferred securities in a liquidation of the AMCV Trust, of if there is a
redemption of the preferred securities by the AMCV Trust or in connection
with a merger or consolidation permitted by the declaration of trust;
- use our commercially reasonable efforts to make sure that the AMCV Trust
- remains a grantor business trust; and
- remains classified as an entity not taxable as a corporation or
partnership in the U.S.; and
- honor all of our obligations relating to the conversion or exchange of
the preferred securities and common securities into or for our common
stock or subordinated debt securities
Modification of the Indentures
Unless otherwise specified in the applicable prospectus supplement, each
indenture contains provisions permitting us and the trustee to enter into one or
more supplemental indentures without the consent of the holders of any of the
subordinated debt securities in order to:
- evidence the succession of another corporation to American Classic
Voyages and the assumption of our covenants by the successor;
- add to our covenants or surrender any of our rights or powers;
- add additional events of default for any series of subordinated debt
securities;
- change or eliminate any provision affecting only subordinated debt
securities not yet issued;
- provide for security for the subordinated debt securities;
- to establish the form or terms of subordinated debt securities;
- evidence and provide for successor trustees;
- cure any ambiguity, correct or supplement any inconsistent provisions,
comply with any applicable provisions of law, or to make any other
provisions concerning matters or questions arising under the indenture,
provided that the action does not adversely affect the interests of
holders of subordinated debt securities of any series in any material
respect; or
- modify, eliminate or add to the provisions of an indenture as required to
qualify the indenture under the Trust Indenture Act of 1939, or any
similar federal statute.
Unless otherwise specified in the applicable prospectus supplement, each
indenture also contains provisions permitting us and the trustee, with the
consent of the holders of a majority in aggregate
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principal amount of the outstanding subordinated debt securities affected by a
supplemental indenture, and with the subordinated debt securities of each series
voting as a class, to execute supplemental indentures adding any provisions to
or changing or eliminating any of the provisions of the indenture or any
supplemental indenture or modifying the rights of the holders of subordinated
debt securities of that series, except that, without the consent of the holder
of each debt security so affected, no supplemental indenture may:
- change the time for payment of principal or premium, if any, or interest
on any debt security;
- reduce the principal of, or any installment of principal of, or premium,
if any, or interest on any debt security, or change the manner in which
they are determined;
- reduce the percentage in principal amount of the outstanding subordinated
debt securities affected by the supplemental indenture the consent of
whose holders is required for amendment of the indenture or for waiver of
compliance with provisions of the indenture or for waiver of defaults;
- change our obligation to maintain an office or agency in the places and
for the purposes specified in the indenture; or
- modify the provisions relating to waiver of defaults or any of the
provisions set forth above.
SUBORDINATION UNDER THE INDENTURES
The subordinated indenture and the junior convertible subordinated
indenture each provide that any subordinated debt securities issued under them
are subordinate and junior in right of payment to all of our debt except for
debt that is by its terms subordinated to or pari passu with the subordinated
debt securities.
If we default in the payment of any principal, or premium, if any, or
interest on any senior indebtedness when the same becomes due and payable,
whether at maturity or at a date fixed for prepayment or declaration or
otherwise, then unless and until full payment on account of the senior
indebtedness has been made or duly provided for, no payment will be made on
account of the subordinated debt securities or interest on the subordinated debt
securities or with respect to any repayment, redemption, retirement, purchase or
other acquisition of subordinated debt securities.
In the event of any distribution of our assets upon any dissolution,
winding up, liquidation or reorganization of American Classic Voyages, then
- holders of senior indebtedness shall receive payment of all principal,
premium, and interest due on senior indebtedness before holders of
subordinated debt securities are entitled to receive any payment of
principal, premium or interest;
- any payment or distribution of our assets to which a holder of
subordinated debt securities or the trustee for the subordinated debt
securities would be entitled shall be paid directly to holders of senior
indebtedness or their representatives or the trustee under the indenture
relating to the senior indebtedness in proportion to the amount of unpaid
principal, premium and interest on the senior indebtedness held by each
holder, and
- if any payment or distribution of our assets is received by the holders
of subordinated debt securities or the trustee for the subordinated debt
securities before all senior indebtedness is paid in full, then the
holders or the trustee shall pay over the payment or distribution to the
holders of senior indebtedness or their representatives or the trustee
under the indenture relating to the senior indebtedness.
Upon payment in full of all senior indebtedness, the holders of
subordinated debt securities will be subrogated to all the rights of any holders
of senior indebtedness to receive any further payments or distributions
applicable to the senior indebtedness until all subordinated debt securities are
paid in full.
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The subordinated indenture provides that the subordination provisions
described in this section, to the extent as they relate to any particular issue
of subordinated debt securities, may be changed before the issuance of the
subordinated debt securities. Any change of this nature would be described in
the applicable prospectus supplement relating to the subordinated debt
securities.
DEFEASANCE AND COVENANT DEFEASANCE OF SUBORDINATED DEBT SECURITIES UNDER
SUBORDINATED INDENTURE
If indicated in the applicable prospectus supplement, we may elect either
to defease and be discharged from any and all obligations with respect to the
subordinated debt securities of or within any series issued under the
subordinated indenture, referred to as "defeasance," or to be released from our
obligations with respect to selected covenants applicable to the subordinated
debt securities of or within any series, referred to as "covenant defeasance."
We may only exercise our defeasance or covenant defeasance options if we deposit
with the appropriate trustee, in trust for that purpose, money and/or U.S.
government obligations which through the payment of principal and interest in
accordance with their terms will provide money in an amount sufficient, to pay
the principal of and any premium or interest on the subordinated debt securities
to maturity or redemption, as the case may be, and any mandatory sinking fund or
similar payments on the subordinated debt securities. As a condition to
defeasance or covenant defeasance, we must deliver to the trustee an opinion of
counsel to the effect that the holders of the subordinated debt securities will
not recognize income, gain or loss for federal income tax purposes as a result
of the defeasance or covenant defeasance and will be subject to federal income
tax on the same amounts and in the same manner and at the same times as would
have been the case if the defeasance or covenant defeasance had not occurred.
The opinion of counsel, in the case of defeasance, must refer to and be based
upon a ruling of the Internal Revenue Service or a change in applicable federal
income tax law occurring after the date of the subordinated indenture. In
addition, in order for a defeasance or covenant defeasance to occur, there must
be no event of default under the subordinated indenture and, if the subordinated
debt securities are redeemable prior to maturity, we must have given notice of
the redemption, unless the redemption will be made pursuant to a mandatory
sinking fund. If indicated in the applicable prospectus supplement, in addition
to obligations of the United States or an agency or instrumentality of the
United States, government obligations may include obligations of the government
or an agency or instrumentality of the government issuing the currency or
currency unit in which subordinated debt securities of the series are payable.
We may exercise our defeasance option for the subordinated debt securities
in spite of our earlier exercise of our covenant defeasance option. If we
exercise our defeasance option, payment of the subordinated debt securities may
not be accelerated because of a default or an event of default. If we exercise
our covenant defeasance option, payment of the subordinated debt securities may
not be accelerated by reason of a default or an event of default under the
covenants to which the covenant defeasance is applicable. However, if the
acceleration occurs by reason of another event of default, the realizable value
at the acceleration date of the money and government obligations in the
defeasance trust could be less than the principal and interest then due on the
subordinated debt securities, because the required deposit in the defeasance
trust is based upon scheduled cash flow rather than market value, which will
vary depending upon interest rates and other factors.
THE TRUSTEE
Unless otherwise specified in the applicable prospectus supplement, The
Bank of New York will be the trustee under the indentures. We may also maintain
banking and other commercial relationships with the trustee and its affiliates
in the ordinary course of business.
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DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock was 45,000,000 shares as of January 13, 2000
consisting of:
- 5,000,000 shares of preferred stock, of which none were outstanding; and
- 40,000,000 shares of common stock, of which 18,614,355 shares were
outstanding.
In general, our authorized preferred stock is afforded preferences
regarding dividends and liquidation rights over our common stock. Our board of
directors is empowered, without approval of our stockholders, to cause the
preferred stock to be issued in one or more series, with the numbers of shares
of each series and the rights, preferences and limitations of each series to be
determined by the board including, without limitation:
- the dividend rights,
- conversion rights,
- redemption rights, and
- liquidation preferences,
if any, of any wholly unissued series of preferred stock, or of the entire class
of preferred stock if none of the shares have been issued. Our board of
directors is also empowered, without approval of our stockholders, to determine
the terms and conditions of the issue of each series of preferred stock. The
following is a summary of the terms of our preferred stock and common stock and
provisions of our articles of incorporation, bylaws and statutes that affect our
preferred stock and common stock and is subject to the actual provisions of the
articles of incorporation, bylaws and these statutes.
PREFERRED STOCK
The applicable prospectus supplement will describe the following terms of
any preferred stock offered pursuant to this prospectus, to the extent
applicable to the preferred stock:
- the specific designation, number of shares, seniority and purchase price;
- any liquidation preference per share;
- any date of maturity;
- any redemption, repayment or sinking fund provisions;
- any dividend rate or rates and the dates on which any dividends will be
payable, or the method by which the rates or dates will be determined;
- any voting rights;
- if other than the currency of the United States, the currency or
currencies, including composite currencies, in which the preferred stock
is denominated and/or in which payments will or may be payable;
- the method by which amounts with respect to the preferred stock may be
calculated and any commodities, currencies or indices, or value, rate or
price, relevant to the calculation;
- whether the preferred stock is convertible or exchangeable and, if so,
the securities or rights into which the preferred stock is convertible or
exchangeable, which may include other preferred stock, subordinated debt
securities, common stock or other securities or rights of American
Classic Voyages, including rights to receive payment in cash or
securities based on the value, rate or price of one or more specified
commodities, currencies or indices, or a combination any of these, and
the terms and conditions upon which the conversions or exchanges will be
effected, including the initial
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conversion or exchange prices or rates, the conversion or exchange period
and any other related provisions;
- the place or places where dividends and other payments on the preferred
stock will be payable; and
- any additional voting, dividend, liquidation, redemption and other
rights, preferences, privileges, limitations and restrictions.
All shares of preferred stock offered by this prospectus, or issuable upon
conversion, exchange or exercise of securities, will, when issued, be fully paid
and non-assessable.
COMMON STOCK
The prospectus supplement relating to an offering of common stock will
describe relevant terms, including the number of shares offered, the initial
offering price, market price and dividend information.
Dividends. Holders of common stock are entitled to receive dividends and
other distributions in cash, stock or property, when, as and if declared by the
board of directors out of our assets or funds legally available for payment of
dividends or other distributions and will share equally on a per share basis in
all dividends and other distributions, subject to the rights of holders of
preferred stock. We do not currently anticipate paying any dividends in the
foreseeable future.
Voting Rights. At every meeting of stockholders, every holder of common
stock is entitled to one vote per share. Subject to any voting rights which may
be granted to holders of preferred stock, any action submitted to stockholders
is approved if the number of votes cast in favor of the action exceeds the
number of votes against, except where other provision is made by law and subject
to applicable quorum requirements.
Liquidation Rights. If there is any liquidation, dissolution or winding-up
of American Classic Voyages, whether voluntary or involuntary, the holders of
common stock are entitled to share equally in the assets available for
distribution after payment of all liabilities and provision for the liquidation
preference of any shares of preferred stock then outstanding.
The holders of common stock have no preemptive rights, cumulative voting
rights, subscription rights, or conversion rights and the common stock may not
be redeemed. The transfer agent and registrar for the common stock is EquiServe
LP. The common stock is traded on the Nasdaq National Market under the symbol
"AMCV." All shares of common stock offered by this prospectus, or issuable upon
conversion, exchange or exercise of securities, will, when issued, be fully paid
and non-assessable.
PROVISIONS OF OUR CERTIFICATE OF INCORPORATION, BY-LAWS AND APPLICABLE CORPORATE
LAWS
Some provisions of our certificate of incorporation and bylaws may make it
more difficult to sell your shares of common or preferred stock. The most
important of those provisions are described below.
In order to offer itineraries featuring only U.S. ports, U.S. maritime laws
require us to use only "U.S.-flagged" vessels. A U.S.-flagged vessel is a vessel
that is U.S. built, owned and crewed. To maintain U.S-flagged status, at least
75% of our stockholders must be U.S. citizens. In order to assure that we
maintain that level of U.S. ownership, our certificate of incorporation contains
limitations on the transferability of our stock to non-U.S. citizens. The
certificate of incorporation limits non-U.S. ownership of our stock to 25% of
our total voting stock and provides for the transfer of stock purchased in
violation of that rule back to the transferor. These restrictions may have the
effect of decreasing the liquidity of our common stock, thereby making it more
difficult for investors to dispose of their shares in an orderly manner.
In addition, in our certificate of incorporation we elect not to be
governed by Section 203 of the Delaware General Corporation Law. Section 203 of
the Delaware General Corporation Law generally restricts some types of
transactions and business combinations between a company and interested
stockholders, unless the board of directors approves the transaction before it
occurs, or 66 2/3% of the
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uninterested stockholders ratify the transaction after the board of directors
has approved it or if the interested stockholder owned at least 85% of the
voting stock of the Company at the time of the transaction. The statute
expressly permits companies to elect not to be governed by Section 203. However,
we do have a restriction on interested stockholder transactions in our bylaws.
Article III, Section 15 of our bylaws requires that a majority of the
disinterested members of our board of directors approve any business transaction
between us and a director or a person affiliated with or under common control of
a director. The only interested person business transactions that do not require
such board approval are the sale, lease or exchange of property or the provision
of services pursuant to an Administrative Services Agreement between us and
Equity Group Investments, Inc., an entity that, with its affiliates, is our
controlling stockholder. Our bylaws define a "disinterested director" as a
person who is not
(1) an employee, director, officer, trustee, general partner, 5% or
more stockholder or fiduciary of a person (other than us) who is
affiliated or under common control with an interested person; or
(2) any employee, director, officer, trustee, partner or fiduciary of
any of the above.
Our bylaws may be amended by majority vote of the board of directors or a
majority vote of the stockholders. The board of directors may not repeal or
amend any provision which has been approved by a majority of the stockholders.
As discussed above, our preferred stock may be issued from time to time in
one or more series with the rights, preferences, limitations and restrictions
that may be determined by the board of directors. The issuance of preferred
stock could be used, under some circumstances, as a method of delaying or
preventing a change of control of American Classic Voyages and could have a
detrimental effect on the rights of holders of common stock, including loss of
voting control.
DESCRIPTION OF PREFERRED SECURITIES OF THE AMCV TRUST
The AMCV Trust may issue, from time to time, only one series of preferred
securities having terms described in the prospectus supplement. The declaration
of trust of the AMCV Trust authorizes the administrative trustees of the AMCV
Trust to issue on behalf of the AMCV Trust one series of preferred securities.
The declaration of trust will be qualified as an indenture under the Trust
Indenture Act. The property trustee, an independent trustee, will act as
indenture trustee for the preferred securities for purposes of compliance with
the provisions of the Trust Indenture Act. The preferred securities will have
the terms, including distributions, redemption, voting, liquidation rights,
maturity date or dates and the other preferred, deferred or other special rights
or restrictions as are established by the administrative trustees in accordance
with the declaration of trust or as are set forth in the declaration of trust or
made part of the declaration of trust by the Trust Indenture Act. The prospectus
supplement relating to the preferred securities of the AMCV Trust will set forth
the specific terms of the preferred securities, including, to the extent
applicable:
- the distinctive designation of the preferred securities;
- the number of preferred securities issued by the AMCV Trust;
- the annual distribution rate, or method of determining the rate, for
preferred securities issued by the AMCV Trust and the date or dates upon
which distributions will be payable; provided, however, that
distributions on the preferred securities will, subject to any deferral
provisions and any provisions for payment of defaulted distributions, be
payable on a quarterly basis to holders of the preferred securities as of
a record date in each quarter during which the preferred securities are
outstanding and any provisions relating to the resetting or adjustment of
the distribution rate;
- any right of the AMCV Trust to defer quarterly distributions on the
preferred securities as a result of an interest deferral right exercised
by us on the subordinated debt securities held by the AMCV Trust;
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<PAGE> 22
- whether distributions on preferred securities will be cumulative, and, in
the case of preferred securities having cumulative distribution rights,
the date or dates or method of determining the date or dates from which
distributions on preferred securities will be cumulative;
- the amount or amounts which will be paid out of the assets of the AMCV
Trust to the holders of preferred securities upon voluntary or
involuntary dissolution, winding-up or termination of the AMCV Trust;
- the obligation or option, if any, of the AMCV Trust to purchase or redeem
preferred securities and the price or prices at which, the period or
periods within which and the terms and conditions upon which preferred
securities will be purchased or redeemed, in whole or in part, under this
obligation or option with the redemption price or formula for determining
the redemption price to be specified in the applicable prospectus
supplement;
- the voting rights, if any, of preferred securities in addition to those
required by law, including the number of votes per preferred security and
any requirement for the approval by the holders of preferred securities
as a condition to specified action or amendments to the declaration of
trust;
- whether the preferred securities are convertible or exchangeable into our
common stock or other securities, including the initial conversion or
exchange price or rate, the conversion or exchange period and any other
related provisions;
- the terms and conditions, if any, upon which subordinated debt securities
held by the AMCV Trust may be distributed to holders of preferred
securities; and
- any other relevant terms, rights, preferences, privileges, limitations or
restrictions of preferred securities consistent with the declaration of
trust or applicable law.
All preferred securities offered by the prospectus will be guaranteed by us to
the extent set forth below under "Description of Guarantees." The guarantee
issued by us to the AMCV Trust, when taken together with our back-up
undertakings, consisting of our obligations under the declaration of trust,
including the obligation to pay expenses of the AMCV Trust, the applicable
indenture and any applicable supplemental indentures and the subordinated debt
securities issued to the AMCV Trust will provide a full and unconditional
guarantee by us of amounts due on the preferred securities issued by the AMCV
Trust. The payment terms of the preferred securities will be the same as the
subordinated debt securities issued to the AMCV Trust by us.
The declaration of trust authorizes the administrative trustee to issue on
behalf of the trust one series of common securities having terms, including
distributions, redemption, voting and liquidation rights, and restrictions that
are established by the administrative trustee in accordance with the declaration
of trust or that are otherwise set forth in the declaration of trust. The terms
of the common securities issued by the AMCV Trust will be substantially
identical to the terms of the preferred securities issued by the AMCV Trust, and
the common securities will rank equally, and payments will be made on the common
securities on a proportionate basis, with the preferred securities except that,
if an event of default under the declaration of trust has occurred and is
continuing, the rights of the holders of the common securities to payment of
distributions and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of the preferred securities. The
common securities will also carry the right to vote and to appoint, remove or
replace any of the trustees of the AMCV Trust. We will own directly or
indirectly all of the common securities of the AMCV Trust.
We anticipate that the financial statements of the AMCV Trust issuing
preferred securities will be reflected in our consolidated financial statements
with the preferred securities shown as company-obligated mandatorily-redeemable
preferred securities of a subsidiary trust under minority interest in
consolidated subsidiaries. In this case, we anticipate that we will include in a
footnote to our audited financial statements, statements that the AMCV Trust is
wholly-owned by us and that the sole asset of the AMCV Trust is the subordinated
debt securities, indicating the principal amount, interest rate and maturity
date of the subordinated debt securities.
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<PAGE> 23
DESCRIPTION OF GUARANTEES
Set forth below is a summary of information concerning the guarantees that
will be executed and delivered by us for the benefit of the holders, from time
to time, of preferred securities. Each guarantee will be qualified as an
indenture under the Trust Indenture Act. Unless otherwise specified in the
applicable prospectus supplement, The Bank of New York will act as the preferred
securities guarantee trustee. The terms of each guarantee will be set forth in
the guarantee and will include the terms made part of the guarantee by the Trust
Indenture Act. The following is a summary of the material terms of the
guarantees. You should refer to the provisions of the form of guarantee, a copy
of which has been filed as an exhibit to the registration statement of which
this prospectus is a part, and the Trust Indenture Act. Each guarantee will be
held by the preferred securities guarantee trustee for the benefit of the
holders of the preferred securities of the AMCV Trust.
Unless otherwise specified in the applicable prospectus supplement, we will
agree, to the extent set forth in each guarantee, to pay in full to the holders
of the preferred securities, the payments and distributions to be made with
respect to the preferred securities, except to the extent paid by the AMCV
Trust, as and when due, regardless of any defense, right of set-off or
counterclaim which the AMCV Trust may have or assert. The following payments or
distributions with respect to the preferred securities, to the extent not paid
by the AMCV Trust, will be subject to the guarantee, without duplication:
- any accrued and unpaid distributions that are required to be paid on the
preferred securities, to the extent the AMCV Trust has funds available to
make the payment;
- the redemption price, including all accumulated and unpaid distributions
to the date of redemption, to the extent the AMCV Trust has funds
available to make the payment, for any preferred securities called for
redemption by the AMCV Trust; and
- upon a voluntary or involuntary dissolution, winding-up or termination of
the AMCV Trust, other than in connection with the distribution of
subordinated debt securities to the holders of preferred securities or
the redemption of all of the preferred securities upon maturity or
redemption of the subordinated debt securities, the lesser of (1) the sum
of the liquidation amount and all accrued and unpaid distributions on the
preferred securities to the date of payment, to the extent the AMCV Trust
has funds available to make the payment and (2) the amount of assets of
the AMCV Trust, after satisfaction of all liabilities, remaining for
distribution to holders of the preferred securities in liquidation of the
AMCV Trust.
Our obligation to make a guarantee payment may be satisfied by our direct
payment of the required amounts to the holders of preferred securities or by
causing the AMCV Trust to pay the amounts to the holders.
Each guarantee will not apply to any payment of distributions except to the
extent the AMCV Trust has funds available to make the payment. If we do not make
interest or principal payments on the subordinated debt securities purchased by
the AMCV Trust, the AMCV Trust will not pay distributions on the preferred
securities issued by the AMCV Trust and will not have funds available to make
the payment.
We have also agreed to guarantee the obligations of the AMCV Trust with
respect to the common securities issued by the AMCV Trust to the same extent as
the guarantee with respect to the preferred securities, except that, if an event
of default under the subordinated indenture has occurred and is continuing,
holders of preferred securities guaranteed by us will have priority over holders
of the common securities guaranteed by us with respect to distributions and
payments on liquidation, redemption or otherwise.
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COVENANTS OF AMERICAN CLASSIC VOYAGES
Unless otherwise specified in the applicable prospectus supplement, in each
guarantee of the payment obligations of the AMCV Trust with respect to preferred
securities, we will covenant that, so long as any preferred securities issued by
the AMCV Trust remain outstanding, if for any distribution period:
- full distributions on a cumulative basis on any preferred securities have
not been paid or declared and set apart for payment for any distribution
period,
- there has occurred any event of default under the guarantee or under the
declaration of trust of the AMCV Trust,
- we are in default of our obligations under the preferred securities
guarantee or the common securities guarantee, or
- we have given notice of our selection of an extension period for payment
of interest on the subordinated debt securities and not rescinded such
notice or extension,
then we will not:
- declare or pay any dividend on, make any other distributions on, or
redeem, purchase, acquire or make a liquidation payment regarding, any of
our capital stock, except:
(1) purchases of our common stock related to the issuance of our common
stock under any of our benefit plans for our directors, officers or
employees,
(2) as a result of a reclassification of our capital stock or the
exchange or conversion of one series or class of our capital stock
for another series or class of our capital stock,
(3) the purchase of fractional interests in shares of our capital stock
pursuant to the conversion or exchange provisions of the capital
stock or the security being converted or exchanged; and
(4) redemptions or purchases of any rights pursuant to a shareholder
rights plan and the issuance of our capital stock pursuant to these
rights.
- make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by us which rank junior
to or pari passu with the subordinated debt securities issued to the AMCV
Trust, other than any redemption, liquidation, interest, principal or
guarantee payment by us where the payment is made by way of securities
(including our capital stock) that rank junior to or pari passu with the
securities on which such redemption, interest, principal or guarantee
payment is being made; and
- make any guarantee payments regarding the foregoing, other than under a
guarantee of the payment obligations of the AMCV Trust with respect to
preferred securities or the common securities.
MODIFICATION OF THE GUARANTEES; ASSIGNMENT
Except for any changes that do not adversely affect the rights of holders
of preferred securities, in which case no consent of the holders will be
required, each guarantee of the payment obligations of the AMCV Trust with
respect to preferred securities may be amended only with the prior approval of
the holders of at least a majority in liquidation amount of the outstanding
preferred securities of the AMCV Trust. The manner of obtaining any approval of
holders of the preferred securities will be described in an accompanying
prospectus supplement. All guarantees and agreements contained in a guarantee of
the obligations of the AMCV Trust with respect to preferred securities will bind
the successors, assigns, receivers, trustees and representatives of American
Classic Voyages and will inure to the benefit of the holders of the preferred
securities of the AMCV Trust then outstanding.
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EVENTS OF DEFAULT
An event of default under a preferred securities guarantee will occur upon
our failure to perform any of our payment or other obligations under the
guarantee. The holders of a majority in liquidation amount of the preferred
securities to which the preferred securities guarantee relates will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the preferred securities guarantee trustee with respect to
the guarantee or to direct the exercise of any trust or power conferred upon the
preferred securities guarantee trustee under the guarantee.
If the preferred securities guarantee trustee fails to enforce the
guarantee, any record holder of preferred securities to which the guarantee
relates may institute a legal proceeding directly against us to enforce the
preferred securities guarantee trustee's rights under the guarantee without
first instituting a legal proceeding against the AMCV Trust, the preferred
securities guarantee trustee or any other person or entity. If we have failed to
make a guarantee payment under a guarantee, a record holder of preferred
securities to which the guarantee relates may directly institute a proceeding
against us for enforcement of the guarantee for the payment to the record holder
of the preferred securities to which the guarantee relates of the principal of
or interest on the applicable subordinated debt securities on or after the
respective due dates specified in the subordinated debt securities, and the
amount of the payment will be based on the holder's proportionate share of the
amount due and owing on all of the preferred securities to which the guarantee
relates. We have waived any right or remedy to require that any action be
brought first against the AMCV Trust or any other person or entity before
proceeding directly against us. The record holder in the case of the issuance of
one or more global preferred securities certificates will be The Depository
Trust Company, or its nominee, acting at the direction of the beneficial owners
of the preferred securities.
We will be required to provide annually to the preferred securities
guarantee trustee a statement as to the performance of our obligations under
each outstanding preferred securities guarantee and as to any default in our
performance.
INFORMATION CONCERNING THE PREFERRED SECURITIES GUARANTEE TRUSTEE
The preferred securities guarantee trustee, before the occurrence of a
default under a preferred securities guarantee, undertakes to perform only the
duties that are specifically set forth in the guarantee and, after a default
under a guarantee, will exercise the same degree of care as a prudent individual
would exercise in the conduct of his or her own affairs. Subject to this
provision, the preferred securities guarantee trustee is under no obligation to
exercise any of the powers vested in it by a preferred securities guarantee at
the request of any holder of preferred securities to which the guarantee relates
unless it is offered reasonable indemnity against the costs, expenses and
liabilities that might be incurred by the preferred securities guarantee trustee
in exercising any of its powers.
TERMINATION
Each preferred securities guarantee will terminate as to the preferred
securities issued by the AMCV Trust upon
- full payment of the redemption price of all preferred securities of the
AMCV Trust,
- distribution of subordinated debt securities held by the AMCV Trust to
the holders of all of the preferred securities of the AMCV Trust,
- full payment of the amounts payable in accordance with the declaration of
trust of the AMCV Trust upon liquidation of the AMCV Trust, or
- upon conversion of all preferred securities under the declaration of
trust.
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Each preferred securities guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of preferred
securities issued by the AMCV Trust must restore payment of any sums paid under
the preferred securities or the preferred securities guarantee.
STATUS OF THE GUARANTEES
The preferred securities guarantees will constitute our unsecured
obligations and will rank:
- subordinate and junior in right of payment to all of our other
liabilities, other than our obligations under our guarantee of the common
securities, which are subordinate and junior to the guarantee of the
preferred securities to the extent provided in the preferred securities
guarantee;
- equivalently with the most senior preferred or preference stock now or
hereafter issued by us and with any guarantee now or hereafter entered
into by us in respect of any preferred or preference stock of any of our
affiliates; and
- senior to our common stock.
The terms of the preferred securities provide that each holder of preferred
securities by acceptance of the preferred securities agrees to the subordination
provisions and other terms of our guarantee relating to the preferred
securities.
Each preferred securities guarantee will constitute a guarantee of payment
and not of collection. This means that the guaranteed party may institute a
legal proceeding directly against us to enforce its rights under the guarantee
without instituting a legal proceeding against any other person or entity.
PLAN OF DISTRIBUTION
We and/or the AMCV Trust may sell any of the securities being offered
hereby in any one or more of the following ways from time to time:
- through agents;
- to or through underwriters;
- through dealers; or
- directly to purchasers.
The prospectus supplement for the securities will set forth the terms of
the offering of the securities, including the name or names of any underwriters,
dealers or agents; the purchase price of the securities and the proceeds to us
and/or the AMCV Trust from the sale; any underwriting discounts and commissions
or agency fees and other items constituting underwriters' or agents'
compensation; any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers and any securities exchange on which the
securities may be listed. Any initial public offering price, discounts or
concessions allowed or reallowed or paid to dealers may be changed from time to
time.
The distribution of the securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, at market
prices prevailing at the time of sale, at prices related to the prevailing
market prices or at negotiated prices.
Offers to purchase securities may be solicited by agents designated by us
from time to time. Any agent involved in the offer or sale of the securities in
respect of which this prospectus is delivered will be named, and any commissions
payable by us and/or the AMCV Trust to the agent will be set forth, in the
applicable prospectus supplement. Unless otherwise indicated in the prospectus
supplement, any agent will be acting on a reasonable best efforts basis for the
period of its appointment. Any agent may be deemed to be an underwriter, as that
term is defined in the Securities Act of 1933, of the securities so offered and
sold.
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If securities are sold by means of an underwritten offering, we and/or the
AMCV Trust will execute an underwriting agreement with an underwriter or
underwriters at the time an agreement for the sale is reached, and the names of
the specific managing underwriter or underwriters, as well as any other
underwriters, and the terms of the transaction, including commissions, discounts
and any other compensation of the underwriters and dealers, if any, will be set
forth in the prospectus supplement which will be used by the underwriters to
make resales of the securities in respect of which this prospectus is delivered
to the public. We and/or the AMCV Trust may also agree with an underwriter or
underwriters to enter into an underwriting agreement or conduct an underwritten
offering, in each case, at some future date. If underwriters are utilized in the
sale of the securities with respect to which this prospectus is delivered, the
securities will be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including negotiated
transactions, at fixed public offering prices or at varying prices determined by
the underwriter at the time of sale. Securities may be offered to the public
either through underwriting syndicates represented by managing underwriters or
directly by the managing underwriters. If any underwriter or underwriters are
utilized in the sale of the securities, unless otherwise indicated in the
prospectus supplement, the underwriting agreement will provide that the
obligations of the underwriters are subject to specific conditions and that the
underwriters for a sale of securities will be obligated to purchase all of the
securities of a series if any are purchased.
If a dealer is utilized in the sales of the securities with respect to
which this prospectus is delivered, we and/or the AMCV Trust will sell the
securities to the dealer as principal. The dealer may then resell the securities
to the public at varying prices to be determined by the dealer at the time of
resale. Any dealer may be deemed to be an underwriter, as the term is defined in
the Securities Act of 1933, of the securities so offered and sold. The name of
the dealer and the terms of the transaction will be set forth in the prospectus
supplement relating to the sale of securities.
Offers to purchase securities may be solicited directly by us and/or the
AMCV Trust and the sale of securities may be made by us and/or the applicable
AMCV Trust directly to institutional investors or others, who may be deemed to
be underwriters within the meaning of the Securities Act of 1933 for any resale
of securities. The terms of any sales will be described in the prospectus
supplement relating to the sale of securities.
Agents, underwriters and dealers may be entitled under relevant agreements
to indemnification or contribution by us and/or the AMCV Trust against specified
liabilities, including liabilities under the Securities Act of 1933.
Agents, underwriters and dealers may be customers of, engage in
transactions with, or perform services for, us and our subsidiaries in the
ordinary course of business.
If so indicated in the applicable prospectus supplement, we and/or the AMCV
Trust may authorize agents, underwriters or dealers to solicit offers by
specified types of institutions to purchase securities from us and/or the AMCV
Trust at the public offering prices set forth in the applicable prospectus
supplement under delayed delivery contracts providing for payment and delivery
on a specified date or dates in the future. A commission indicated in the
applicable prospectus supplement will be paid to underwriters, dealers and
agents soliciting purchases of securities under the delayed delivery contracts
accepted by us and/or the AMCV Trust.
No dealer, salesman or other individual has been authorized to give any
information or to make any representations not contained in this prospectus, any
accompanying prospectus supplement or the documents incorporated or deemed
incorporated into this prospectus by reference. If given or made, the
information or representations must not be relied upon as having been authorized
by us or any underwriter, dealer or agent. This prospectus does not constitute
an offer to sell, or a solicitation of an offer to buy, any securities other
than the registered securities to which it relates, or an offer to sell or a
solicitation of an offer to buy those securities to which it relates, in any
jurisdiction where, or to any person to whom, it is unlawful to make the offer
or solicitation. Neither the delivery of this prospectus or any prospectus
supplement nor any sale made under this prospectus should, under any
circumstances, create any
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implication that there has not been any change in the facts set forth in this
prospectus or in our affairs since the date of this prospectus.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
All statements, trend analyses and other information contained in this
prospectus, any prospectus supplement or any document incorporated into this
prospectus by reference relative to our growth plans, markets for our products
and trends in our operations or financial results, as well as other statements
including words like "anticipate," "believe," "plan," "estimate," "expect,"
"intend," "should," "could," "goal," "target," and other similar expressions,
constitute forward-looking statements under the Private Securities Litigation
Reform Act of 1995. These forward-looking statements are subject to known and
unknown risks, uncertainties and other factors which may cause actual results to
be materially different from those contemplated by the forward-looking
statements. These factors include, among other things:
- general economic and business conditions which may affect, among other
things, our customers' leisure spending levels and affect our passenger
yields and occupancy rates, which could adversely affect our financial
performance
- our ability to build new vessels as scheduled and within budget and to
deploy the new vessels on schedule, which may affect our growth plans and
future performance
- our ability to obtain additional capital to build, purchase and renovate
vessels, which may affect our expansion plans and future operating
results
- increases in our indebtedness which may affect our financial performance
and cash flow
- our ability to manage our financial and managerial resources during our
expansion, which could affect our growth and financial performance
- demand for our new cruise products, which could affect our business or
revenue growth
- changes in the regulations and statutes regulating the ability of
foreign-flagged vessels to operate between U.S. ports, which could affect
our revenue growth or business
- increasing competition in the Hawaii cruise market and competition from
other vacation alternatives, which could affect our financial performance
- timely maintenance of our vessels within allocated budgets as well as
river, weather and ocean conditions, which could affect our revenues
- actions by our controlling stockholder, such as sales of its shares of
our stock, which may affect our business, stock price or our ability to
raise capital and
- the risk factors or uncertainties listed from time to time in any
prospectus supplement or any document incorporated into this prospectus
by reference
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, the
validity of the shares of the securities, other than the preferred securities,
offered hereby will be passed upon for us by Seyfarth, Shaw, Fairweather &
Geraldson, Chicago, Illinois. Matters of Delaware law relating to the validity
of the preferred securities will be passed upon for the AMCV Trust by Richards,
Layton & Finger, P.A., Wilmington, Delaware, special Delaware counsel to the
AMCV Trust and American Classic Voyages.
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EXPERTS
The historical consolidated financial statements of American Classic
Voyages Co. as of December 31, 1998 and 1997, and for each of the years in the
three-year period ended December 31, 1998, have been incorporated by reference
herein from our Annual Report on Form 10-K for the year ended December 31, 1998
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.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following are the estimated expenses in connection with the
distribution of the securities being registered:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $66,000
National Association of Securities Dealers, Inc. filing
fee....................................................... $ *
Nasdaq National Market additional listing fee............... $ *
Printing and related expenses............................... $ *
Blue sky fees and expenses.................................. $ *
Legal fees and expenses..................................... $ *
Accounting fees and expenses................................ $ *
Miscellaneous............................................... $ *
-------
Total............................................. $ *
=======
</TABLE>
- ---------------
* to be filed by amendment
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Seventh of the Registrant's Second Amended and Restated Certificate
of Incorporation ("Article Seventh") is consistent with Section 102(b)(7) of the
Delaware General Corporation Law, which generally permits a company to include a
provision limiting the personal liability of a director in the company's
certificate of incorporation. With limitations, Article Seventh eliminates the
personal liability of the Registrant's directors to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director.
However, Article Seventh does not eliminate director liability: (1) for breaches
of the duty of loyalty to the Registrant and its stockholders; (2) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (3) for transactions from which a director derives improper
personal benefit; or (4) under Section 174 of the Delaware General Corporation
Law ("Section 174"). Section 174 makes directors personally liable for unlawful
dividends and stock repurchases or redemptions and expressly sets forth a
negligence standard with respect to such liability. While Article Seventh
protects the directors from awards for monetary damages for breaches of their
duty of care, it does not eliminate their duty of care. The limitations in
Article Seventh have no effect on claims arising under the federal securities
laws.
Under Section 145 of the Delaware General Corporation Law, directors and
officers, as well as other employees and individuals, may be indemnified against
expenses (including attorneys' fees), judgments, fines, amounts paid in
settlement in connection with specified actions, suits or proceedings, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation, a "derivative action") if they acted in good faith
and in a manner they reasonably believed to be in, or not opposed to, the best
interests of the corporation, and, with respect to criminal actions or
proceedings, had no reasonable cause to believe their conduct was unlawful. A
similar standard of care is applicable in the case of derivative actions, except
that indemnification only extends to expenses (including attorneys' fees)
incurred in connection with the defense or settlement of such an action, and the
Delaware General Corporation Law requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation.
The directors and officers of the Company are covered by directors' and
officers' insurance in an aggregate maximum of approximately $10 million
indemnifying them against certain liabilities that they might incur in such
capacities, including certain liabilities arising under the Securities Act. The
premium for this insurance is paid by the Company.
II-1
<PAGE> 31
The Declaration of Trust for the AMCV Capital Trust I (the "Trust") will
provide that no property or Delaware trustee or any of their affiliates, or any
officer, director, shareholder, member, partner, employee, representative,
custodian, nominee or agent of such property or Delaware trustee (each a
"Fiduciary Indemnified Person"), and no administrative trustee, affiliate of any
administrative trustee, or any officer, director, stockholder, member, partner,
employee, representative or agent of any administrative trustee or any affiliate
thereof, or any employee or agent of the Trust or any of their affiliates (each
a "Company Indemnified Person") shall be liable, responsible or accountable in
damages or otherwise to any of the Trust or any officer, director, stockholder,
partner, member, representative, employee or agent of the Trust or its
affiliates or to any holder of preferred securities for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Fiduciary Indemnified Person or Company Indemnified Person in good faith on
behalf of the Trust and in a manner such Fiduciary Indemnified Person or Company
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Fiduciary Indemnified Person or Company Indemnified Person by
the Declaration of Trust or by law, except that a Fiduciary Indemnified Person
shall be liable for any such loss, damage or claim incurred by reason of such
Fiduciary Indemnified Person's gross negligence or bad faith with respect to
such acts or omissions and a Company Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Company Indemnified
Person's lack of good faith or the lack of reasonable belief that his or her act
or omission was in, or not opposed to, the best interests of the Trust.
The Declaration of Trust for the Trust also provides that to the full
extent permitted by law, the Company shall indemnify any Company Indemnified
Person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe such person's conduct
was unlawful. The Declaration of Trust also provides that to the full extent
permitted by law, the Company shall indemnify any Company Indemnified Person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of any such trust to procure a
judgment in its favor by reason of the fact that such person is or was a Company
Indemnified Person against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
trust and except that no such indemnification shall be made in respect of any
claim, issue or matter as to which such Company Indemnified Person shall have
been adjudged to be liable to the trust unless and only to the extent that the
Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such Court
of Chancery or such other court shall deem proper. The Declaration of Trust for
the Trust further provides that expenses (including attorneys' fees) incurred by
a Company Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in the immediately
preceding two sentences shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such Company Indemnified Person to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by
the Company as authorized in any such Declaration.
The Declaration of Trust for the Trust also provides that the Company shall
indemnify each Fiduciary Indemnified Person against any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust under the
Trust, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against
II-2
<PAGE> 32
or investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties thereunder.
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
-------------- ----------------------
<C> <S>
1.1 -- Form of Purchase Agreement -- Debt*
1.2 -- Form of Purchase Agreement -- Equity*
1.3 -- Form of Purchase Agreement -- Preferred Securities*
3.1 -- Second Amended and Restated Articles of Incorporation of
American Classic Voyages Co. (incorporated by reference
to Exhibit 3.(i) to American Classic Voyages Co. Annual
Report of Form 10-K for the year ended December 31, 1998)
3.2 -- Third Amended and Restated Bylaws of American Classic
Voyages Co. (incorporated by reference to Exhibit 3.(ii)
to American Classic Voyages Co. Quarterly Report on Form
10-Q for the period ended September 30, 1999)
4.1 -- Form of Subordinated Indenture by and between American
Classic Voyages Co. and The Bank of New York, as Trustee
(including Form of Subordinated Debt Security)
4.2 -- Form of Junior Convertible Subordinated Indenture by and
between American Classic Voyages Co. and the Bank of New
York, as Trustee (including Form of Convertible
Subordinated Debenture)
4.3 -- Certificate of Trust of AMCV Capital Trust I
4.4 -- Declaration of Trust of AMCV Capital Trust I
4.5 -- Form of Amended and Restated Declaration of Trust of AMCV
Capital Trust I (including Form of Preferred Security)
4.6 -- Form of Preferred Securities Guarantee Agreement by
American Classic Voyages Co.
4.7 -- Form of Subordinated Debt Security -- The form of debt
security or securities with respect to each particular
offering will be filed as an exhibit subsequently
included or incorporated by reference herein
4.8 -- Form of Preferred Stock -- Any amendment to the American
Classic Voyages Co. Certificate of Incorporation or
Certificates of Designation authorizing the creation of
any series of Preferred Stock and setting forth the
rights, preferences and designations thereof will be
filed as an exhibit subsequently included or incorporated
by reference herein
4.9 -- Form of Preferred Security (included in Exhibit 4.5)
4.10 -- Form of Subordinated Debt Security (included in Exhibit
4.1)
4.11 -- Form of Convertible Subordinated Debenture (included in
Exhibit 4.2)
5.1 -- Opinion of Seyfarth, Shaw, Fairweather & Geraldson
5.2 -- Opinion of Richards, Layton & Finger, P.A.
12.1 -- Computation of Ratios of Earnings to Fixed Charges and
Preferred and Preference Stock Dividend Requirements
23.1 -- Consent of KPMG LLP
23.2 -- Consent of Seyfarth, Shaw, Fairweather & Geraldson
(included in Exhibit 5.1)
23.3 -- Consent of Richards, Layton & Finger, P.A.(included in
Exhibit 5.2)
24.1 -- Power of Attorney from Samuel Zell
24.2 -- Power of Attorney from John R. Berry
24.3 -- Power of Attorney from Bradbury Dyer, III
</TABLE>
II-3
<PAGE> 33
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
-------------- ----------------------
<C> <S>
24.4 -- Power of Attorney from Laurence S. Geller
24.5 -- Power of Attorney from Arthur A. Greenberg
24.6 -- Power of Attorney from Mark Slezak
24.7 -- Power of Attorney from Jerry R. Jacob
24.8 -- Power of Attorney from Joseph P. Sullivan
24.9 -- Power of Attorney from Jeffrey N. Watanabe
25.1 -- Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of The Bank of New
York, as Trustee under the Subordinated Indenture and the
Junior Convertible Subordinated Indenture
25.2 -- Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of The Bank of New
York (Delaware), as Trustee under the Declaration of
Trust of AMCV Capital Trust I
25.3 -- Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of the Bank of New
York, as Trustee of the Preferred Securities Guarantee
for the benefit of the holders of Preferred Securities of
AMCV Capital Trust I
</TABLE>
- ---------------
* To be filed as an exhibit to American Classic Voyages' Current Report on Form
8-K in connection with a specific offering.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant to Rule
424(b) under the Securities Act if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement.
(iii) 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the Registration Statement.
II-4
<PAGE> 34
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933 (the "Securities
Act"), each filing of the registrant's annual report pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 ("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.
(c) 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 foregoing provisions, 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. In the event that 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.
(d) The undersigned Registrant hereby undertakes that:
1. 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 Rule 424(b)(1) or (4) 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.
2. 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.
(e) The undersigned Registrants hereby undertake to file, if necessary, an
application for the purpose of determining the eligibility of the Trustees to
act under subsection (a) of Section 310 of the Trust Indenture Act of 1939, as
amended, in accordance with the rules and regulations prescribed by the
Securities and Exchange Commission under Section 305(b)(2) of such Act.
II-5
<PAGE> 35
SIGNATURES
Pursuant to the requirements of the Securities Act, American Classic
Voyages Co. 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 the City of Chicago, State of Illinois on the 14th day of
January, 2000.
AMERICAN CLASSIC VOYAGES CO.
By: /s/ PHILIP C. CALIAN
----------------------------------
Philip C. Calian
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ SAMUEL ZELL* Chairman of the Board January 14, 2000
- -----------------------------------------------------
Samuel Zell
/s/ PHILIP C. CALIAN President and Chief Executive January 14, 2000
- ----------------------------------------------------- Officer (Principal Executive
Philip C. Calian Officer), Director
/s/ RANDALL L. TALCOTT Vice President and Treasurer January 14, 2000
- ----------------------------------------------------- (Principal Financial and
Randall L. Talcott Accounting Officer)
/s/ JOHN R. BERRY Director January 14, 2000
- -----------------------------------------------------
John R. Berry
/s/ BRADBURY DYER, III* Director January 14, 2000
- -----------------------------------------------------
Bradbury Dyer, III
/s/ LAURENCE S. GELLER Director January 14, 2000
- -----------------------------------------------------
Laurence S. Geller
/s/ ARTHUR A. GREENBURG* Director January 14, 2000
- -----------------------------------------------------
Arthur A. Greenburg
/s/ MARK SLEZAK* Director January 14, 2000
- -----------------------------------------------------
Mark Slezak
/s/ JERRY R. JACOB* Director January 14, 2000
- -----------------------------------------------------
Jerry R. Jacob
/s/ JOSEPH P. SULLIVAN* Director January 14, 2000
- -----------------------------------------------------
Joseph P. Sullivan
</TABLE>
II-6
<PAGE> 36
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
Director
- -----------------------------------------------------
Emanuel L. Rouvelas
/s/ JEFFREY N. WATANABE Director January 14, 2000
- -----------------------------------------------------
Jeffrey N. Watanabe
* /s/ JORDAN B. ALLEN January 14, 2000
- -----------------------------------------------------
Jordan B. Allen
Attorney-in-Fact
</TABLE>
II-7
<PAGE> 37
SIGNATURES
Pursuant to the requirements of the Securities Act, AMCV Capital Trust I
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 the City of Chicago, State of Illinois on the 14th day of
January, 2000.
AMCV CAPITAL TRUST I
By: American Classic Voyages Co., as
Sponsor
By: /s/ JORDAN B. ALLEN
----------------------------------
Jordan B. Allen
Executive Vice President,
Secretary and General Counsel
II-8
<PAGE> 38
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
-------------- ----------------------
<C> <S>
1.1 -- Form of Purchase Agreement -- Debt*
1.2 -- Form of Purchase Agreement -- Equity*
1.3 -- Form of Purchase Agreement -- Preferred Securities*
3.1 -- Second Amended and Restated Articles of Incorporation of
American Classic Voyages Co. (incorporated by reference
to Exhibit 3.(i) to American Classic Voyages Co. Annual
Report of Form 10-K for the year ended December 31, 1998)
3.2 -- Third Amended and Restated Bylaws of American Classic
Voyages Co. (incorporated by reference to Exhibit 3.(ii)
to American Classic Voyages Co. Quarterly Report on Form
10-Q for the period ended September 30, 1999)
4.1 -- Form of Subordinated Indenture by and between American
Classic Voyages Co. and The Bank of New York, as Trustee
(including Form of Subordinated Debt Security)
4.2 -- Form of Junior Convertible Subordinated Indenture by and
between American Classic Voyages Co. and the Bank of New
York, as Trustee (including Form of Convertible
Subordinated Debenture)
4.3 -- Certificate of Trust of AMCV Capital Trust I
4.4 -- Declaration of Trust of AMCV Capital Trust I
4.5 -- Form of Amended and Restated Declaration of Trust of AMCV
Capital Trust I (including Form of Preferred Security)
4.6 -- Form of Preferred Securities Guarantee Agreement by
American Classic Voyages Co.
4.7 -- Form of Subordinated Debt Security -- The form of debt
security or securities with respect to each particular
offering will be filed as an exhibit subsequently
included or incorporated by reference herein
4.8 -- Form of Preferred Stock -- Any amendment to the American
Classic Voyages Co. Certificate of Incorporation or
Certificates of Designation authorizing the creation of
any series of Preferred Stock and setting forth the
rights, preferences and designations thereof will be
filed as an exhibit subsequently included or incorporated
by reference herein
4.9 -- Form of Preferred Security (included in Exhibit 4.5)
4.10 -- Form of Subordinated Debt Security (included in Exhibit
4.1)
4.11 -- Form of Convertible Subordinated Debenture (included in
Exhibit 4.2)
5.1 -- Opinion of Seyfarth, Shaw, Fairweather & Geraldson
5.2 -- Opinion of Richards, Layton & Finger, P.A.
12.1 -- Computation of Ratios of Earnings to Fixed Charges and
Preferred and Preference Stock Dividend Requirements
23.1 -- Consent of KPMG LLP
23.2 -- Consent of Seyfarth, Shaw, Fairweather & Geraldson
(included in Exhibit 5.1)
23.3 -- Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5.2)
24.1 -- Power of Attorney from Samuel Zell
24.2 -- Power of Attorney from John R. Berry
24.3 -- Power of Attorney from Bradbury Dyer, III
24.4 -- Power of Attorney from Laurence S. Geller
</TABLE>
<PAGE> 39
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
-------------- ----------------------
<C> <S>
24.5 -- Power of Attorney from Arthur A. Greenberg
24.6 -- Power of Attorney from Mark Slezak
24.7 -- Power of Attorney from Jerry R. Jacob
24.8 -- Power of Attorney from Joseph P. Sullivan
24.9 -- Power of Attorney from Jeffrey N. Watanabe
25.1 -- Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of The Bank of New
York, as Trustee under the Subordinated Indenture and the
Junior Convertible Subordinated Indenture
25.2 -- Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of The Bank of New
York (Delaware), as Trustee under the Declaration of
Trust of AMCV Capital Trust I
25.3 -- Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of the Bank of New
York, as Trustee of the Preferred Securities Guarantee
for the benefit of the holders of Preferred Securities of
AMCV Capital Trust I
</TABLE>
- ---------------
* To be filed as an exhibit to American Classic Voyages' Current Report on Form
8-K in connection with a specific offering.
<PAGE> 1
================================================================================
AMERICAN CLASSIC VOYAGES CO.
TO
THE BANK OF NEW YORK
TRUSTEE
-----------------------------
INDENTURE
DATED AS OF _____________
-----------------------------
SUBORDINATED DEBT SECURITIES
-----------------------------
================================================================================
<PAGE> 2
AMERICAN CLASSIC VOYAGES
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE
TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
Section 310 (a)(1) 6.9
(a)(2) 6.9
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 6.8; 6.10
Section 311 (a) 6.13
(b) 6.13
Section 312 (a) 7.1; 7.2
(b) 7.2
(c) 7.2
Section 313 (a) 7.3
(b) 7.3
(c) 7.3
(d) 7.3
Section 314 (a) 7.4
(a)(4) 1.4; 10.4
(b) Not Applicable
(c)(1) 1.1
(c)(2) 1.1; 1.2
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.2
Section 315 (a) 6.1
(b) 6.2
(c) 6.1
(d) 6.1
(e) 5.14
Section 316 (a) 1.1
(a)(1)(A) 5.2; 5.12
(a)(1)(B) 5.13
(a)(2) Not Applicable
(b) 5.8
(c) 1.4
Section 317 (a)(1) 5.3
(a)(2) 5.4
(b) 10.3
Section 318 (a) 1.7
- -------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..............1
<S> <C>
SECTION 1.1 Definitions..................................................1
SECTION 1.2 Compliance Certificates and Opinions.........................8
SECTION 1.3 Form of Documents Delivered to Trustee.......................8
SECTION 1.4 Acts of Holders; Record Dates................................9
SECTION 1.5 Notices, Etc., to Trustee and Company.......................10
SECTION 1.6 Notice to Holders; Waiver...................................10
SECTION 1.7 Conflict with Trust Indenture Act...........................11
SECTION 1.8 Effect of Headings and Table of Contents....................11
SECTION 1.9 Successors and Assigns......................................11
SECTION 1.10 Separability Clause.........................................11
SECTION 1.11 Benefits of Indenture.......................................12
SECTION 1.12 Governing Law...............................................12
SECTION 1.13 Legal Holidays..............................................12
SECTION 1.14 Language of Notices, Etc....................................12
SECTION 1.15 Incorporators, Stockholders, Officers and Directors of the
Company Exempt from Individual Liability....................12
ARTICLE II SECURITY FORMS.....................................................13
SECTION 2.1 Forms Generally.............................................13
SECTION 2.2 Form of Face of Security....................................13
SECTION 2.3 Form of Reverse of Security.................................16
SECTION 2.4 Global Securities...........................................21
SECTION 2.5 Form of Trustee's Certificate and Authorization.............22
ARTICLE III THE SECURITIES....................................................22
SECTION 3.1 Amount Unlimited; Issuable in Series........................22
SECTION 3.2 Denominations...............................................25
SECTION 3.3 Execution, Authentication, Delivery and Dating..............26
SECTION 3.4 Temporary Securities........................................27
SECTION 3.5 Registration, Registration of Transfer and Exchange.........28
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities............30
SECTION 3.7 Payment of Interest; Interest Rights Preserved..............31
SECTION 3.8 Persons Deemed Owners.......................................32
SECTION 3.9 Cancellation................................................32
SECTION 3.10 Computation of Interest.....................................33
SECTION 3.11 CUSIP Numbers...............................................33
ARTICLE IV SATISFACTION AND DISCHARGE.........................................33
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
SECTION 4.1 Satisfaction and Discharge of Indenture.....................33
SECTION 4.2 Application of Trust Money..................................35
ARTICLE V REMEDIES............................................................35
SECTION 5.1 Events of Default...........................................35
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment..........36
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee..................................................37
SECTION 5.4 Trustee May File Proofs of Claim............................38
SECTION 5.5 Trustee May Enforce Claims Without Possession of
Securities..................................................38
SECTION 5.6 Application of Money Collected..............................38
SECTION 5.7 Limitation on Suits.........................................39
SECTION 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest........................................39
SECTION 5.9 Restoration of Rights and Remedies..........................40
SECTION 5.10 Rights and Remedies Cumulative..............................40
SECTION 5.11 Delay or Omission Not Waiver................................40
SECTION 5.12 Control by Holders..........................................40
SECTION 5.13 Waiver of Past Defaults.....................................41
SECTION 5.14 Undertaking for Costs.......................................41
SECTION 5.15 Waiver of Usury, Stay or Extension Laws.....................41
ARTICLE VI THE TRUSTEE........................................................42
SECTION 6.1 Certain Duties and Responsibilities.........................42
SECTION 6.2 Notice of Defaults..........................................42
SECTION 6.3 Certain Rights of Trustee...................................42
SECTION 6.4 Not Responsible for Recitals or Issuance of
Securities..................................................43
SECTION 6.5 May Hold Securities.........................................44
SECTION 6.6 Money Held in Trust.........................................44
SECTION 6.7 Compensation and Reimbursement..............................44
SECTION 6.8 Disqualification; Conflicting Interests.....................45
SECTION 6.9 Corporate Trustee Required; Eligibility.....................45
SECTION 6.10 Resignation and Removal; Appointment of Successor...........45
SECTION 6.11 Acceptance of Appointment by Successor......................47
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business....................................................48
SECTION 6.13 Preferential Collection of Claims Against Company...........48
SECTION 6.14 Appointment of Authenticating Agent.........................48
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.................50
SECTION 7.1 Company to Furnish Trustee Names and Addresses of
Holders.....................................................50
SECTION 7.2 Preservation of Information; Communications to
Holders.....................................................50
SECTION 7.3 Reports by Trustee..........................................51
SECTION 7.4 Reports by Company..........................................51
SECTION 8.1 Company May Consolidate, Etc, Only on Certain
Terms.......................................................52
SECTION 8.2 Successor Substituted.......................................52
</TABLE>
<PAGE> 5
<TABLE>
<S> <C>
ARTICLE IX SUPPLEMENTAL INDENTURES............................................53
SECTION 9.1 Supplemental Indentures Without Consent of Holders..........53
SECTION 9.2 Supplemental Indentures with Consent of Holders.............54
SECTION 9.3 Execution of Supplemental Indentures........................55
SECTION 9.4 Effect of Supplemental Indentures...........................55
SECTION 9.5 Conformity with Trust Indenture Act.........................55
SECTION 9.6 Reference in Securities to Supplemental Indentures..........55
ARTICLE X COVENANTS...........................................................56
SECTION 10.1 Payment of Principal, Premium and Interest..................56
SECTION 10.2 Maintenance of Office or Agency.............................56
SECTION 10.3 Money for Securities Payments to Be Held in Trust...........56
SECTION 10.4 Statement by Officers as to Default.........................58
SECTION 10.5 Existence...................................................58
SECTION 10.6 Waiver of Certain Covenants.................................58
ARTICLE XI REDEMPTION OF SECURITIES...........................................59
SECTION 11.1 Applicability of Article....................................59
SECTION 11.2 Election to Redeem; Notice to Trustee.......................59
SECTION 11.3 Selection by Trustee of Securities to Be Redeemed...........59
SECTION 11.4 Notice of Redemption........................................60
SECTION 11.5 Deposit of Redemption Price.................................60
SECTION 11.6 Securities Payable on Redemption Date.......................60
SECTION 11.7 Securities Redeemed in Part.................................61
ARTICLE XII SINKING FUNDS.....................................................61
SECTION 12.1 Applicability of Article....................................61
SECTION 12.2 Satisfaction of Sinking Fund Payments with Securities.......62
SECTION 12.3 Redemption of Securities for Sinking Fund...................62
ARTICLE XIII DEFEASANCE.......................................................62
SECTION 13.1 Applicability of Article....................................62
SECTION 13.2 Legal Defeasance............................................62
SECTION 13.3 Covenant Defeasance.........................................64
SECTION 13.4 Application by Trustee of Funds Deposited for
Payment of Sec..............................................65
SECTION 13.5 Repayment to Company........................................65
ARTICLE XIV SUBORDINATION OF SECURITIES.......................................66
SECTION 14.1 Agreement to Subordinate....................................66
SECTION 14.2 Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities...................66
SECTION 14.3 No Payment on Securities in Event of Default on
Senior Debt.................................................68
SECTION 14.4 Payments on Securities Permitted............................68
SECTION 14.5 Authorization of Holders of Securities to Trustee
to Effect...................................................68
SECTION 14.6 Notices to Trustee..........................................68
SECTION 14.7 Trustee as Holder of Senior Debt............................69
SECTION 14.8 Modification of Terms of Senior Debt........................69
</TABLE>
<PAGE> 6
INDENTURE dated as of ________, ____, between AMERICAN CLASSIC VOYAGES
CO., a corporation duly organized and existing under the laws of Delaware (the
"Company"), having its principal office at Two North Riverside Plaza, Chicago,
Illinois 60606, and THE BANK OF NEW YORK, a New York banking corporation, as
Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
that are required to be a part of this Indenture and, to the extent applicable,
shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof,
as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly, or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted in the United States at the date of such computation;
<PAGE> 7
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(e) the words "Article" and "Section" refer to an Article and
Section, respectively, of this Indenture.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.4.
"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" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place.
"Bankruptcy Law," means Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the board of directors of the Company, or the
executive or any other committee of that board duly authorized to act in respect
thereof.
"Board Resolution" means a copy of a resolution certified by the
Corporate Secretary or an Assistant Secretary of the Company, the principal
financial officer of the Company or any other authorized officer of the Company
or a person duly authorized by any of them, to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or other
location, means, except as otherwise provided as contemplated by Section 3.1
with respect to any series of Securities, each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in that
Place of Payment or other location are authorized or obligated by law, executive
order or regulation to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under
<PAGE> 8
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, any of its Vice Presidents or any other
authorized officer of the Company or a person duly authorized by any of them,
and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which at the date hereof is ____________________, New York, New York _______.
"Corporation" includes corporations, associations, partnerships, limited
liability companies, joint-stock companies and business trusts.
"Covenant Defeasance" has the meaning specified in Section 13.3.
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
"Debt" means any obligation created or assumed by any Person for the
repayment of money borrowed and any purchase money obligation created or assumed
by such Person.
"Default" means, with respect to a series of Securities, any event which
is, or after notice or lapse of time or both would become, an Event of Default
with respect to Securities of such series.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Defeasance" has the meaning specified in Section 13.2.
"Definitive Security" means a Security other than a Global Security or a
temporary Security.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 3.1, until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter shall mean or include each Person which is then a Depositary
hereunder, and if at any time there is more than one such Person, shall be a
collective reference to such Persons.
<PAGE> 9
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"Global Security" means a Security in global form that evidences all or
part of the Securities of any series and is authenticated and delivered to, and
registered in the name of, the Depositary for such Securities or a nominee
thereof.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" also shall include the terms of a particular
series of Securities established as contemplated by Section 3.1.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Lien" means any mortgage, pledge, security interest, charge, lien or
other encumbrance of any kind, whether or not filed, recorded or perfected under
applicable law.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 5.1(c).
"Officer's Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President, any Vice President or any
other authorized officer of the Company or a person duly authorized by any of
them, and delivered to the Trustee. The officer signing an Officer's Certificate
given pursuant to Section 10.4 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion of legal counsel, who may
be an employee
<PAGE> 10
of or counsel for the Company and who shall be reasonably acceptable to
the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the stated principal amount thereof to be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to Section
5.2.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities; provided, however, that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(c) Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(d) Securities, except to the extent provided in Sections 13.2 and
13.3, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article Thirteen.
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (A) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof on such date pursuant to Section 5.2, (B) the principal amount of a
Security denominated in one or more currencies or currency units other than U.S.
dollars shall be the U.S. dollar equivalent of such currencies or currency
units, determined in the manner provided as contemplated by Section 3.1 on the
date of original issuance of such Security, of the principal amount (or, in the
case of an Original Issue Discount Security, the U.S. dollar equivalent (as so
determined) on the date of original issuance of such Security, of the amount
determined as provided in Clause (A) above) of such Security, and (C) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded. Securities so owned as
<PAGE> 11
described in Clause (C) above which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate or
rates of interest thereon, if any, the Stated Maturity or Stated Maturities
thereof, the original issue date or dates thereof, the redemption provisions, if
any, with respect thereto, and any other terms specified as contemplated by
Section 3.1 with respect thereto, are to be determined by the Company upon the
issuance of such Securities.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust, other
entity, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means, unless otherwise specifically provided for with respect to such
series as contemplated by Section 3.1, the office or agency of the Company in
The City of New York and such other place or places where, subject to the
provisions of Section 10.2, the principal of and any premium and interest on the
Securities of that series are payable as specified as contemplated by Section
3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 3.1.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
<PAGE> 12
"Senior Debt" means any Debt of the Company, except for such Debt that
is by its terms subordinated to or pari passu with the Securities.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as otherwise
provided in Section 9.5, provided, however, that if the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean each Trustee with respect to Securities of that series.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, each of which are not callable or redeemable at the option of the
issuer thereof.
"Vice President", when used with respect to the Company or Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 1.2 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates or opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall
<PAGE> 13
be given in the form of an Officer's Certificate, if to be given by an officer
of the Company, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (except for certificates provided for
in Section 10.4) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders; Record Dates.
<PAGE> 14
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed (either physically or by means of a facsimile
or an electronic transmission, provided that such electronic transmission is
transmitted through the facilities of a Depositary) by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered (either physically or by means of a facsimile or an electronic
transmission, provided that such electronic transmission is transmitted through
the facilities of a Depositary) to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 3.15 of the
Trust Indenture Act) conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership, principal amount and serial numbers of Securities held by
any Person, and the date of commencement of such Person's holding the same,
shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other action to the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
Without limiting the foregoing, a Holder entitled hereunder to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any different part of such principal amount.
The Company may set any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders of Securities of such series, but the Company shall have
<PAGE> 15
no obligation to do so. With regard to any record date set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant series on such
record date (or their duly appointed agents), and only such Persons, shall be
entitled to give or take the relevant action, whether or not such Holders remain
Holders after such record date.
SECTION 1.5 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Corporate Trustee
Administration Department, or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at Two North Riverside Plaza, Chicago, Illinois 60606, to the attention of the
Corporate Secretary, or at any other address previously furnished in writing to
the Trustee by the Company.
SECTION 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid (if international mail, by
air mail), to each Holder affected by such event, at his address as it appears
in the Security Register, not later than the latest date (if any), and not
earlier than the earliest date (if any), prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
<PAGE> 16
SECTION 1.7 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or excluded, as the case may be.
SECTION 1.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.10 Separability Clause.
In case any provision in this Indenture or in the 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 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.12 Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
SECTION 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of the Securities of any series which specifically
states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, provided that no
interest shall accrue for the period from and after such Interest
<PAGE> 17
Payment Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 1.14 Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent, waiver
or Act required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 1.15 Incorporators, Stockholders, Officers and Directors of the Company
Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of or
contained in this Indenture or of or contained in any Security, or for any claim
based thereon or otherwise in respect thereof, or in any Security, or because of
the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or any successor Person, either directly or through the
Company or any successor Person, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that all such liability is hereby expressly waived
and released as a condition of, and as a part of the consideration for, the
execution of this Indenture and the issue of the Securities.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by an authorized officer or other authorized
person on behalf of the Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 3.3 for the authentication
and delivery of such Securities.
<PAGE> 18
SECTION 2.2 Form of Face of Security.
------------------------
[ Insert any legend required by the United States Internal Revenue Code
and the regulations thereunder.]
[If a Global Security,--insert legend required by Section 2.4 of the
Indenture] [If applicable, insert--UNLESS THIS SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY). ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
AMERICAN CLASSIC VOYAGES CO.
[TITLE OF SECURITY]
NO. _____________
U.S.$_________
[CUSIP NO. _______________]
AMERICAN CLASSIC VOYAGES CO., a corporation duly incorporated and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _____________, or registered assigns,
the principal sum of __________ United States Dollars on _______________ [if the
Security is to bear interest prior to Maturity, insert--, and to pay interest
thereon from ______________________, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semiannually on
___________________ and _________________ in each year, commencing
____________________, at the rate of _______% per annum, until the principal
hereof is paid or made available for payment [if applicable, insert--, and at
the rate of _____% per annum on any overdue principal and premium and on any
overdue installment of interest]. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the ______________ or
_________________ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and
<PAGE> 19
may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice of which shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in such Indenture].
[If the Security is not to bear interest prior to Maturity, insert--The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ____% per annum, which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of ______% per annum, which shall accrue from the date
of such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
[If a Global Security, insert-- Payment of the principal of [(and
premium, if any)] and [if applicable, insert -- any such] interest on this
Security will be made by transfer of immediately available funds to a bank
account in _______________ designated by the Holder in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts [state other currency].]
[If a Definitive Security, insert -- Payment of the principal of [(and
premium, if any)) and [if applicable, insert -- any such] interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in ____________________, [in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts] [state other currency] [or subject to any laws or regulations
applicable thereto and to the right of the Company (as provided in the
Indenture) to rescind the designation of any such Paying Agent, at the [main]
offices of _________________ in __________________ and ______________ in
__________________, or at such other offices or agencies as the Company may
designate, by [United States Dollar] [state other currency] check drawn on, or
transfer to a [United States Dollar] account maintained by the payee with, a
bank in The City of New York [______________] (so long as the applicable Paying
Agent has received proper transfer instructions in writing at least [_____] days
prior to the payment date)] [if applicable, insert--: provided, however, that
payment of interest may be made at the option of the Company by [United States
Dollar] [state other currency] check mailed to the addresses of the Persons
entitled thereto as such addresses shall appear in the Security Register] [or by
wire transfer in immediately available funds to a [United States Dollar] [state
other currency] account maintained by the payee with a bank in The City of New
York [state other Place of Payment] (so long as the applicable Paying Agent has
received proper transfer instructions in writing by the Record Date prior to the
applicable Interest Payment Date)].]
Reference is hereby made to the further provisions of this Security set
forth on the reverse
<PAGE> 20
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
<PAGE> 21
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
AMERICAN CLASSIC VOYAGES CO.
By: __________________________
[Title]
SECTION 2.3 Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Company (the "Securities"), issued and to be issued in one or more series under
an Indenture dated as of , (the "Indenture"), between the Company and The Bank
of New York, as Trustee (the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, obligations, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. As
provided in the Indenture, the Securities may be issued in one or more series,
which different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest, if any, at different rates, may be
subject to different redemption provisions, if any, may be subject to different
sinking, purchase or analogous funds, if any, may be subject to different
covenants and Events of Default and may otherwise vary as in the Indenture
provided or permitted. This Security is one of the series designated on the face
hereof [if applicable, insert--, limited in aggregate principal amount to
U.S.$_________].
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, [if
applicable, insert-- (1) on _____________ in any year commencing with the year
_________ and ending with the year _______ through operation of the sinking fund
for this series at a Redemption Price equal to 100% of the principal amount, and
(2)] at any time [if applicable, insert -- on or after ______________________],
as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount): If
redeemed [if applicable, insert--on or before ______________, ____% and if
redeemed] during the 12-month period beginning ____________ of the years
indicated,
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
---- ----- ----------- -----------
<PAGE> 22
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable, insert--(whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, (1) on
____________ in any year commencing with the year ______ and ending with the
year ______________ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [if applicable, insert -- on or after _______________], as a
whole or in part, at the election of the Company, at the Redemption Prices for
redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If redeemed
during the 12-month period beginning _______________________ of the years
indicated,
REDEMPTION THROUGH REDEMPTION
YEAR REDEMPTION PRICE FOR PRICE FOR REDEMPTION OTHERWISE THAN
FUND OPERATION OF THE SINKING FUND THROUGH OPERATION OF THE SINKING
- ---- ----------------------------- -----------------------------------
and thereafter at a Redemption Price equal to ______% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert--The sinking fund for this series provides for
the redemption on ___________ in each year beginning with the year ____________
and ending with the year ______________ of [if applicable, -- not less than
$_______ ("mandatory sinking fund") and not more than] $_______ aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through [if
applicable,--mandatory] sinking fund payments may be credited against subsequent
[if applicable,--mandatory] sinking fund payments otherwise required to be made
[if applicable,--in the inverse order in which they become due].)
[If the Security is subject to redemption in part of any kind,
insert--In the event of
<PAGE> 23
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert--The Securities of this series are not redeemable
prior to Stated Maturity.]
[If the Security is not an Original Issue Discount Security, insert--If
an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the indenture.]
[If the Security is an Original Issue Discount Security, insert--If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
indenture. Such amount shall be equal to--insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable,
and (ii) of interest on any overdue principal and overdue interest, all of the
Company's obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series to be affected (voting as one class). The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all affected series
(voting as one class), on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture. The Indenture permits, with certain exceptions as therein provided,
the Holders of a majority in principal amount of Securities of any series then
Outstanding to waive past defaults under the Indenture with respect to such
series and their consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration of
transfer hereof or in exchange here for or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal
<PAGE> 24
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or [any
premium or] interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and [any premium and]
interest on this Security at the times, place(s) and rate, and in the coin or
currency, herein prescribed.
[If a Global Security, insert--This Global Security or portion hereof
may not be exchanged for Definitive Securities of this series except in the
limited circumstances provided in the Indenture.
The holders of beneficial interests in this Global Security will not be
entitled to receive physical delivery of Definitive Securities except as
described in the Indenture and will not be considered the Holders thereof for
any purpose under the Indenture.]
[If a Definitive Security, insert--As provided in the Indenture and
subject to certain limitations therein set forth, the transfer of this Security
is registerable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in [if
applicable, insert--any place where the principal of and any premium and
interest on this Security are payable] [if applicable, insert --The City of New
York[, or, subject to any laws or regulations applicable thereto and to the
right of the Company (limited as provided in the Indenture) to rescind the
designation of any such transfer agent, at the [main] offices of ____________in
____________ and ____________ in ________________ or at such other offices or
agencies as the Company may designate]], duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.]
The Securities of this series are issuable only in registered form
without coupons in denominations of U.S.$________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this
<PAGE> 25
Security is registered as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
This Security is subordinated in right of payment to Senior Debt, to the
extent provided in the Indenture.
No recourse under or upon any obligation, covenant or agreement of or
contained in the Indenture or of or contained in any Security, or for any claim
based thereon or otherwise in respect thereof, or in any Security, or because of
the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor Person, either directly or through
the Company or any successor Person, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment, penalty or
otherwise; it being expressly understood by each Holder that all such liability
is hereby expressly waived and released by the acceptance hereof and as a
condition of, and as part of the consideration for, issuance of the Securities
and the execution of the Indenture.
The Indenture contains provisions that relieve the Company from the
obligation to comply with certain restrictive covenants in the Indenture and for
satisfaction and discharge at any time of the entire indebtedness upon
compliance by the Company with certain conditions set forth in the Indenture.
This Security shall be governed by and construed in accordance with the
laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
[If a Definitive Security, insert as a separate page--
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(Please Print or Typewrite Name and Address of Assignee)
the within instrument of AMERICAN CLASSIC VOYAGES CO. and does hereby
irrevocably constitute and appoint __________________________ Attorney to
transfer said instrument on the books of the within-named Company, with full
power of substitution in the premises.
Please Insert Social Security or
other Identifying Number of Assignee: ________________________
Dated: _______________ ____________________________
Signature
<PAGE> 26
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.]
SECTION 2.4 Global Securities.
Every Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO 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.
If Securities of a series are issuable in whole or in part in the form
of one or more Global Securities, as specified as contemplated by Section 3.1,
then, notwithstanding Clause (i) of Section 3.1 and the provisions of Section
3.2, any Global Security shall represent such of the Outstanding Securities of
such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced or increased, as the case
may be, to reflect exchanges. Any endorsement of a Global Security to reflect
the amount, or any reduction or increase in the amount, of Outstanding
Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
a Company Order. Subject to the provisions of Sections 3.3, 3.4 and 3.5, the
Trustee shall deliver and redeliver any Global Security in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Global Security shall be in a Company
Order (which need not comply with Section 1.2 and need not be accompanied by an
Opinion of Counsel).
The provisions of the last sentence of Section 3.3 shall apply to any
security represented by a Global Security if such Security was never issued and
sold by the Company and the Company delivers to the Trustee the Global Security
together with a Company Order (which need not comply with Section 1.2 and need
not be accompanied by an Opinion of Counsel) with regard to the reduction or
increase, as the case may be, in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 3.3.
<PAGE> 27
SECTION 2.5 Form of Trustee's Certificate and Authorization.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
As Trustee
By: __________________________
Authorized Officer
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.3,
set forth, or determined in the manner provided, in an Officer's Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other series);
(b) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the series pursuant
to Section 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any Securities which,
pursuant to Section 3.3, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(d) the date or dates on which the principal of the Securities of
the series is payable or the method of determination thereof;
<PAGE> 28
(e) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method of determination thereof, the date or dates
from which such interest shall accrue, or the method of determination thereof,
the Interest Payment Dates on which any such interest shall be payable and the
Regular Record Date for any interest Payment Date on which any such interest
shall be payable on any Interest Payment Date;
(f) the place or places where, subject to the provisions of Section
10.2, the principal of and any premium and interest on Securities of the series
shall be payable, Securities of the series may be surrendered for registration
of transfer, Securities of the series may be surrendered for exchange and
notices, and demands to or upon the Company in respect of the Securities of the
series and this Indenture may be served;
(g) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(h) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or
upon the happening of a specified event or at the option of a Holder thereof and
the period or periods within which, the price or prices at which and the terms
and conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(i) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(j) whether payment of principal of and premium, if any, and
interest, if any, on the Securities of the series shall be without deduction for
taxes, assessments or governmental charges paid by Holders of the series;
(k) the currency, currencies or currency units in which payment of
the principal of and any premium and interest on any Securities of the series
shall be payable if other than the currency of the United States of America and
the manner of determining the equivalent thereof in the currency of the United
States of America for purposes of the definition of "Outstanding" in Section
1.1;
(l) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference to an
index, the manner in which such amounts shall be determined;
(m) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or a Holder
thereof, in one or more currencies or currency units other than that or those in
which the Securities are stated to be payable, the currency, currencies or
currency units in which payment of the principal of and any premium and interest
on Securities of such series as to which such election is made shall be payable,
and the periods within which and the terms and conditions upon which such
election is to be made;
<PAGE> 29
(n) the right, if any, of the Company to defer payments of interest
by extending the interest payment periods and specify the duration of such
extension, the Interest Payment Dates on which such interest shall be payable
and whether and under what circumstances additional interest on amounts deferred
shall be payable;
(o) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.2 or
the method of determination thereof;
(p) if and as applicable, that the Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities and,
in such case, the Depositary or Depositaries for such Global Security or Global
Securities and any circumstances other than those set forth in Section 3.5 in
which any such Global Security may be transferred to, and registered and
exchanged for Securities registered in the name of, a Person other than the
Depositary for such Global Security or a nominee thereof and in which any such
transfer may be registered;
(q) any deletions from, modifications of or additions to the Events
of Default set forth in Section 5.1 or the covenants of the Company set forth in
Article X pertaining to the Securities of the series;
(r) if and the terms and conditions upon which any Securities of the
series may be converted into or exchanged for securities, which may include,
without limitation, capital stock, of any class or series of the Company or any
other issuer;
(s) if other than as provided in Sections 13.2 and 13.3, the means
of defeasance or covenant defeasance as may be specified for the Securities of
the series;
(t) if other than the Trustee, the identity of the Security
Registrar and any Paying Agent; and
(u) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1(d)).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 3.3) set forth, or
determined in the manner provided, in the Officer's Certificate referred to
above or in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the Holders, for increases in the aggregate principal amount of such series of
Securities and issuances of additional Securities of such series or for the
establishment of additional terms with respect to the Securities of such series.
<PAGE> 30
If any of the terms of the series are established by action taken by or
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by an authorized officer or other authorized person on behalf
of the Company and delivered to the Trustee at or prior to the delivery of the
Officer's Certificate setting forth, or providing the manner for determining,
the terms of the series.
With respect to Securities of a series subject to a Periodic Offering,
such Board Resolution or Officer's Certificate may provide general terms for
Securities of such series and provide either that the specific terms of
particular Securities of such series shall be specified in a Company Order or
that such terms shall be determined by the Company, or one or more of the
Company's agents designated in an Officer's Certificate, in accordance with a
Company Order.
SECTION 3.2 Denominations.
The Securities of each series shall be issuable only in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 3.1. In the absence of any such specified denomination with respect to
the Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its Chief Financial Officer,
its President or any Vice President and need not be attested. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities; provided,
however, that in the case of Securities offered in a Periodic Offering, the
Trustee shall authenticate and deliver such Securities from time to time in
accordance with such other procedures (including, without limitation, the
receipt by the Trustee of oral or electronic instructions from the Company or
its duly authorized agents, thereafter promptly confirmed in writing) acceptable
to the Trustee as may be specified by or pursuant to a Company Order delivered
to the Trustee prior to the time of the first authentication of Securities of
such series. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be
fully
<PAGE> 31
protected in relying upon, an Opinion of Counsel stating,
(a) if the form or forms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 2.1, that such form or
forms have been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been, or in the case of
Securities of a series offered in a Periodic Offering, will be, established by
or pursuant to a Board Resolution as permitted by Section 3.1, that such terms
have been, or in the case of Securities of a series offered in a Periodic
Offering, will be, established in conformity with the provisions of this
Indenture, subject, in the case of Securities of a series offered in a Periodic
Offering, to any conditions specified in such Opinion of Counsel, and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
If such form or forms or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officer's Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any of such
Securities, the form or forms and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and the
other documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the
<PAGE> 32
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 3.9 for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 3.4 Temporary Securities.
Pending the preparation of Definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the Definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
Definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of Definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for Definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company maintained pursuant to Section 10.2 for the
purpose of exchanges of Securities of such series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor one or more Definitive Securities of the same series, of
any authorized denominations and of a like aggregate principal amount and tenor.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as Definitive Securities
of such series and tenor.
SECTION 3.5 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency of the Company
in The City of New York a register (the register maintained in such office or in
any other office or agency of the Company in a Place of Payment being herein
sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfer of Securities. The Company will prior
to the issuance of any Securities hereunder, appoint the Trustee as the initial
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided and its corporate trust office which, at the date
hereof, is located at ____________________, New York, New York _____ as the
initial office or agency in The City of New York where the Security Register
will be maintained. The Company may at any time replace such Security Registrar,
change such office or agency or act as its own Security Registrar. The Company
will give prompt written notice to the Trustee of any change of the Security
Registrar or of the location of such office or agency.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company maintained pursuant to Section
10.2 for such purpose, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
<PAGE> 33
transferees, one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series (except a Global
Security) may be exchanged for other Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (1) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 11.3 and ending
at the close of business on the day of such mailing, or (2) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
Any exchange of a Global Security for other Securities may be made in
whole or in part, and all Securities issued in exchange for a Global Security or
any portion thereof shall be registered in such names as the Depositary for such
Global Security shall direct.
If at any time the Depositary for the Securities notifies the Company
that it is unwilling or unable to continue as Depositary for the Securities or
if at any time the Depositary for the Securities shall no longer be qualified to
serve as the Depositary, the Company shall appoint a successor Depositary with
respect to the Securities. If a successor Depositary for the Securities is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company will execute, and the
Trustee, upon receipt of a Company
<PAGE> 34
Order for the authentication and delivery of definitive Securities, will
authenticate and deliver Securities of like tenor and terms in definitive form
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that
Securities issued in the form of one or more Global Securities shall no longer
be represented by such Global Securities. In such event, the Company will
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Securities, will authenticate and deliver Securities
of like tenor and terms in definitive form in an aggregate principal amount
equal to the principal amount of the Global Security or Securities in exchange
for such Global Security or Securities.
Notwithstanding any other provision in this Indenture, no Global
Security may be transferred to, or registered or exchanged for Securities
registered in the name of, any Person other than the Depositary for such Global
Security or any nominee thereof, and no such transfer may be registered, unless
(1) such Depositary (A) notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Security or (B) ceases to be qualified to
serve as Depositary, (2) the Company executes and delivers to the Trustee a
Company Order that such Global Security shall be so transferable, registrable
and exchangeable, and such transfers shall be registrable, or (3) there shall
have occurred and be continuing an Event of Default. Notwithstanding any other
provision in this Indenture, a Global Security to which the restriction set
forth in the preceding sentence shall have ceased to apply may be transferred
only to, and may be registered and exchanged for Securities registered only in
the name or names of, such Person or Persons as the Depositary for such Global
Security shall have directed and no transfer thereof other than such a transfer
may be registered.
Every Security authenticated and delivered upon registration of
transfer, or in exchange for or in lieu, of a Global Security to which the
restriction set forth in the first sentence of the preceding paragraph shall
apply, whether pursuant to this Section, Sections 3.4, 3.6 or otherwise, shall
be authenticated and delivered in the form of, and shall be, a Global Security
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, together with,
in proper cases, such security or indemnity as may be required by the Company or
the Trustee to save each of them and any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the
<PAGE> 35
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
exchange for any mutilated Security or in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Security shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 3.1 with respect
to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of
<PAGE> 36
such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following Clause (b).
(b) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.5,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security, shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 3.8 Persons Deemed Owners.
Except as otherwise provided as contemplated by Section 3.1 with respect
to any series of Securities, prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of principal of
and any premium and (subject to Sections 3.5 and 3.7) any interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such Global Security, and such Depositary may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such Global
Security for all purposes whatsoever. None of the Company, the Trustee nor any
agent of the Company or the Trustee will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial
<PAGE> 37
ownership interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 3.9 Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of in accordance with its
customary procedures, and the Trustee shall thereafter deliver to the Company a
certificate with respect to such disposition.
SECTION 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.11 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (in
addition to the other identification numbers printed on the Securities), and, if
so, the Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such "CUSIP" numbers either
as printed on the Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Securities, and any such redemption shall not be affected by any defect in
or omission of such "CUSIP" numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
with respect to Securities of any series (except as to any surviving rights of
registration of transfer or exchange of such Securities herein expressly
provided for), and the Trustee, at the expense of the Company,
<PAGE> 38
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to such Securities, when
(a) either
(i) all such Securities theretofore authenticated and
delivered (other than (1) such Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 3.6, and (2) such Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 10.3) have been delivered to the Trustee
for cancellation; or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year, or
(C) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense,
of the Company, and the Company in the case of (A), (B) or (C)
above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount of money in the
currency or currency units in which such Securities are payable
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the date
of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case
may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to such Securities; and
(c) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to Securities of any series, (x) the obligations of the Company to the
Trustee under Section 6.7, the obligations of the Trustee to any Authenticating
Agent under Section 6.14 and the right of the Trustee to resign under Section
6.10 shall survive, and (y) if money shall have been deposited with the Trustee
pursuant to subclause (ii) of Clause (a) of this Section, the obligations of the
Company and/or the Trustee under Sections 4.2, 6.6, 7.1 and 10.2 and the last
paragraph of Section 10.3
<PAGE> 39
shall survive.
SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days (whether or not such payment is prohibited by the provisions
of Article XIV hereof); or
(b) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity (whether or not such payment is
prohibited by the provisions of Article XIV hereof); or
(c) default in the performance, or breach, of any term, covenant or
warranty of the Company in this Indenture (other than a term, covenant or
warranty a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a period of 60 days after
there, has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(d) the Company pursuant to or within the meaning of any Bankruptcy
Law (A) commences a voluntary case, (B) consents to the entry of any 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, or (D) makes a
general assignment for the benefit of its creditors; or
<PAGE> 40
(e) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that (A) is for relief against the Company in an
involuntary case, (B) appoints a Custodian of the Company or for all or
substantially all of its property, or (C) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect for 90 days; or
(f) any other Event of Default provided as contemplated by Section
3.1 with respect to Securities of that series.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue interest on all Securities of that series;
(ii) the principal of (and premium, if any, on any Securities
of that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities;
(iii) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor
in such Securities; and
(iv) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(b) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of Securities of that series which
have become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 5.13.
<PAGE> 41
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days (whether or not such payment is prohibited by the provisions
of Article XIV hereof), or
(b) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof (whether or not such payment is
prohibited by the provisions of Article XIV hereof), the Company will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for
principal and any premium and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and
premium and on any overdue interest, at the rate or rates prescribed therefor in
such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company or any other
obligor upon the Securities, their property or their creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding, In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such
<PAGE> 42
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.7.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official be a member of a creditors' or
other similar committee.
SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.7;
SECOND: Subject to Article XIV, to the payment of the amounts then due
and unpaid for principal of and any premium and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal and any premium and interest,
respectively; and
THIRD: The balance, if any, to the Company.
SECTION 5.7 Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
<PAGE> 43
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that series;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
Indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Sections 3.5 and
3.7) interest on such Security on the respective Stated Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
<PAGE> 44
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12 Control by Holders.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series; provided, however, that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture;
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(c) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good faith
shall determine that the proceeding so directed would involve the Trustee in
personal liability.
SECTION 5.13 Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except
(a) a continuing default in the payment of the principal of or any
premium or interest on any Security of such series, or
<PAGE> 45
(b) a default in respect of a covenant or provision hereof which
under Article IX cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14 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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, however, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company.
SECTION 5.15 Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 6.2 Notice of Defaults.
<PAGE> 46
If a Default occurs and is continuing with respect to the Securities of
any series, the Trustee shall, within 90 days after it occurs, transmit, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of all uncured or unwaived Defaults known to it; provided, however, that,
except in the case of a Default in payment on the Securities of any series, the
Trustee may withhold the notice if and so long as the board of directors, the
executive committee or a trust committee of its directors and/or its duly
authorized officers in good faith determines that withholding such notice is in
the interests of Holders of Securities of such series; provided further,
however, that, in the case of any default or breach of the character specified
in Section 5.1(c) with respect to the Securities of such series, no such notice
to Holders shall be given until at least 60 days after the occurrence thereof.
SECTION 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely on and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order
(other than delivery of any Security to the Trustee for authentication and
delivery pursuant to Section 3.3, which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into
the
<PAGE> 47
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document but the Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee may request that the Company deliver an Officer's
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officer's Certificate may be signed by any person authorized to sign an
Officer's Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
SECTION 6.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. Neither the Trustee nor any Authenticating
Agent makes any representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee or any Authenticating Agent shall
not be accountable for the use or application by the Company of Securities or
the proceeds thereof.
SECTION 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.8 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 6.7 Compensation and Reimbursement.
The Company agrees:
<PAGE> 48
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except those attributable
to its negligence or bad faith.
The obligations of the Company under this Section to compensate the
Trustee and to pay or reimburse the Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder. Such additional
indebtedness shall be secured by a lien prior to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities.
Without limiting any rights available to the Trustee under applicable
law, when the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.1(d) or Section 5.1(e), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of
administration under any applicable Bankruptcy Law.
The provisions of this Section shall survive the satisfaction and
discharge of this Indenture and the defeasance of the Securities.
SECTION 6.8 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.9 Corporate Trustee Required; Eligibility.
There shall at all times be one or more Trustees hereunder with respect
to the Securities of each series, at least one of which shall be a Person that
is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus required by the Trust Indenture Act. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of a supervising or examining authority, then for the purposes of
this Section, the
<PAGE> 49
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 6.10 Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities of one
or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(a) the Trustee shall fall to comply with Section 6.8 after written
request therefor by the Company or by any Holder who has been a bona fide Holder
of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or by any
such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (A) the Company may remove
the Trustee with respect to all Securities, or (B) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time
<PAGE> 50
there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 6.11, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 1.6. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be
<PAGE> 51
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees as co- trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates, but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 6.14 Appointment of Authenticating Agent.
The Trustee (upon notice to the Company) may appoint an Authenticating
Agent or
<PAGE> 52
Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue (in accordance with procedures acceptable to
the Trustee) and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.6, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of such Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or such Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
Except with respect to an Authenticating Agent appointed at the request
of the Company,
<PAGE> 53
the Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed by the Company for such payments, subject to
the provisions of Section 6.7.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
The Bank of New York,
As Trustee
By:______________________________
As Authenticating Agent
By:_______________________________
Authorized Officer
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than May 15 and November 15 in each
year, a list for each series of Securities, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities of
such series as of the preceding April 30 or October 31, as the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for Securities of a series, no such list need be furnished with
respect to such series of Securities.
SECTION 7.2 Preservation of Information; Communications to Holders.
<PAGE> 54
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 3.12 of the Trust Indenture Act.
The rights of the Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 7.3 Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than _______ in each calendar year
with respect to the 12-month period ending on the previous _________, commencing
_______, _____.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed for trading on any stock
exchange.
SECTION 7.4 Reports by Company.
The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company is not required to file information, documents or reports pursuant
to either of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and
<PAGE> 55
covenants of this Indenture as may be required from time to time by such rules
and regulations; and
(c) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof with
the Trustee, such summaries of any information, documents and reports required
to be filed by the Company pursuant to paragraphs (a) and (b) of this Section as
may be required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc, Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or sell, lease or transfer its properties and assets as, or substantially as, an
entirety to, any Person, unless:
(a) the Person formed by or surviving any such consolidation or any
merger (if other than the Company), or to which such transfer or lease 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;
(b) (A) in the case of a merger, the Company is the surviving
entity, or (B) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by sale or transfer, or which leases, the
properties and assets of the Company as, or substantially as, an entirety shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form reasonably satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and interest on all the
Securities and the performance or observance of every covenant and condition of
this Indenture on the part of the Company to be performed or observed;
(c) immediately after giving effect to such transaction, no Default
or Event of Default exists; and
(d) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, transfer or lease and the supplemental indenture required in
connection with such transaction comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
SECTION 8.2 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any sale, transfer or lease of the properties and
assets of the Company as, or
<PAGE> 56
substantially as, an entirety in accordance with Section 8.1, the successor
Person formed by such consolidation or into which the Company is merged or to
which such sale, transfer or lease is made, shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named originally as
the Company herein, and hereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(a) to secure the Securities; or
(b) to evidence the succession of another Person to the Company and
the assumption by such successor of the covenants of the Company herein and in
the Securities; or
(c) to add to the covenants of the Company or the Events of Default
for the benefit of the Holders of all or any series of Securities (and if such
covenants or Events of Default are to be for the benefit of less than all series
of Securities, stating that such covenants or Events of Default, as the case may
be, are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(d) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities; provided, however,
that any such addition, change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(f) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, to comply with
any applicable mandatory provisions of law or to make any other provisions with
respect to matters or questions arising under this Indenture, provided that such
action pursuant to this Clause (f) shall not adversely affect the interests of
the Holders of Securities of any series in any material respect; or
(g) to evidence and provide for the acceptance of appointment
<PAGE> 57
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11; or
(h) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the Trust Indenture Act or under any similar federal statute
subsequently enacted, and to add to this Indenture such other provisions as may
be expressly required under the Trust Indenture Act.
SECTION 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series affected by such supplemental
indenture (voting as one class), by Act of said Holders delivered to the Company
and the Trustee, the Company and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest, if any, on, any Security, or reduce the
principal amount thereof or premium, if any, on or the rate of interest thereon
or modify the provisions of this Indenture with respect to the subordination of
the Securities in a manner adverse to the Holders or adversely affect any right
to convert or exchange any Security into any other security, or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(c) change any obligation of the Company, with respect to
Outstanding Securities of a series, to maintain an office or agency in the
places and for the purposes specified in Section 10.2 for such series, or
(d) modify any of the provisions of this Section, Section 5.13 or
Section 10.6, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 6.11 and 9.1(g).
<PAGE> 58
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust indenture Act as then in effect.
SECTION 9.6 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
<PAGE> 59
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
SECTION 10.2 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series 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. 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 Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations, provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Except as otherwise specified with respect to a series of Securities as
contemplated by Section 3.1, the Company hereby initially designates as the
Place of Payment for each series of Securities The City and State of New York,
and initially appoints the Trustee at its Corporate Trust Office as the
Company's office or agency for each such purpose in such city.
SECTION 10.3 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal and any
premium and interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
or any premium or interest on any
<PAGE> 60
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) hold all sums held by it for
the payment of the principal of (and premium, if any) or interest, if any, on
Securities of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided; (2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest, if any, on the
Securities of that series; and (3) during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
held in trust by such Paying Agent for payment in respect of the Securities of
that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease, provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment with
respect to such series, notice that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 10.4 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 150 days after the end
of each fiscal year of the Company ending after the date hereof, an Officer's
Certificate, stating whether or not to the best knowledge of the signer thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
<PAGE> 61
SECTION 10.5 Existence.
Subject to Article Eight, the Company will do or cause to be done all
the things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if it shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company.
SECTION 10.6 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 10.5, with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in aggregate principal amount of the Outstanding Securities
of all affected series (voting as one class) shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
A waiver which changes or eliminates any term, provision or condition
of this Indenture which has expressly been included solely for the benefit of
one or more particular series of Securities, or which modifies the rights of the
Holders of Securities of such series with respect to such term, provision or
condition, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series.
<PAGE> 62
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any series)
in accordance with this Article.
SECTION 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities (1) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, or (2)
pursuant to an election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction or condition.
SECTION 11.3 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 45 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
<PAGE> 63
SECTION 11.4 Notice of Redemption.
Notice of redemption shall be given by first-class mail (if
international mail, by air mail), postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date, to each Holder of Securities to
be redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of any series and of
a specified tenor are to he redeemed, the identification (and, in the case of
partial redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(d) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(e) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(f) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 11.5 Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 11.6 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease to bear
interest. Upon surrender of any such Security for redemption in accordance with
said notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that,
unless otherwise specified as contemplated by Section
<PAGE> 64
3.1, installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 11.7 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.2.
Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
SECTION 12.2 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
<PAGE> 65
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.3 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officer's Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 12.2 and stating the basis for such credit and that such Securities have
not been previously so credited, and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 11.3 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
DEFEASANCE
SECTION 13.1 Applicability of Article.
The provisions of this Article shall be applicable to each series of
Securities except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
SECTION 13.2 Legal Defeasance.
In addition to discharge of the Indenture pursuant to Section 4.1, the
Company shall be deemed to have paid and discharged the entire indebtedness on
all the Securities of such a series on the 91st day after the date of the
deposit referred to in Clause (a) below, and the provisions of
this Indenture with respect to the Securities of such series shall no longer be
in effect (except as to (1) rights of registration of transfer and exchange of
Securities of such series and the Company's right of optional redemption, if
any, (2) substitution of mutilated, destroyed, lost or stolen Securities, (3)
rights of holders of Securities to receive payments of principal thereof and
interest thereon, upon the original stated due dates therefor or on the
specified redemption dates therefor (but not upon acceleration), and remaining
rights of the holders to receive mandatory sinking fund payments, if any, (4)
the rights, obligations, duties and immunities of the Trustee hereunder, (5) the
rights, if any, to convert or exchange the Securities of such series, (6) the
rights of the holders
<PAGE> 66
of Securities of such series as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them, and (7)
the obligations of the Company under Section 10.2), and the Trustee, at the
expense of the Company, shall, upon a Company Request, execute proper
instruments acknowledging the same, if the conditions set forth below are
satisfied (hereinafter, "defeasance"):
(a) The Company has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust, for the purposes of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Securities of such series (i) cash in an
amount, or (ii) in the case of any series of Securities the payments on which
may only be made in legal coin or currency of the United States, U.S. Government
Obligations, maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash, or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay (A) the principal and interest and premium, if any, on all
Securities of such series on each date that such principal, interest or premium,
if any, is due and payable or on any Redemption Date established pursuant to
Clause (c) below, and (B) any mandatory sinking fund payments on the dates on
which such payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series;
(b) The Company has delivered to the Trustee an Opinion of Counsel
based on the fact that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the date
hereof, there has been a change in the applicable federal income tax law, in
either case to the effect that, and such opinion shall confirm that, the holders
of the Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and defeasance and will
be subject to federal income tax on the same amount and in the same manner and
at the same times, as would have been the case if such deposit and defeasance
had not occurred;
(c) If the Securities are to be redeemed prior to Stated Maturity
(other than from mandatory sinking fund payments or analogous payments), notice
of such redemption shall have been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee shall have been made;
(d) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default shall have occurred and be continuing
on the date of such deposit; and
(e) The Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this provision
have been complied with.
For this purpose, such defeasance means that the Company and any
other obligor upon the Securities of such series shall be deemed to have paid
and discharged the entire debt represented by the Securities of such series,
which shall thereafter be deemed to be "Outstanding" only for the
<PAGE> 67
purposes of Section 13.4 and the rights and obligations referred to in Clauses
(1) through (7), inclusive, of the first paragraph of this Section, and to have
satisfied all its other obligations under the Securities of such series and this
Indenture insofar as the Securities of such series are concerned.
SECTION 13.3 Covenant Defeasance.
The Company and any other obligor, if any, shall be released on the
91st day after the date of the deposit referred to in Clause (a) below from its
obligations under Sections 7.4., 8.1 and 10.5 with respect to the Securities of
any series on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and the Securities of such series shall
thereafter be deemed to be not "Outstanding" for the purposes of any request,
demand, authorization, direction, notice, waiver, consent or declaration or
other action 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 Securities of such series, 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 Section, whether directly or indirectly by
reason of any reference elsewhere herein to such Section or by reason of any
reference in such Section 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 5.1, but, except as specified above, the remainder of this
Indenture and the Securities of such series shall be unaffected thereby. The
following shall be the conditions to application of this Section 13.3:
(a) The Company has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of such series, (i) cash in an amount,
or (ii) in the case of any series of Securities the payments on which may only
be made in legal coin or currency of the United States, U.S. Government
Obligations, maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash, or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay (A) the principal and interest and premium, if any, on all
Securities of such series on each date that such principal, interest or premium,
if any, is due and payable or on any Redemption Date established pursuant to
Clause (b) below, and (B) any mandatory sinking fund payments on the day on
which such payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series;
(b) If the Securities are to be redeemed prior to Stated Maturity
(other than from mandatory sinking fund payments or analogous payments), notice
of such redemption shall have been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee shall have been made;
(c) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default shall have occurred and be continuing
on the date of such
<PAGE> 68
deposit;
(d) The Company shall have delivered to the Trustee an Opinion of
Counsel which shall confirm that the holders of the Securities of such series
will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit and covenant 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 deposit and covenant defeasance had not
occurred; and
(e) The Company shall have delivered to the Trustee an Officer's
Certificate stating that all conditions precedent provided for relating to the
covenant defeasance contemplated by this provision have been complied with.
SECTION 13.4 Application by Trustee of Funds Deposited for Payment of
Securities.
Subject to the provisions of the last paragraph of Section 10.3, all
moneys or U.S. Government Obligations deposited with the Trustee pursuant to
Section 13.2 are 13.3 (and all funds earned on such moneys or U.S. Government
Obligations) shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent), to the Holders of the particular Securities of such series for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest
but such money need not be segregated from other funds except to the extent
required by law. Subject to Sections 13.2 and 13.3, the Trustee promptly shall
pay to the Company upon request any excess moneys held by it at any time.
SECTION 13.5 Repayment to Company.
The Trustee and any Paying Agent promptly shall pay or return to the
Company upon Company Request any money and U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of and
any interest on the Securities of any series for which money or U.S. Government
Obligations have been deposited pursuant to Section 13.2 or 13.3.
The provisions of the last paragraph of Section 10.3 shall apply to any
money held by the Trustee or any Paying Agent under this Article that remains
unclaimed for two years after the Maturity of any series of Securities for which
money or U.S. Government Obligations have been deposited pursuant to Section
13.2 or 13.3.
ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 14.1 Agreement to Subordinate.
<PAGE> 69
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of Securities, by his acceptance thereof, likewise
covenants and agrees, that the payment of the principal of (and premium, if
any), interest on each and all of the Securities is hereby expressly
subordinated, to the extent and in the manner hereinafter set forth, in right of
payment to the prior payment in full of all Senior Debt.
SECTION 14.2 Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities.
Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization of the Company, whether in bankruptcy,
insolvency, reorganization or receivership proceedings or upon an assignment for
the benefit of creditors or any other marshalling of the assets and liabilities
of the Company or otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred
in this Indenture upon the Senior Debt and the holders thereof with respect to
the Securities and the Holders thereof by a lawful plan or reorganization under
applicable bankruptcy law),
(a) the holders of all Senior Debt shall be entitled to receive
payment in full of the principal thereof, premium, if any, interest, and any
interest thereon, due thereon before the Holders of the Securities are entitled
to receive any payment upon the principal, premium, interest of or on the
Securities or interest on overdue amounts thereof; and
(b) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article XIV shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the holders of Senior
Debt or their representative or representatives or to the trustee or trustees
under anyindenture under which any instruments evidencing any of such Senior
Debt may have been issued, ratably according to the aggregate amounts remaining
unpaid on account of the principal of, premium, if any, interest, and any
interest thereon, on the Senior Debt held or represented by each, to the extent
necessary to make payment in full of all Senior Debt remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of such
Senior Debt; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, shall be received by the Trustee or the Holders of the
Securities before all Senior Debt is paid in full, such payment or distribution
shall be paid over to the holders of such Senior Debt or their representative or
representatives or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Debt may have been issued, ratably
as aforesaid, for application to the payment of all Senior Debt remaining unpaid
until all such Senior Debt shall have been paid in full, after giving effect to
any concurrent payment or distribution to the holders of such Senior Debt.
Subject to the payment in full of all Senior Debt, the Holders of the
Securities shall be
<PAGE> 70
subrogated to the rights of the holders of Senior Debt to receive payments or
distributions of cash, property or securities of the Company applicable to
Senior Debt until the principal, premium, interest, and any interest thereon, of
or on the Securities shall be paid in full and no such payments or distributions
to the Holders of the Securities of cash, property or securities otherwise
distributable to the Senior Debt shall, as between the Company, its creditors
other than the holders of Senior Debt, and the Holders of the Securities, be
deemed to be a payment by the Company to or on account of the Securities. It is
understood that the provisions of this Article XIV are and are intended solely
for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of Senior Debt, on the other hand.
Nothing contained in this Article XIV or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company, its creditors
other than the holders of Senior Debt, and the Holders of the Securities, the
obligation of the Company, which is unconditional and absolute, to pay to the
Holders of the Securities the principal, premium, interest, and any interest
thereon, of or on the Securities as and when the same shall become due and
payable in accordance with their terms, or to affect the relative rights of the
Holders of the Securities and creditors of the Company other than the holders of
Senior Debt, nor shall anything herein or in the Securities prevent the Trustee
or the Holder of any Security from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to the rights, if
any, under this Article XIV of the holders of Senior Debt in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy. Upon any payment or distribution of assets of the Company referred to in
this Article XIV, the Trustee shall be entitled to conclusively rely upon a
certificate of the liquidating trustee or agent or other person making any
distribution to the Trustee for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of Senior Debt and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon, and all other facts pertinent thereto or
to this Article XIV.
The Trustee, however, shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt. The Trustee shall not be liable to any such holder
if it shall pay over or distribute to or on behalf of Holders of Securities or
the Company moneys or assets to which any holder of Senior Debt shall be
entitled by virtue of this Article XIV. The rights and claims of the Trustee
under Section 6.7 shall not be subject to the provisions of this Article XIV.
If the Trustee or any Holder of Securities does not file a proper claim
or proof of debt in the form required in any proceeding referred to above prior
to 30 days before the expiration of the time to file such claim in such
proceeding, then the holder of any Senior Debt is hereby authorized, and has the
right, to file an appropriate claim or claims for or on behalf of such Holder of
Securities.
SECTION 14.3 No Payment on Securities in Event of Default on Senior Debt.
No payment by the Company on account of principal, premium, interest or
other amounts, and any interest thereon, of or on the Securities shall be made
unless full payment of amounts then due for principal, premium, if any, sinking
funds, and interest or other amounts on Senior Debt has been made or duly
provided for in money or money's worth.
<PAGE> 71
SECTION 14.4 Payments on Securities Permitted.
Nothing contained in this Indenture or in any of the Securities shall
(a) affect the obligation of the Company to make, or prevent the Company from
making, at any time except as provided in Sections 14.2 and 14.3, payments of
principal, premium, interest, and any interest thereon, of or on the Securities
or (b) prevent the application by the Trustee of any moneys deposited with it
hereunder to the payment of or on account of the principal, premium, interest or
other amounts, and any interest thereon, of or on the Securities unless the
Trustee shall have received at its Corporate Trust Office written notice of any
event prohibiting the making of such payment Business Days (i) prior to the date
fixed for such payment, (ii) prior to the execution of an instrument to satisfy
and discharge this Indenture based upon the deposit of funds under Section
4.1(a)(ii), (iii) prior to the execution of an instrument acknowledging the
defeasance of such Securities pursuant to Section 13.2 or (iv) prior to any
deposit pursuant to clause (a) of Section 13.3 with respect to such Securities.
SECTION 14.5 Authorization of Holders of Securities to Trustee to Effect
Subordination.
Each Holder of Securities by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article XIV and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.6 Notices to Trustee.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee located at the Corporate Trust Office of the Trustee of any fact
known to the Company which would prevent the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article XIV or any other provisions of this Indenture, neither the Trustee nor
any Paying Agent (other than the Company) shall be charged with knowledge of the
existence of any Senior Debt or of any event which would prohibit the making of
any payment of moneys to or by the Trustee or such Paying Agent, unless and
until the Trustee or such Paying Agent shall have received (in the case of the
Trustee, at its Corporate Trust Office) written notice thereof from the Company
or from the holder of any Senior Debt or from the trustee for or representative
of any Senior Debt together with proof satisfactory to the Trustee of such
holding of Senior Debt or of the authority of such trustee or representative;
provided, however, that if at least two Business Days prior to the date upon
which by the terms hereof any such moneys may become payable for any purpose
(including, without limitation, the payment of the principal, premium, interest,
of or on any Security, or any interest thereon) or the date on which the Trustee
shall execute an instrument acknowledging satisfaction and discharge of this
Indenture or the defeasance of Securities pursuant to Section 13.2 or the date
on which a deposit pursuant to clause (a) of Section 13.3 is made, the Trustee
shall not have received with respect to such moneys or the moneys deposited with
it as a condition to such satisfaction and discharge or defeasance the notice
provided for in this Section 14.6, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such moneys and to apply the same to the purpose for which they were
received, and shall not be affected by
<PAGE> 72
any notice to the contrary, which may be received by it on or after such two
Business Days prior to such date. The Trustee shall be entitled to conclusively
rely on the delivery to it of a written notice by a person representing himself
to be a holder of Senior Debt (or a trustee or representative on behalf of such
holder) to establish that such a notice has been given by a holder of Senior
Debt or a trustee or representative on behalf of any such holder. In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Debt to participate in
any payment or distribution pursuant to this Article Fourteen, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Debt 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 XIV and,
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
SECTION 14.7 Trustee as Holder of Senior Debt.
The Trustee shall be entitled to all the rights set forth in this
Article XIV in respect of any Senior Debt at any time held by it to the same
extent as any other holder of Senior Debt and nothing in this Indenture shall be
construed to deprive the Trustee of any of its rights as such holder.
SECTION 14.8 Modification of Terms of Senior Debt.
Any renewal or extension of the time of payment of any Senior Debt or
the exercise by the holders of Senior Debt of any of their rights under any
instrument creating or evidencing Senior Debt, including without limitation the
waiver of default thereunder, may be made or done all without notice to or
assent from Holders of the Securities or the Trustee.
No compromise, alteration, amendment, modification, extension, renewal
or other change of, or waiver, consent or other action in respect of, any
liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Debt is outstanding or of such Senior Debt, whether or not such release
is in accordance with the provisions of any applicable document, shall in any
way alter or affect any of the provisions of this Article XIV or of the
Securities relating to the subordination thereof.
-----------------------
This instrument may be executed with counterpart signature pages or in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
<PAGE> 73
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
AMERICAN CLASSIC VOYAGES CO.
By:
-------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
-------------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 4.2
================================================================================
AMERICAN CLASSIC VOYAGES CO.
TO
THE BANK OF NEW YORK
TRUSTEE
------------------------------
JUNIOR CONVERTIBLE SUBORDINATED INDENTURE
DATED AS OF
-------------
------------------------------
% CONVERTIBLE SUBORDINATED DEBENTURES DUE
---------------------, --------
============-===================================================================
<PAGE> 2
AMERICAN CLASSIC VOYAGES
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE
TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
Section 310 (a)(1) ........................................... 6.9
(a)(2)............................................. 6.9
(a)(3)............................................. Not Applicable
(a)(4) ........................................... Not Applicable
(b)................................................ 6.8; 6.10
Section 311 (a)................................................ 6.13
(b)................................................ 6.13
Section 312 (a)................................................ 7.1; 7.2
(b)................................................ 7.2
(c)................................................ 7.2
Section 313 (a)................................................ 7.3
(b)................................................ 7.3
(c)................................................ 7.3
(d)................................................ 7.3
Section 314 (a)................................................ 7.4
(a)(4)............................................. 1.4; 10.4
(b)................................................ Not Applicable
(c)(1)............................................. 1.1
(c)(2)............................................. 1.1; 1.2
(c)(3)............................................. Not Applicable
(d)................................................ Not Applicable
(e)................................................ 1.2
Section 315 (a)................................................ 6.1
(b)................................................ 6.2
(c)................................................ 6.1
(d)................................................ 6.1
(e)................................................ 5.14
Section 316 (a)................................................ 1.1
(a)(1)(A).......................................... 5.2; 5.12
(a)(1)(B).......................................... 5.13
(a)(2)............................................. Not Applicable
(b)................................................ 5.8
(c)................................................ 1.4
Section 317 (a)(1)............................................. 5.3
(a)(2)............................................. 5.4
(b)................................................ 10.3
Section 318 (a)................................................ 1.7
- --------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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ARTICLE I
<S> <C>
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..................................................1
SECTION 1.1 Definitions..............................................................................1
SECTION 1.2 Compliance Certificates and Opinions....................................................12
SECTION 1.3 Form of Documents Delivered to Trustee..................................................13
SECTION 1.4 Acts of Holders; Record Dates...........................................................14
SECTION 1.5 Notices, Etc., to Trustee and Company...................................................15
SECTION 1.6 Notice to Holders; Waiver...............................................................15
SECTION 1.7 Conflict with Trust Indenture Act.......................................................16
SECTION 1.8 Effect of Headings and Table of Contents................................................16
SECTION 1.9 Successors and Assigns..................................................................16
SECTION 1.10 Separability Clause.....................................................................16
SECTION 1.11 Benefits of Indenture...........................................................................16
SECTION 1.12 Governing Law...........................................................................16
SECTION 1.13 Legal Holidays..........................................................................17
SECTION 1.14 Language of Notices, Etc................................................................17
SECTION 1.15 Incorporators, Stockholders, Officers and Directors of the
Company Exempt from Individual Liability...............................................17
ARTICLE II
DEBENTURE FORMS.........................................................................................17
SECTION 2.1 Form of Debenture.......................................................................17
ARTICLE III
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES.........................................................18
SECTION 3.1 Designation, Title and Terms............................................................18
SECTION 3.2 Denominations...........................................................................18
SECTION 3.3 Execution, Authentication, Delivery and Dating..........................................19
SECTION 3.4 Temporary Debentures....................................................................19
SECTION 3.5 Registration, Registration of Transfer and Exchange.....................................20
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debentures........................................22
SECTION 3.7 Payment of Interest; Interest Rights Preserved..........................................23
SECTION 3.8 Persons Deemed Owners...................................................................24
SECTION 3.9 Cancellation............................................................................25
SECTION 3.10 Computation of Interest.................................................................25
SECTION 3.11 CUSIP Numbers...........................................................................25
SECTION 3.12 Extension of Interest Payment Period....................................................26
SECTION 3.13 Additional Sums.........................................................................26
ARTICLE IV
SATISFACTION AND DISCHARGE..............................................................................26
SECTION 4.1 Satisfaction and Discharge of Indenture.................................................26
SECTION 4.2 Application of Trust Money..............................................................28
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE V REMEDIES............................................................................................28
SECTION 5.1 Events of Default.......................................................................28
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment......................................29
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.........................30
SECTION 5.4 Trustee May File Proofs of Claim........................................................31
SECTION 5.5 Trustee May Enforce Claims Without Possession of Debentures.............................31
SECTION 5.6 Application of Money Collected..........................................................32
SECTION 5.7 Limitation on Suits.....................................................................32
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium and
Interest...............................................................................33
SECTION 5.9 Restoration of Rights and Remedies......................................................33
SECTION 5.10 Rights and Remedies Cumulative..........................................................33
SECTION 5.11 Delay or Omission Not Waiver............................................................33
SECTION 5.12 Control by Holders......................................................................34
SECTION 5.13 Waiver of Past Defaults.................................................................34
SECTION 5.14 Undertaking for Costs...................................................................35
SECTION 5.15 Waiver of Usury, Stay or Extension Laws.................................................35
ARTICLE VI THE TRUSTEE.........................................................................................35
SECTION 6.1 Certain Duties and Responsibilities.....................................................35
SECTION 6.2 Notice of Defaults......................................................................36
SECTION 6.3 Certain Rights of Trustee...............................................................36
SECTION 6.4 Not Responsible for Recitals or Issuance of Debentures..................................37
SECTION 6.5 May Hold Debentures.....................................................................37
SECTION 6.6 Money Held in Trust.....................................................................38
SECTION 6.7 Compensation and Reimbursement..........................................................38
SECTION 6.8 Disqualification; Conflicting Interests.................................................39
SECTION 6.9 Corporate Trustee Required; Eligibility.................................................39
SECTION 6.10 Resignation and Removal; Appointment of Successor.......................................39
SECTION 6.11 Acceptance of Appointment by Successor..................................................40
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business.............................41
SECTION 6.13 Preferential Collection of Claims Against Company.......................................41
SECTION 6.14 Appointment of Authenticating Agent.....................................................42
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY...................................................44
SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders...............................44
SECTION 7.2 Preservation of Information; Communications to Holders..................................44
SECTION 7.3 Reports by Trustee......................................................................44
SECTION 7.4 Reports by Company......................................................................45
ARTICLE VIII.....................................................................................................45
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.............................................................45
SECTION 8.1 Company May Consolidate, Etc, Only on Certain Terms.....................................45
</TABLE>
<PAGE> 5
<TABLE>
<S> <C>
SECTION 8.2 ........................................................................................46
Successor Substituted...................................................................................46
ARTICLE IX SUPPLEMENTAL INDENTURES ...........................................................................46
SECTION 9.1 Supplemental Indentures Without Consent of Holders......................................46
SECTION 9.2 Supplemental Indentures with Consent of Holders.........................................47
SECTION 9.3 Execution of Supplemental Indentures....................................................48
SECTION 9.4 Effect of Supplemental Indentures.......................................................48
SECTION 9.5 Conformity with Trust Indenture Act.....................................................48
SECTION 9.6 Reference in Debentures to Supplemental Indentures......................................48
ARTICLE X COVENANTS .........................................................................................49
SECTION 10.1 Payment of Principal, Premium and Interest..............................................49
SECTION 10.2 Maintenance of Office or Agency................................................49
SECTION 10.3 Money for Debentures Payments to Be Held in Trust.......................................49
SECTION 10.4 Statement by Officers as to Default.....................................................51
SECTION 10.5 Existence...............................................................................51
SECTION 10.6 Waiver of Certain Covenants.............................................................51
SECTION 10.7 Limitation of Transactions..............................................................51
SECTION 10.8 Covenants As To Trust...................................................................52
SECTION 10.9 Certain Conversions Deemed Payment......................................................53
ARTICLE XI REDEMPTION OF SECURITIES...........................................................................53
SECTION 11.1 Election to Redeem; Notice to Trustee...................................................53
SECTION 11.2 Selection by Trustee of Debentures to Be Redeemed.......................................53
SECTION 11.3 Notice of Redemption....................................................................54
SECTION 11.4 Deposit of Redemption Price.............................................................54
SECTION 11.5 Debentures Payable on Redemption Date...................................................55
SECTION 11.6 Debentures Redeemed in Part.............................................................55
SECTION 11.7 Optional Redemption....................................................................55
SECTION 11.8 Redemption upon Occurrence of Trust Tax Event...........................................56
SECTION 11.9 Exchange of Trust Securities for Debentures.............................................56
SECTION 11.10 Interest on Converted Debentures........................................................57
ARTICLE XII CONVERSION OF DEBENTURES...........................................................................57
SECTION 12.1 Conversion Rights.......................................................................57
SECTION 12.2 Conversion Procedures...................................................................58
SECTION 12.3 Expiration of Conversion Rights.........................................................59
SECTION 12.4 Conversion Price Adjustments............................................................60
SECTION 12.5 Fundamental Change......................................................................64
SECTION 12.6 Notice of Adjustments of Conversion Price...............................................65
SECTION 12.7 Prior Notice of Certain Events..........................................................66
SECTION 12.8 Dividend Reinvestment and Other Plans...................................................67
SECTION 12.9 Certain Additional Rights...............................................................67
SECTION 12.10 Reservation of Common Stock; Taxes......................................................68
</TABLE>
<PAGE> 6
<TABLE>
<S> <C>
SECTION 12.11 Trustee Not Responsible for Determining Conversion Price
or Adjustments.........................................................................69
ARTICLE XIII ....................................................................................................69
SUBORDINATION OF DEBENTURES.............................................................................69
SECTION 13.1 Agreement to Subordinate................................................................69
SECTION 13.2 Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Debentures..............................................................69
SECTION 13.3 No Payment on Debentures in Event of Default on Senior Debt.............................71
SECTION 13.4 Payments on Debentures Permitted........................................................71
SECTION 13.5 Authorization of Holders of Debentures to Trustee to Effect.............................72
SECTION 13.6 Notices to Trustee......................................................................72
SECTION 13.7 Trustee as Holder of Senior Debt........................................................73
SECTION 13.8 Modification of Terms of Senior Debt....................................................73
</TABLE>
<PAGE> 7
JUNIOR CONVERTIBLE SUBORDINATED INDENTURE dated as of ________, ____,
between AMERICAN CLASSIC VOYAGES CO., a corporation duly organized and existing
under the laws of Delaware (the "Company"), having its principal office at Two
North Riverside Plaza, Chicago, Illinois 60606, and THE BANK OF NEW YORK, a New
York banking corporation, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its % Convertible Subordinated
Debentures (the "Debentures") of substantially the tenor hereinafter provided
which evidence loans made to the Company of the proceeds from the issuance by
AMCV Capital Trust I, a Delaware business trust (the "Trust"), of preferred
trust interests in the Trust (the "Preferred Securities") and common interests
in the Trust (the "Common Securities"), and to provide the terms and conditions
upon which the Debentures are to be authenticated, issued and delivered.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
that are required to be a part of this Indenture and, to the extent applicable,
shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Debentures by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Debentures, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly, or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and,
<PAGE> 8
except as otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted in the
United States at the date of such computation;
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(e) the words "Article" and "Section" refer to an Article and
Section, respectively, of this Indenture.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Additional Interest" means the interest, if any, that shall accrue on
any interest on the Debentures that is in arrears for one or more quarterly
interest payment periods or not paid during any Extension Period, which in
either case shall accrue at the stated rate per annum specified or determined as
specified in such Debenture and compounded quarterly.
"Additional Sums" means, with respect to the Trust Securities, the
additional amounts as may be necessary in order that the amount of Distributions
then due and payable by the Trust on the outstanding Trust Preferred Securities
and Trust Common Securities shall not be reduced as a result of any additional
taxes, duties and governmental charges to which the Trust has become subject.
"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" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Price" means (i) in the case of a Non-Stock Fundamental
Change in which the holders of the Common Stock receive only cash, the amount of
cash received by the holder of one share of Common Stock and (ii) in the event
of any other Non-Stock Fundamental Change or any Stock Fundamental Change, the
average of the Closing Prices for the Common Stock during the 10 Trading Days
prior to and including the record date for the determination of the holders of
Common Stock entitled to receive such securities, cash, or other property in
connection with such Non-Stock Fundamental Change or Stock Fundamental Change
or, if there is no such record date, the date upon which the holders of the
Common Stock shall have the right to receive such securities, cash, or other
property (such record date or distribution date being referred to as the
"Entitlement Date"), in each case as adjusted in good faith by the Company to
appropriately reflect any of the events referred to in Section 12.4.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Debentures.
<PAGE> 9
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place.
"Bankruptcy Law," means Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the board of directors of the Company, or
the executive or any other committee of that board duly authorized to act in
respect thereof.
"Board Resolution" means a copy of a resolution certified by the
Corporate Secretary or an Assistant Secretary of the Company, the principal
financial officer of the Company or any other authorized officer of the Company
or a person duly authorized by any of them, to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or other
location, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment or other
location are authorized or obligated by law, executive order or regulation to
close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents (however designated)
of such Person's capital stock, and any rights (other than debt securities
convertible into capital stock), warrants or options exchangeable for or
convertible into such capital stock.
"Change in 1940 Act Law" means, as a result of the occurrence on or
after the date of the original issuance of the Trust Preferred Securities of a
change in law or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority, the Trust is or will be considered an "investment company" which is
required to be registered under the 1940 Act.
"Closing Price" means, with respect to any shares of Capital Stock, on
any day the reported last sale price on such day or, in case no sale takes place
on such day, the average of the reported closing bid and asked prices in each
case on the New York Stock Exchange Composite Tape or, if the Capital Stock is
not then traded on the New York Stock Exchange, on the principal national
securities exchange or quotation system on which such Capital Stock is listed or
admitted to trading or quoted or, if not listed or admitted to trading on any
national securities exchange or quotation system, the average of the closing bid
and asked prices of such Capital Stock in the over-the-counter market on the day
in question as reported by the National Quotation Bureau Incorporated, or a
similar generally accepted reporting service, or, if not so available in such
manner, as furnished by the National Association of Securities Dealers member
firm selected from time to time by the Board of Directors for that purpose or,
if not so available in
<PAGE> 10
such manner, as otherwise determined in good faith by the Board of Directors.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" includes any stock of any class of Capital Stock of any
Person which has no preference in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution or winding-up
of such Person and which is not subject to redemption by such Person. However,
subject to the provisions of Section 12.4, shares issuable on conversion of
Debentures shall include only shares of the class designated as Common Stock of
the Company at the date of this instrument or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which have
no preference in respect of the payment of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution or winding-up
of the Company and which are not subject to redemption by the Company; provided,
that if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, any of its Vice Presidents or any other
authorized officer of the Company or a person duly authorized by any of them,
and delivered to the Trustee.
"Conversion Agent" has the meaning specified in Section 12.2(a).
"Conversion Date" has the meaning specified in Section 12.2(a).
"Conversion Expiration Date" has the meaning specified in Section 12.3.
"Conversion Price" has the meaning specified in Section 12.1.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which at the date hereof is ____________________, New York, New
York _______.
"Corporation" includes corporations, associations, partnerships,
limited liability companies, joint-stock companies and business trusts.
<PAGE> 11
"Current Market Price" means the average of the last reported sale
price, regular way, for the 10 Trading Days (as defined herein) ending on the
date of determination, or, if no sale takes place on any such day, the average
of the reported closing bid and asked prices on such day(s), regular way, in
either case as reported on New York Stock Exchange Composite Tape, or, if such
Common Stock is not listed or admitted to trading on New York Stock Exchange
Composite Tape on any such day, on the principal national securities exchange or
quotation system on which such Common Stock is listed or admitted to trading,
or, if not listed or admitted to trading or quoted on any national securities
exchange or quotation system, the average closing bid and asked prices of such
Common Stock in the over-the-counter market for the 10 Trading Days in question
as reported by the National Quotation Bureau Incorporated, or a similar
generally accepted reporting service, or, if not so available in such manner, as
furnished by any member firm of the National Association of Securities Dealers,
Inc. selected from time to time by the Board of Directors of the Company for
that purpose or, if not so available in such manner, as otherwise determined in
good faith by the Board of Directors of the Company. As used herein, the term
"Trading Day" shall mean a day on which the principal national securities
exchange on which the Common Stock is listed or admitted to trading is open for
the transaction of business or, if the Common Stock is not listed or admitted to
trading on any national securities exchange, a Business Day.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Debentures" means the Company's _____% Subordinated Convertible
Debentures due ______.
"Debt" means any obligation created or assumed by any Person for the
repayment of money borrowed and any purchase money obligation created or assumed
by such Person.
"Declaration" means the Amended and Restated Declaration of Trust of
the Trust, dated as of ______________, as the same may be modified, amended or
supplemented in accordance with the applicable provisions thereof, including all
exhibits thereto, including, for all purposes of the Declaration, any such
modification, amendment or supplement, and the provisions of the Trust Indenture
Act that are deemed to be a part of and govern the Declaration.
"Default" means, with respect to the Debentures, any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Debentures .
"Defaulted Interest" has the meaning specified in Section 3.7.
"Definitive Debenture" means a Debenture other than a Global Debenture
or a temporary Debenture.
"Depositary" means, with respect to Debentures issuable in whole or in
part in the form of one or more Global Debentures, a clearing agency registered
under the Exchange Act that is designated to act as Depositary for such
Debentures, until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter shall mean or
<PAGE> 12
include each Person which is then a Depositary hereunder, and if at any time
there is more than one such Person, shall be a collective reference to such
Persons.
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Entitlement Date" has the meaning specified in the definition of
"Applicable Price."
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"Expiration Time" has the meaning set forth in Section 12.4.
"Extension Period" has the meaning set forth in the form of Debenture
attached as Exhibit A hereto.
"Fundamental Change" means the occurrence of any Transaction or event
in connection with a plan pursuant to which all or substantially all of the
Common Stock shall be exchanged for, converted into, acquired for, or constitute
solely the right to receive securities, cash, or other property (whether by
means of an exchange offer, liquidation, tender offer, consolidation, merger,
continuance, combination, reclassification, recapitalization, holding Company
reorganization pursuant to Section 251(g) of the Delaware General Corporation
Law or otherwise), provided that, in the case of a plan involving more than one
such Transaction or event, for purposes of adjustment of the Conversion Price,
such Fundamental Change shall be deemed to have occurred when substantially all
of the Common Stock shall be exchanged for, converted into, or acquired for or
constitute solely the right to receive securities, cash, or other property, but
the adjustment shall be based upon the consideration that a holder of Common
Stock received in such Transaction or event as a result of which more than 50%
of the Common Stock shall have been exchanged for, converted into, or acquired
for or constitute solely the right to receive securities, cash, or other
property.
"Global Debenture" means a Debenture in global form that evidences all
or part of the Debentures and is authenticated and delivered to, and registered
in the name of, the Depositary for such Debentures or a nominee thereof.
"Holder" means a Person in whose name a Debenture is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
<PAGE> 13
"Interest Payment Date", when used with respect to any Debenture, means
the Stated Maturity of an installment of interest on such Debenture.
"Lien" means any mortgage, pledge, security interest, charge, lien or
other encumbrance of any kind, whether or not filed, recorded or perfected under
applicable law.
"Liquidation Amount" means an amount with respect to the assets of the
Trust equal to $__ per Trust Security.
"Maturity", when used with respect to any Debenture, means the date on
which the principal of such Debenture or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"1940 Act" means the Investment Company Act of 1940, as amended from
time to time, or any successor legislation.
"Non-Stock Fundamental Change" means any Fundamental Change other than
a Stock Fundamental Change.
"Notice of Conversion" means the notice given (i) by a Holder of
Debentures to the Conversion Agent directing the Conversion Agent to convert
such Debentures into Common Stock on behalf of such Holder or (ii) by a holder
of Trust Preferred Securities to the Conversion Agent under the Declaration
directing such Conversion Agent to exchange such Trust Preferred Securities for
Debentures and to convert such Debentures into Common Stock on behalf of such
holder.
"Notice of Default" means a written notice of the kind specified in
Section 5.1(c).
"Officer's Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President, any Vice President or any
other authorized officer of the Company or a person duly authorized by any of
them, and delivered to the Trustee. The officer signing an Officer's Certificate
given pursuant to Section 10.4 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion of legal counsel, who may
be an employee of or counsel for the Company and who shall be reasonably
acceptable to the Trustee.
"Outstanding", when used with respect to Debentures, means, as of the
date of determination, all Debentures theretofore authenticated and delivered
under this Indenture, except:
(a) Debentures theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
<PAGE> 14
(b) Debentures for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Debentures; provided, however, that, if such Debentures are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(c) Debentures which have been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Debentures have been authenticated and
delivered pursuant to this Indenture, other than any such Debentures in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Debentures are held by a bona fide purchaser in whose hands such
Debentures are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Debentures have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debentures owned
by the Company or any other obligor upon the Debentures or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Debentures which the Trustee knows to be so owned shall
be so disregarded. Debentures so owned as described in the preceding sentence
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Debentures and that the pledgee is not the Company or
any other obligor upon the Debentures or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on the Debentures on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust, other
entity, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Debentures, means the
office or agency of the Company in The City of New York and such other place or
places where, subject to the provisions of Section 10.2, the principal of and
any premium and interest on the Debentures are payable.
"Predecessor Debenture" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 3.6 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Debenture
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Debenture.
"Property Trustee" means the property trustee of the Trust appointed
pursuant to Section 6.3 of the Declaration.
<PAGE> 15
"Purchased Shares" has the meaning specified in Section 12.4(e).
"Purchaser Stock Price" means, with respect to any Stock Fundamental
Change the average of the Closing Prices for the Common Stock received in such
Stock Fundamental Change for the 10 consecutive Trading Days prior to and
including the Entitlement Date, as adjusted in good faith by the Company to
appropriately reflect any of the events referred to in Section 12.4.
"Redemption Date", when used with respect to any Debenture to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Debenture to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Date" has the meaning specified in Section 12.4.
"Reference Market Price" initially means $_____ (which is an amount
equal to ______% of the last reported sale price for the Common Stock on The
Nasdaq National Market on ______________), and in the event of any adjustment of
the Conversion Price other than as a result of a Non-Stock Fundamental Change,
the Reference Market Price shall also be adjusted so that the ratio of the
Reference Market Price to the Conversion Price after giving effect to any such
adjustment shall always be the same as the ratio of the initial Reference Market
Price to the initial Conversion Price of the Debentures.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Debentures means ________________.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Senior Debt" means any Debt of the Company, except for such Debt that
is by its terms subordinated to or pari passu with the Debentures.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Debenture or any
installment of principal thereof or interest thereon, means the date specified
in such Debenture as the fixed date on which the principal of such Debenture or
such installment of principal or interest is due and payable.
"Stock Fundamental Change" means either (i) any Fundamental Change that
is a holding company reorganization (whether effected in accordance with Section
251(g) of the Delaware General Corporation Law or otherwise) provided that
immediately after such Fundamental Change the Common Stock of the holding
company in such Transaction is admitted for listing on a national securities
exchange or for quotation on the Nasdaq National Market or (ii) any
<PAGE> 16
Fundamental Change in which more than 50% of the value (as determined in good
faith by the Board of Directors in a Board Resolution) of the consideration
received by holders of Common Stock consists of Common Stock that for each of
the 10 consecutive Trading Days prior to the Entitlement Date has been admitted
for listing or admitted for listing subject to notice of issuance on a national
securities exchange or quoted on the Nasdaq National Market; provided, however,
that a Fundamental Change that is not a holding company reorganization described
in clause (i) above shall not be a Stock Fundamental Change if either (a) the
Company continues to exist after the occurrence of such Fundamental Change and
the outstanding Trust Preferred Securities continue to exist as outstanding
Trust Preferred Securities or (b) not later than the occurrence of such
Fundamental Change, the outstanding Trust Preferred Securities are converted
into or exchanged for shares of convertible Preferred Stock of an entity
succeeding to the business of the Company or a subsidiary thereof, which
convertible Preferred Stock has powers, preferences, and relative,
participating, optional, or other rights, and qualifications, limitations, and
restrictions, substantially similar to those of the Trust Preferred Securities.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Tax Action" means (a) an amendment to, change in or announced proposed
change in the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, (b) a judicial
decision interpreting, applying or clarifying such laws or regulations, (c) an
administrative pronouncement or action that represents an official position
(including a clarification of an official position) of the governmental
authority or regulatory body making such administrative pronouncement or taking
such action, or (d) a threatened challenge asserted in connection with an audit
of the Company or any of its subsidiaries, or the Trust, or a threatened
challenge asserted in writing against any other taxpayer that has raised capital
through the issuance of securities that are substantially similar to the
Debentures, or the Trust Preferred Securities, which amendment or change is
adopted or which decision, pronouncement or proposed change is announced or
which action, clarification or challenge occurs on or after the date of the
prospectus related to the issuance of the Trust Preferred Securities.
"Trading Day" means a Monday, Tuesday, Wednesday, Thursday and Friday,
other than any day on which securities are not traded on the applicable
securities exchange in the applicable securities market.
"Transaction" has the meaning specified in Section 12.5.
"Trust" means AMCV Capital Trust I, a Delaware business trust and an
Affiliate of the Company and any successor to such trust in accordance with the
Declaration.
"Trust Common Security" means the common securities representing
undivided subordinated beneficial ownership interests in the assets of the Trust
with a Liquidation Amount
<PAGE> 17
of $__ per Trust Common Security, issued by the Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as otherwise
provided in Section 9.5, provided, however, that if the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Investment Company Event" means that the Company shall have
requested and received and shall have delivered to the Property Trustee an
Opinion of Counsel (as defined in the Declaration) from a firm having a national
tax and securities practice and that is experienced in 1940 Act matters (which
Opinion of Counsel shall not have been rescinded by such law firm) to the effect
that as a result of a Change in 1940 Act Law, there is more than an
insubstantial risk that the Trust is or, within 90 days after such date, will be
considered an "investment company" which is required to be registered under the
1940 Act.
"Trust Preferred Securities" means the preferred undivided beneficial
ownership interests in the assets of the Trust with a Liquidation Amount of $__
per Trust Preferred Security, issued by the Trust.
"Trust Securities" means the Trust Common Securities and the Trust
Preferred Securities.
"Trust Special Event" means a Trust Tax Event or a Trust Investment
Company Event.
"Trust Tax Event" means that the Company shall have requested and
received and shall have delivered to the Property Trustee an Opinion of Counsel
(as defined in the Declaration) from a firm having a national tax and securities
practice (which Opinion of Counsel shall not have been rescinded by such law
firm) that there has been a Tax Action which relates to any of the items
described in (i) through (iii) below, and that there is more than an
insubstantial risk that (i) the Trust is or, within 90 days after such date,
will be subject to United States federal income tax with respect to income
accrued or received on the Debentures, (ii) the Trust is or, within 90 days
after such date, will be subject to more than a de minimis amount of other
taxes, duties, assessments or other governmental charges or (iii) interest
payable by the Company on the Debentures is not or, within 90 days after such
date, will not be deductible by the Company for United States federal income tax
purposes.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by
<PAGE> 18
the United States, each of which are not callable or redeemable at the option of
the issuer thereof.
"Underwriters" with respect to the Trust Preferred Securities, means
- --------------------------------------------------------------------------------
"Underwriting Agreement" means the underwriting agreement dated as of
___________ between the Company and the Underwriters.
"Vice President", when used with respect to the Company or Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 1.2 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates or opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officer's Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 10.4) shall include:
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
<PAGE> 19
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed (either physically or by means of a facsimile
or an electronic transmission, provided that such electronic transmission is
transmitted through the facilities of a Depositary) by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered (either physically or by means of a facsimile or an electronic
transmission, provided that such electronic transmission is transmitted through
the facilities of a Depositary) to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 3.15 of the
Trust Indenture Act) conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
<PAGE> 20
The ownership, principal amount and serial numbers of Debentures held
by any Person, and the date of commencement of such Person's holding the same,
shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other action to the Holder of any Debenture shall bind every future Holder of
the same Debenture and the Holder of every Debenture issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Debenture.
Without limiting the foregoing, a Holder entitled hereunder to give or
take any action hereunder with regard to any particular Debenture may do so with
regard to all or any part of the principal amount of such Debenture or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any different part of such principal amount.
The Company may set any day as the record date for the purpose of
determining the Holders of Outstanding Debentures entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given or taken by Holders
of Debentures, but the Company shall have no obligation to do so. With regard to
any record date set pursuant to this paragraph, the Holders of Outstanding
Debentures on such record date (or their duly appointed agents), and only such
Persons, shall be entitled to give or take the relevant action, whether or not
such Holders remain Holders after such record date.
SECTION 1.5 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trustee Administration Department, or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at Two North Riverside Plaza, Chicago, Illinois 60606, to the
attention of the Corporate Secretary, or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class
<PAGE> 21
postage prepaid (if international mail, by air mail), to each Holder affected by
such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Any notice mailed to a Holder in the
manner herein prescribed shall be conclusively deemed to have been received by
such Holder, whether or not such Holder actually receives such notice.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.7 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or excluded, as the case may be.
SECTION 1.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10 Separability Clause.
In case any provision in this Indenture or in the Debentures shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Debentures, express or implied,
shall give to any
<PAGE> 22
Person, other than the parties hereto and their successors hereunder, and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 1.12 Governing Law.
This Indenture and the Debentures shall be governed by and construed in
accordance with the law of the State of New York.
SECTION 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Debenture shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Debentures
(other than a provision of the Debentures which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
SECTION 1.14 Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent, waiver
or Act required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 1.15 Incorporators, Stockholders, Officers and Directors of the
Company Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of or
contained in this Indenture or in the Debentures, or for any claim based thereon
or otherwise in respect thereof, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or any successor
Person, either directly or through the Company or any successor Person, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that all
such liability is hereby expressly waived and released as a condition of, and as
a part of the consideration for, the execution of this Indenture and the issue
of the Debentures.
ARTICLE II
DEBENTURE FORMS
SECTION 2.1 Form of Debenture.
<PAGE> 23
The Debentures, with the form of the Trustee's Certificate of
Authentication to be endorsed thereon, shall be substantially in the form of
Exhibit A to this Indenture.
ARTICLE III
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 3.1 Designation, Title and Terms.
There is hereby authorized the debt securities designated the " %
Convertible Subordinated Debentures due ," limited in aggregate principal amount
to (a) $ plus (b) such aggregate principal amount (which may not exceed $
principal amount) of additional Debentures as shall be purchased by the
Underwriters on the Option Closing Date pursuant to the Underwriting Agreement,
which amount shall be as set forth in any written order of the Company for the
authentication and delivery of Debentures pursuant to Section 3.3. All of the
Debentures issued pursuant to this Indenture shall be deemed to have been issued
as of, and shall begin to accrue interest as specified herein from, the Closing
Date (as such term is defined in the Underwriting Agreement). The Debentures
will mature on and bear interest at a rate of % per annum from , or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, payable quarterly in arrears on , , and of each year, commencing ,
. The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name the Debenture (or one or more Predecessor Debentures) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the fifteenth day of the month of such Interest Payment
Date (that is, each , , and ).
Principal of, and premium, if any, and interest on the Debentures will
be payable, Debentures may be presented for conversion and transfers of the
Debentures will be registrable at the office or agency of the Company in the
Borough of Manhattan, The City of New York, and transfers of the Debentures will
also be registrable at such other office or agency of the Company as may be
maintained for such purpose. In addition, payment of interest may be made, at
the option of the Company, by (i) check mailed to the address of the Person
entitled thereto as shown on the Security Register or (ii) by wire transfer in
immediately available funds at such place and to such account as may be
designated to the Paying Agent by the Person entitled thereto as specified in
the Security Register no later than the applicable Record Date.
The Debentures will be redeemable as provided in Article XI.
The Debentures will be convertible as provided in Article XII.
The Debentures will be subject to repurchase by the Company, at the
option of the Holders, as provided in the form of Debenture attached as Exhibit
A.
SECTION 3.2 Denominations.
The Debentures will be issued only in registered form without coupons
and only in
<PAGE> 24
denominations of $ and any integral multiple thereof.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
The Debentures shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its Chief Financial Officer,
its President or any Vice President and need not be attested. The signature of
any of these officers on the Debentures may be manual or facsimile.
Debentures bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Debentures or did not
hold such offices at the date of such Debentures. Upon the execution and
delivery of this Indenture, or from time to time thereafter, Debentures may be
executed by the Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said Debentures to or upon
Company Order without any further action by the Company. Debentures may be
authenticated on original issuance from time to time and delivered pursuant to
such procedures acceptable to the Trustee ("Procedures") as may be specified
from time to time by Company Order. Procedures may authorize authentication and
delivery pursuant to instructions of the Company or a duly authorized agent,
which instructions shall be promptly confirmed in writing.
Each Debenture shall be dated the date of its authentication.
No Debenture shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Debenture a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Debenture shall be conclusive evidence, and the only
evidence, that such Debenture has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Debenture shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debenture to the Trustee for cancellation as
provided in Section 3.9 for all purposes of this Indenture such Debenture shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
SECTION 3.4 Temporary Debentures.
Pending the preparation of Definitive Debentures, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Debentures which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the Definitive Debentures in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Debentures may determine, as evidenced by their
execution of such Debentures.
<PAGE> 25
If temporary Debentures are issued, the Company will cause Definitive
Debentures to be prepared without unreasonable delay. After the preparation of
Definitive Debentures, the temporary Debentures shall be exchangeable for
Definitive Debentures upon surrender of the temporary Debentures at the office
or agency of the Company maintained pursuant to Section 10.2 for the purpose of
exchanges of Debentures, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Debentures the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more
Definitive Debentures, of any authorized denominations and of a like aggregate
principal amount and tenor. Until so exchanged the temporary Debentures shall in
all respects be entitled to the same benefits under this Indenture as Definitive
Debentures of such tenor.
SECTION 3.5 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency of the
Company in The City of New York a register (the register maintained in such
office or in any other office or agency of the Company in a Place of Payment
being herein sometimes referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Debentures and of transfer of Debentures. The Trustee is
hereby appointed as the initial "Security Registrar" for the purpose of
registering Debentures and transfers of Debentures as herein provided and its
corporate trust office which, at the date hereof, is located at
____________________, New York, New York _____ as the initial office or agency
in The City of New York where the Security Register will be maintained. The
Company may at any time replace such Security Registrar, change such office or
agency or act as its own Security Registrar. The Company will give prompt
written notice to the Trustee of any change of the Security Registrar or of the
location of such office or agency.
Upon surrender for registration of transfer of any Debenture at the
office or agency of the Company maintained pursuant to Section 10.2 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Debentures, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Debentures (except a Global Debenture) may
be exchanged for other Debentures, of any authorized denominations and of a like
aggregate principal amount and tenor, upon surrender of the Debentures to be
exchanged at such office or agency. Whenever any Debentures are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Debentures which the Holder making the exchange is entitled to
receive.
All Debentures issued upon any registration of transfer or exchange of
Debentures shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Debentures
surrendered upon such registration of transfer or exchange.
Every Debenture presented or surrendered for registration of transfer
or for exchange shall
<PAGE> 26
(if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Debentures, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Debentures, other than
exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (1) to issue, register the transfer
of or exchange Debentures during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Debentures
selected for redemption under Section 11.3 and ending at the close of business
on the day of such mailing, or (2) to register the transfer of or exchange any
Debenture so selected for redemption in whole or in part, except the unredeemed
portion of any Debenture being redeemed in part.
Each Global Debenture authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Debenture or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Debenture shall constitute a single
Debenture for all purposes of this Indenture.
Any exchange of a Global Debenture for other Debentures may be made in
whole or in part, and all Debentures issued in exchange for a Global Debenture
or any portion thereof shall be registered in such names as the Depositary for
such Global Debenture shall direct.
If at any time the Depositary for the Debentures notifies the Company
that it is unwilling or unable to continue as Depositary for the Debentures or
if at any time the Depositary for the Debentures shall no longer be qualified to
serve as the Depositary, the Company shall appoint a successor Depositary with
respect to the Debentures. If a successor Depositary for the Debentures is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Debentures, will authenticate and deliver Debentures of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Debenture or Debentures in exchange for such
Global Debenture or Debentures.
The Company may at any time and in its sole discretion determine that
Debentures issued in the form of one or more Global Debentures shall no longer
be represented by such Global Debentures. In such event, the Company will
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Debentures, will authenticate and deliver Debentures
of like tenor and terms in definitive form in an aggregate principal amount
equal to the principal amount of the Global Debenture or Debentures in exchange
for such Global Debenture or Debentures.
<PAGE> 27
Notwithstanding any other provision in this Indenture, no Global Debenture may
be transferred to, or registered or exchanged for Debentures registered in the
name of, any Person other than the Depositary for such Global Debenture or any
nominee thereof, and no such transfer may be registered, unless (1) such
Depositary (A) notifies the Company that it is unwilling or unable to continue
as Depositary for such Global Debenture or (B) ceases to be qualified to serve
as Depositary, (2) the Company executes and delivers to the Trustee a Company
Order that such Global Debenture shall be so transferable, registrable and
exchangeable, and such transfers shall be registrable, or (3) there shall have
occurred and be continuing an Event of Default. Notwithstanding any other
provision in this Indenture, a Global Debenture to which the restriction set
forth in the preceding sentence shall have ceased to apply may be transferred
only to, and may be registered and exchanged for Debentures registered only in
the name or names of, such Person or Persons as the Depositary for such Global
Debenture shall have directed and no transfer thereof other than such a transfer
may be registered.
Every Debenture authenticated and delivered upon registration of
transfer, or in exchange for or in lieu, of a Global Debenture to which the
restriction set forth in the first sentence of the preceding paragraph shall
apply, whether pursuant to this Section, Sections 3.4, 3.6 or otherwise, shall
be authenticated and delivered in the form of, and shall be, a Global Debenture
unless such Debenture is registered in the name of a Person other than the
Depositary for such Global Debenture or a nominee thereof.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debentures.
If any mutilated Debenture is surrendered to the Trustee, together
with, in proper cases, such security or indemnity as may be required by the
Company or the Trustee to save each of them and any agent of either of them
harmless, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Debenture and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Debenture and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Debenture has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Debenture, a new
Debenture of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debenture has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debenture, pay such Debenture.
Upon the issuance of any new Debenture under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
<PAGE> 28
Every new Debenture issued pursuant to this Section in exchange for any
mutilated Debenture or in lieu of any destroyed, lost or stolen Debenture shall
constitute an original additional contractual obligation of the Company, whether
or not the mutilated, destroyed, lost or stolen Debenture shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Debentures duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debentures.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
Interest on any Debenture which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date, shall be paid to the Person in
whose name that Debenture (or one or more Predecessor Debentures) is registered
at the close of business on the Regular Record Date, except that interest
payable on the Stated Maturity of the Debentures shall be paid to the Person to
whom principal is paid.
Any interest on any Debenture which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debentures (or their respective
Predecessor Debentures) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Debenture and the date
of the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Debentures at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
<PAGE> 29
in whose names the Debentures (or their respective Predecessor Debentures) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (b).
(b) The Company may make payment of any Defaulted Interest on
the Debentures in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Debentures may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.5,
each Debenture delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Debenture, shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debenture.
In the case of any Debenture which is converted after any Regular
Record Date and on or prior to the corresponding Interest Payment Date (other
than any such Debenture which shall have been called for redemption on a date
within such period), interest on such Debenture whose Stated Maturity is on such
Interest Payment Date shall be deemed to continue to accrue and shall be payable
on such Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Debenture (or one or more Predecessor Debentures) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Debenture which is converted, interest whose Stated Maturity is after the
date of conversion of such Debenture shall not be payable (although such accrued
and unpaid interest will be deemed paid by the appropriate portion of the Common
Stock received by the holders upon such conversion).
SECTION 3.8 Persons Deemed Owners.
Prior to due presentment of a Debenture for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Debenture is registered as the owner of such
Debenture for the purpose of receiving payment of principal of and any premium
and (subject to Sections 3.5 and 3.7) any interest on such Debenture and for all
other purposes whatsoever, whether or not such Debenture be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
No holder of any beneficial interest in any Global Debenture held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Debenture, and such Depositary may be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as the owner
of such Global Debenture for all purposes whatsoever. None of the Company, the
Trustee nor any agent of the Company or the Trustee will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Global Debenture or for
maintaining, supervising or reviewing any
<PAGE> 30
records relating to such beneficial ownership interests.
SECTION 3.9 Cancellation.
All Debentures surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Debentures previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Debentures previously authenticated
hereunder which the Company has not issued and sold, and all Debentures so
delivered shall be promptly cancelled by the Trustee. No Debentures shall be
authenticated in lieu of or in exchange for any Debentures cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Debentures held by the Trustee shall be disposed of in accordance with its
customary procedures, and the Trustee shall thereafter deliver to the Company a
certificate with respect to such disposition.
SECTION 3.10 Computation of Interest.
Interest on the Debentures shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION 3.11 CUSIP Numbers.
The Company in issuing the Debentures may use "CUSIP" numbers (in
addition to the other identification numbers printed on the Debentures), and, if
so, the Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such "CUSIP" numbers either
as printed on the Debentures or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Debentures, and any such redemption shall not be affected by any defect in
or omission of such "CUSIP" numbers.
SECTION 3.12 Extension of Interest Payment Period.
As long as an Event of Default under Section 5.1 of the Indenture shall
not have occurred and be continuing, the Company shall have the right, at any
time and from time to time during the term of the Debentures, to defer payments
of interest by extending the interest payment period of such Debentures for a
period not exceeding 20 consecutive quarters as provided in the form of
Debenture attached as Exhibit A.
SECTION 3.13 Additional Sums.
In the event that (a) the Property Trustee is the Holder of all of the
Outstanding Debentures, (b) a Trust Tax Event in respect of the Trust shall have
occurred and be continuing and (c) the Company shall not have (i) redeemed or
exchanged all the Debentures pursuant to
<PAGE> 31
Section 11.7 or 11.8, respectively, or (ii) terminated the Trust pursuant to
Section [9.1] of the Declaration, the Company shall pay Additional Sums to the
Trust (and its permitted successors or assigns under the Declaration) for so
long as the Property Trustee (or its permitted successor or assignee) is the
registered holder of the Debentures. Whenever in this Indenture or the
Debentures there is a reference in any context to the payment of principal of or
interest on the Debentures, such mention shall be deemed to include mention of
the payments of the Additional Sums provided for in this paragraph to the extent
that, in such context, Additional Sums are, were or would be payable in respect
thereof pursuant to the provisions of this paragraph and express mention of the
payment of Additional Sums (if applicable) in any provisions hereof shall not be
construed as excluding Additional Sums in those provisions hereof where such
express mention is not made; provided, however, that the extension of an
interest payment period pursuant to Section 3.12 shall not extend the payment of
any Additional Sums that may be due and payable during such interest payment
period.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
with respect to the Debentures (except as to any surviving rights of
registration of transfer or exchange of such Debentures herein expressly
provided for), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to such Debentures, when
(a) either
(i) all such Debentures theretofore authenticated and
delivered (other than (1) such Debentures which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 3.6, and (2) such Debentures for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.3) have been delivered to the
Trustee for cancellation; or
(ii) all such Debentures not theretofore delivered to
the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year, or
(C) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of
<PAGE> 32
redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company in the case of (A), (B) or (C) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount of money in the currency or currency units in which
such Debentures are payable sufficient to pay and discharge the entire
indebtedness on such Debentures not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest to
the date of such deposit (in the case of Debentures which have become
due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(b) the Company has paid or caused to be paid all
other sums payable hereunder by the Company with respect to such
Debentures; and
(c) the Company has delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture with respect to
such Debentures have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to Debentures, (x) the obligations of the Company to the Trustee under
Section 6.7, the obligations of the Trustee to any Authenticating Agent under
Section 6.14 and the right of the Trustee to resign under Section 6.10 shall
survive, and (y) if money shall have been deposited with the Trustee pursuant to
subclause (ii) of Clause (a) of this Section, the obligations of the Company
and/or the Trustee under Sections 4.2, 6.6, 7.1 and 10.2 and the last paragraph
of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Debentures and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.
"Event of Default", wherever used herein with respect to Debentures,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental
<PAGE> 33
body):
(a) default in the payment of any interest upon or any
additional amount payable in respect of any Debentures when it becomes due and
payable, and continuance of such default for a period of 30 days (whether or not
such payment is prohibited by the subordination provisions set forth in Article
XIII hereof or in any indenture supplemental thereto); provided, however, that a
valid extension of an interest payment period by the Company in accordance with
the terms of the Indenture or any indenture supplemental hereto, shall not
constitute a default in the payment of interest for this purpose; or
(b) default in the payment of the principal of (or premium, if
any, on) any Debentures as and when the same shall become due and payable
whether at maturity, upon redemption, by declaration or otherwise, or in any
payment required by any sinking or analogous fund established with respect to
the Debentures (whether or not such payment is prohibited by the subordination
provisions set forth in Article XIII hereof or in any indenture supplemental
hereto); provided, however, that a valid extension of the maturity of the
Debentures in accordance with the terms of this Indenture or any indenture
supplemental hereto shall not constitute a default in the payment of principal
or premium, if any; or
(c) default in the performance, or breach, of any term, covenant
or warranty of the Company in this Indenture, and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding Debentures
a written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(d) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case, (B) consents to the entry of any
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, or (D) makes a general assignment for the benefit of its creditors; or
(e) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that (A) is for relief against the Company in an
involuntary case, (B) appoints a Custodian of the Company or for all or
substantially all of its property, or (C) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect for 90 days; or
(f) failure by the Company to convert the Debentures into shares
of Common Stock as provided in Article XII of this Indenture (whether or not
conversion or exchange is prohibited by the subordination provisions set forth
in Article XIII of the Indenture or in any indenture supplemental thereto),
provided, that Notice of Conversion is delivered in accordance with Section
12.2; or
(g) if, after the original issuance of the Debentures to the
Trust or the Property Trustee in connection with the original issuance of Trust
Securities by the Trust, the Trust shall have voluntarily or involuntarily
dissolved, wound-up its business or otherwise terminated its
<PAGE> 34
existence except in connection with (i) the distribution of the Debentures to
holders of Trust Securities in liquidation of their interests in the Trust, (ii)
the redemption or conversion of all of the outstanding Trust Securities of the
Trust or (iii) certain mergers, consolidations or amalgamations, each as
permitted by the Declaration.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Debentures at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Debentures
may declare the principal amount (or, if any of the Debentures are Original
Issue Discount Debentures, such portion of the principal amount of such
Debentures as may be specified in the terms thereof) of all of the Debentures to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding
Debentures, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue interest on all Debentures;
(ii) the principal of (and premium, if any, on any
Debentures which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Debentures;
(iii) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates prescribed
therefor in such Debentures; and
(iv) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(b) all Events of Default with respect to Debentures, other
than the nonpayment of the principal of Debentures which have become due solely
by such declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
<PAGE> 35
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any
Debenture when such interest becomes due and payable and such default continues
for a period of 30 days (whether or not such payment is prohibited by the
provisions of Article XIII hereof), or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Debenture at the Maturity thereof (whether or not such
payment is prohibited by the provisions of Article XIII hereof), the Company
will, upon demand of the Trustee, pay to it, for the benefit of the Holders of
such Debentures, the whole amount then due and payable on such Debentures for
principal and any premium and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and
premium and on any overdue interest, at the rate or rates prescribed therefor in
such Debentures, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Debentures and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Debentures, wherever
situated.
If an Event of Default with respect to the Debentures occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Debentures by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company or any other
obligor upon the Debentures, their property or their creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding, In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses,
<PAGE> 36
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Debentures or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official be a member of a creditors' or
other similar committee.
SECTION 5.5 Trustee May Enforce Claims Without Possession of Debentures.
All rights of action and claims under this Indenture or the Debentures
may be prosecuted and enforced by the Trustee without the possession of any of
the Debentures or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Debentures in respect of which such
judgment has been recovered.
SECTION 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Debentures and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.7;
SECOND: Subject to Article XIII, to the payment of the amounts then due
and unpaid for principal of and any premium and interest on the Debentures in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Debentures for principal and any premium and interest,
respectively; and
THIRD: The balance, if any, to the Company.
SECTION 5.7 Limitation on Suits.
No Holder of any Debenture shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a
<PAGE> 37
continuing Event of Default with respect to the Debentures;
(b) the Holders of not less than 25% in principal amount
of the Outstanding Debentures shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable Indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Debentures;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Debenture shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Sections 3.5
and 3.7) interest on such Debenture on the respective Stated Maturities
expressed in such Debenture (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debentures in the last paragraph of
Section 3.6, no right or remedy
<PAGE> 38
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Debentures
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12 Control by Holders.
The Holders of a majority in aggregate principal amount of the
Outstanding Debentures shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Debentures; provided, however, that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction; and
(c) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow any such direction if the Trustee in
good faith shall determine that the proceeding so directed would involve the
Trustee in personal liability.
SECTION 5.13 Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of the
Outstanding Debentures may on behalf of the Holders of all the Debentures waive
any past default hereunder and its consequences, except
(a) a continuing default in the payment of the principal of
(or premium, if any) or any interest on any Debentures as and when the same
shall become due by the terms of the Debentures otherwise than by acceleration
(unless such default has been cured and sums sufficient to pay all matured
installments of interest and principal and any premium has been deposited with
the Trustee (in accordance with this Indenture)), which default cannot be waived
without the consent of the Holder(s) of each of the Debentures, and
<PAGE> 39
(b) a default in respect of a covenant or provision hereof
which under Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Debenture affected;
provided, however, that if the Debentures are held by the Trust or a trustee of
such Trust, such waiver or modification to such waiver shall not be effective
until the holders of a majority in Liquidation Amount of Trust Securities of the
Trust (or such higher percentage in Liquidation Amount of Trust Securities as
may be specified in the Declaration) shall have consented to such waiver or
modification to such waiver; provided further, that if the consent of the
Holders of a majority in Liquidation Amount of the Trust Securities of a class
(or such higher percentage in Liquidation Amount of such class of Trust
Securities as may be specified in the Declaration) is required under the
Declaration, such waiver shall not be effective until the Holders of a majority
(or such higher percentage, as the case may be) in Liquidation Amount of the
Trust Securities of such class shall have consented to such waiver.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14 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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, however, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company.
SECTION 5.15 Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
<PAGE> 40
SECTION 6.1 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 6.2 Notice of Defaults.
If a Default occurs and is continuing with respect to the Debentures,
the Trustee shall, within 90 days after it occurs, transmit, in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, notice of
all uncured or unwaived Defaults known to it; provided, however, that, except in
the case of a Default in payment on the Debentures, the Trustee may withhold the
notice if and so long as the board of directors, the executive committee or a
trust committee of its directors and/or its duly authorized officers in good
faith determines that withholding such notice is in the interests of Holders of
Debentures; provided further, however, that, in the case of any default or
breach of the character specified in Section 5.1(c) with respect to the
Debentures, no such notice to Holders shall be given until at least 60 days
after the occurrence thereof.
SECTION 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely on and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Company Request or Company
Order (other than delivery of any Debenture to the Trustee for authentication
and delivery pursuant to Section 3.3, which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall
<PAGE> 41
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee may request that the Company deliver an
Officer's Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officer's Certificate may be signed by any person authorized to
sign an Officer's Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
SECTION 6.4 Not Responsible for Recitals or Issuance of Debentures.
The recitals contained herein and in the Debentures, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. Neither the Trustee nor any Authenticating
Agent makes any representations as to the validity or sufficiency of this
Indenture or of the Debentures. The Trustee or any Authenticating Agent shall
not be accountable for the use or application by the Company of Debentures or
the proceeds thereof.
SECTION 6.5 May Hold Debentures.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Debentures and, subject to Sections
6.8 and 6.13, may otherwise deal with the
<PAGE> 42
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 6.7 Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except
those attributable to its negligence or bad faith.
The obligations of the Company under this Section to compensate the
Trustee and to pay or reimburse the Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder. Such additional
indebtedness shall be secured by a lien prior to that of the Debentures upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Debentures.
Without limiting any rights available to the Trustee under applicable
law, when the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.1(d) or Section 5.1(e), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of
administration under any applicable Bankruptcy Law.
The provisions of this Section shall survive the satisfaction and
discharge of this Indenture.
<PAGE> 43
SECTION 6.8 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.9 Corporate Trustee Required; Eligibility.
There shall at all times be one or more Trustees hereunder with respect
to the Debentures, at least one of which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus required by the Trust Indenture Act. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of a supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 6.10 Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the Debentures by
giving written notice thereof to the Company. If the instrument of acceptance by
a successor Trustee required by Section 6.11 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debentures.
The Trustee may be removed at any time with respect to the Debentures
by Act of the Holders of a majority in principal amount of the Outstanding
Debentures, delivered to the Trustee and to the Company.
If at any time:
(a) the Trustee shall fall to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Debenture for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company or by any
such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a
<PAGE> 44
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (A) the Company may remove the Trustee with
respect to all Debentures, or (B) subject to Section 5.14, any Holder who has
been a bona fide Holder of a Debenture for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Debentures and
the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Debentures, the Company shall promptly appoint a successor Trustee or
Trustees with respect to the Debentures and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Debentures shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Debentures delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee with
respect to the Debentures and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the Debentures
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 6.11, any Holder who has been a
bona fide Holder of a Debenture for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Debentures.
The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Debentures and each appointment of a successor
Trustee with respect to the Debentures to all Holders of Debentures in the
manner provided in Section 1.6. Each notice shall include the name of the
successor Trustee with respect to the Debentures and the address of its
Corporate Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Debentures, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with
<PAGE> 45
respect to the Debentures, the Company, the retiring Trustee and each successor
Trustee with respect to the Debentures shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee and upon the execution and
delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debentures, but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Debentures.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Debentures shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Debentures so authenticated with the same effect
as if such successor Trustee had itself authenticated such Debentures.
SECTION 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Debentures), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 6.14 Appointment of Authenticating Agent.
The Trustee (upon notice to the Company) may appoint an Authenticating
Agent or Agents with respect to the Debentures which shall be authorized to act
on behalf of the Trustee to authenticate Debentures issued upon original issue
(in accordance with procedures acceptable to the Trustee) and upon exchange,
registration of transfer or partial redemption thereof or pursuant
<PAGE> 46
to Section 3.6, and Debentures so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Debentures by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of such Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or such Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Debentures, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
Except with respect to an Authenticating Agent appointed at the request
of the Company, the Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed by the Company for such payments,
subject to the provisions of Section 6.7.
If an appointment with respect to the Debentures is made pursuant to
this Section, the
<PAGE> 47
Debentures may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternative certificate of authentication in the following
form:
This is one of the Debentures referred to in the within-mentioned
Indenture.
The Bank of New York,
As Trustee
By:______________________________
As Authenticating Agent
By:______________________________
Authorized Officer
<PAGE> 48
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than May 15 and November 15 in
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Debentures as of the preceding April 30 or
October 31, as the case may be, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for Debentures, no such list need be furnished with respect to such
Debentures.
SECTION 7.2 Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 3.12 of the Trust Indenture Act.
The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Debentures, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
Every Holder of Debentures, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 7.3 Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than _______ in each calendar year
with respect to the 12-month period ending on the previous _________, commencing
_______, _____.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Debentures are listed, with the Commission
<PAGE> 49
and with the Company. The Company will notify the Trustee when any Debentures
are listed for trading on any stock exchange.
SECTION 7.4 Reports by Company.
The Company shall:
(a) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such portions
of any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company is not required to file information, documents or reports pursuant
to either of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(c) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (a) and (b)
of this Section as may be required by rules and regulations prescribed from time
to time by the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc, Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or sell, lease or transfer its properties and assets as, or substantially as, an
entirety to, any Person, unless:
(a) the Person formed by or surviving any such consolidation
or any merger (if other than the Company), or to which such transfer or lease
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;
<PAGE> 50
(b) (A) in the case of a merger, the Company is the surviving
entity, or (B) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by sale or transfer, or which leases, the
properties and assets of the Company as, or substantially as, an entirety shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form reasonably satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and interest on all the
Debentures and the performance or observance of every covenant and condition of
this Indenture on the part of the Company to be performed or observed;
(c) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(d) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, transfer or lease and the supplemental indenture required in
connection with such transaction comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
SECTION 8.2 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any sale, transfer or lease of the properties and
assets of the Company as, or substantially as, an entirety in accordance with
Section 8.1, the successor Person formed by such consolidation or into which the
Company is merged or to which such sale, transfer or lease is made, shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named originally as the Company herein, and hereafter, except in
the case of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Debentures.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(a) to secure the Debentures; or
(b) to evidence the succession of another Person to the
Company and the assumption by such successor of the covenants of the Company
herein and in the Debentures; or
(c) to add to the covenants of the Company or the Events of
Default
<PAGE> 51
for the benefit of the Holders of the Debentures or to surrender any right or
power herein conferred upon the Company; or
(d) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, to
comply with any applicable mandatory provisions of law or to make any other
provisions with respect to matters or questions arising under this Indenture,
provided that such action pursuant to this Clause (d) shall not adversely affect
the interests of the Holders of Debentures in any material respect; or
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debentures;
(f) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification of
this Indenture under the Trust Indenture Act or under any similar federal
statute subsequently enacted, and to add to this Indenture such other provisions
as may be expressly required under the Trust Indenture Act.
SECTION 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Debentures (voting as one class), by Act of said
Holders delivered to the Company and the Trustee, the Company and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Debentures under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Debenture affected thereby,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest, if any, on, any Debenture, or reduce
the principal amount thereof or premium, if any, on or the rate of interest
thereon or modify the provisions of this Indenture with respect to the
subordination of the Debentures in a manner adverse to the Holders or adversely
affect any right to convert or exchange any Debenture into any other security,
or
(b) reduce the percentage in principal amount of the
Outstanding Debentures, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(c) change any obligation of the Company, with respect to
Outstanding Debentures, to maintain an office or agency in the places and for
the purposes specified in Section 10.2, or
(d) modify any of the provisions of this Section, Section
5.13 or Section 10.6, except to increase any such percentage or to provide that
certain other provisions of
<PAGE> 52
this Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Debenture affected thereby; provided, however, that this clause
shall not be deemed to require the consent of any Holder with respect to changes
in the references to "the Trustee" and concomitant changes in this Section, or
the deletion of this proviso, in accordance with the requirements of Sections
6.11 and 9.1(e).
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debentures theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust indenture Act as then in effect.
SECTION 9.6 Reference in Debentures to Supplemental Indentures.
Debentures authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Debentures so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Debentures.
ARTICLE X
COVENANTS
<PAGE> 53
SECTION 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of Debentures that it
will duly and punctually pay the principal of and any premium and interest on
the Debentures in accordance with the terms of the Debentures and this
Indenture.
SECTION 10.2 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for the Debentures
an office or agency where Debentures may be presented or surrendered for
payment, where Debentures may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Debentures and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. 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 Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Debentures may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations,
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for Debentures for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby initially designates as the Place of Payment for the
Debentures as The City and State of New York, and initially appoints the Trustee
at its Corporate Trust Office as the Company's office or agency for each such
purpose in such city.
SECTION 10.3 Money for Debentures Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to the Debentures, it will, on or before each due date of the principal
of or any premium or interest on any of the Debentures, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal and any premium and interest so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Debentures, it will, on or prior to each due date of the principal of or any
premium or interest on any Debentures, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
<PAGE> 54
The Company will cause each Paying Agent for the Debentures other than
the Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will (1) hold all sums held by it for the
payment of the principal of (and premium, if any) or interest, if any, on
Debentures in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other obligor
upon the Debentures) in the making of any payment of principal (and premium, if
any) or interest, if any, on the Debentures; and (3) during the continuance of
any such default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums held in trust by such Paying Agent for payment in respect of
the Debentures.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Debenture and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Debenture shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease, provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 10.4 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 150 days after the end
of each fiscal year of the Company ending after the date hereof, an Officer's
Certificate, stating whether or not to the best knowledge of the signer thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 10.5 Existence.
Subject to Article Eight, the Company will do or cause to be done all
the things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and
<PAGE> 55
franchises; provided, however, that the Company shall not be required to
preserve any such right or franchise if it shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company.
SECTION 10.6 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 10.5, with respect to the
Debentures if before the time for such compliance the Holders of at least a
majority in aggregate principal amount of the Outstanding Debentures (voting as
one class) shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect; provided, however, that if the Debentures are held by the Trust or a
trustee of such Trust, such waiver or modification to such waiver shall not be
effective until the holders of a majority in Liquidation Amount of Trust
Securities shall have consented to such waiver or modification to such waiver;
provided further, that if the consent of the Holders of a majority in
Liquidation Amount of the Trust Securities of a class is required under the
Declaration, such waiver shall not be effective until the Holders of a majority
in Liquidation Amount of the Trust Securities of each such class shall have
consented to such waiver.
SECTION 10.7 Limitation of Transactions.
So long as any Debentures remain outstanding, if (a) an Event of
Default has occurred and is continuing or there shall have occurred and be
continuing any event of which the Company has actual knowledge that, with the
giving of notice or lapse of time, or both, would constitute an Event of
Default, (b) the Company is in default of its obligations under the Trust
Preferred Securities Guarantee (as defined in the Declaration) or the Trust
Common Securities Guarantee (as defined in the Declaration), or (c) the Company
shall have given notice of its election to defer payments of interest on the
Debentures by extending the interest payment period as provided in Section 3.12
and such period or any extension thereof shall be continuing, then, during such
period, the Company shall not (i) declare or pay dividends on, make
distributions with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to any of its Capital Stock (except for (w)
purchases of the Company's Common Stock related to the issuance of its Common
Stock under any of the Company's benefit plans for its directors, officers or
employees, (x) as a result of a reclassification of the the Company's Capital
Stock or the exchange or conversion of one series or class of the Company's
Capital Stock for another series or class of the Company's Capital Stock, (y)
the purchase of fractional interests in shares of the Company's Capital Stock
pursuant to the conversion or exchange provisions of such Capital Stock or the
security being converted or exchanged, and (z) redemptions or purchases of any
rights pursuant to a shareholder rights plan and the issuance of Capital Stock
pursuant to such rights), (ii) make any payments of principal, interest or
premium, if any, on or repay or repurchase or redeem any debt securities of the
Company that rank pari passu with or junior to the Debentures (other than any
redemption, liquidation, interest, principal or guarantee payment by the Company
where the
<PAGE> 56
payment is made by way of securities (including the Company's Capital Stock)
that rank pari passu with or junior to the securities on which such redemption,
interest, principal or guarantee payment is being made) or (iii) make any
guarantee payments regarding the foregoing (other than payments under the Trust
Preferred Securities Guarantee (as defined in the Declaration)) .
SECTION 10.8 Covenants As To Trust.
The Company covenants with each Holder of the Debentures that it will
(i) for so long as Trust Preferred Securities are outstanding, (a) not convert
the Debentures except pursuant to a notice of conversion delivered to the
Conversion Agent under the Declaration by a holder of Trust Securities, (b)
maintain directly or indirectly 100% ownership of the Trust Common Securities,
provided, that any permitted successor of the Company under this Indenture may
succeed to the Company's ownership of the Trust Common Securities; and (c) not
voluntarily terminate, wind-up or liquidate the Trust, except in connection with
(A) a distribution of the Debentures to the holders of Trust Preferred
Securities in liquidation of the Trust, (B) the redemption of all Trust
Securities or (C) mergers, consolidations or amalgamations permitted by the
Declaration; (ii) use its commercially reasonable efforts, consistent with the
terms and provisions of the Declaration to cause the Trust to remain classified
as a grantor trust, and not taxable as a corporation, for United States federal
income tax purposes; (iii) deliver shares of Common Stock upon an election by a
holder of Debentures to convert such Debentures into or for Common Stock, and
(iv) honor all obligations relating to the conversion or exchange of the Trust
Securities into or for Common Stock or Debentures.
SECTION 10.9 Certain Conversions Deemed Payment.
For the purposes of Article XIII only, (1) the issuance and delivery of
junior securities upon conversion of Debentures in accordance with Article XII
hereof shall not be deemed to constitute a payment or distribution on account of
the principal of or premium or interest on Debentures or on account of the
purchase or other acquisition of Debentures, and (2) the payment, issuance or
delivery of cash, property or securities (other than junior securities) upon
conversion of a Debenture shall be deemed to constitute payment on account of
the principal of such Debenture. For the purposes of this Section 10.9, the term
"junior securities" means (a) shares of any stock of any class of the Company
and (b) securities of the Company which are subordinated in right of payment to
the prior payment in full of all Senior Debt which may be outstanding at the
time of issuance or delivery of such securities to substantially the same extent
as, or to a greater extent than, the Debentures are so subordinated as provided
in Article XIII. Nothing contained in this Article X or elsewhere in this
Indenture, or in the Debentures is intended to or shall impair, as among the
Company, its creditors other than holders of Senior Debt and the Holders of the
Debentures, the right, which is absolute and unconditional, of the Holder of any
Debenture to convert such Debenture in accordance with Article XII hereof.
ARTICLE XI
REDEMPTION OF DEBENTURES
<PAGE> 57
SECTION 11.1 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debentures shall be evidenced
by a Board Resolution. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Debentures to be redeemed and, if applicable, of the
Debentures to be redeemed. In the case of any redemption of Debentures (1) prior
to the expiration of any restriction on such redemption provided in the terms of
such Debentures or elsewhere in this Indenture, or (2) pursuant to an election
of the Company which is subject to a condition specified in the terms of such
Debentures, the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction or condition.
SECTION 11.2 Selection by Trustee of Debentures to Be Redeemed.
If less than all the Debentures are to be redeemed, the particular
Debentures to be redeemed shall be selected not more than 45 days prior to the
Redemption Date by the Trustee, from the Outstanding Debentures not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Debentures or any integral
multiple thereof) of the principal amount of Debentures of a denomination larger
than the minimum authorized denomination for Debentures.
The Trustee shall promptly notify the Company in writing of the
Debentures selected for redemption and, in the case of any Debentures selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debentures shall relate,
in the case of any Debentures redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debentures which has been or is to be
redeemed.
SECTION 11.3 Notice of Redemption.
Notice of redemption shall be given by first-class mail (if
international mail, by air mail), postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date, to each Holder of Debentures to
be redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Debentures are to be
redeemed, the identification (and, in the case of partial redemption of any
Debentures, the principal amounts) of
<PAGE> 58
the particular Debentures to be redeemed,
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debenture to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date,
and
(e) the place or places where such Debentures are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Debentures to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 11.4 Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Debentures
which are to be redeemed on that date.
SECTION 11.5 Debentures Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debentures so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Debentures shall cease to bear interest. Upon surrender of any
such Debenture for redemption in accordance with said notice, such Debenture
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that, installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Debentures, or one or more Predecessor
Debentures, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.7.
If any Debenture called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Debenture.
SECTION 11.6 Debentures Redeemed in Part.
Any Debenture which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Debenture without service
charge, a new Debenture or Debentures of like tenor, of any authorized
denomination as
<PAGE> 59
requested by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Debenture so surrendered.
SECTION 11.7 Optional Redemption.
(a) The Company shall have the right to redeem the Debentures, in whole
or in part, from time to time, on or after . Any redemption pursuant to this
paragraph will be made upon not less than 30 days nor more than 60 days notice
to the Holders of the Debentures, at the following Redemption Prices (expressed
as percentages of the principal amount of the Debentures), if redeemed during
the 12-month period beginning on of the years set forth below:
Year Redemption Price
---- ---------------------
in each case together with accrued and unpaid interest (including Additional
Interest and Additional Sums, if any) to (but not including) the date fixed for
redemption (subject to the rights of Holders of record on any Regular Record
Date to receive interest due on any Interest Payment Date that is on or prior to
such redemption date).
(b) If at any time prior to the Conversion Expiration Date, less than
ten percent (10%) in principal amount of the Debentures originally issued by the
Company remain outstanding, such Debentures shall be redeemable, at the option
of the Company, exercisable at any time in whole but not in part, at a
Redemption Price equal to the aggregate unpaid principal amount thereof, and all
accrued and unpaid interest (including Additional Interest and Additional Sums,
if any) due thereon to the date fixed for redemption.
(c) If any Debenture selected for partial redemption is converted in
part before termination of the conversion right with respect to the portion of
the Debenture so selected, the converted portion of such Debenture shall be
deemed (so far as may be) to be the portion selected for redemption. Debentures
which have been converted during a selection of Debentures to be redeemed shall
be treated by the Trustee as Outstanding for the purpose of such selection. In
any case where more than one Debenture is registered in the same name, the
Trustee in its discretion may treat the aggregate principal amount so registered
as if it were represented by one Debenture.
(d) The notice of redemption to be made to the Holders of the
Debentures shall specify, in addition to those items specified in Section 11.3,
the conversion rate or price, the date on which the right to convert the
Debentures to be redeemed will terminate and the place or places where such
Debentures may be surrendered for conversion.
SECTION 11.8 Redemption upon Occurrence of Trust Tax Event.
If, at any time after , a Trust Tax Event shall occur and be
continuing, the
<PAGE> 60
Company shall have the right, within 90 days following the occurrence of such
Trust Tax Event, to elect to redeem the Debentures in whole or in part, upon not
less than 30 nor more than 60 days' notice at the Redemption Price for cash
equal to the aggregate unpaid principal amount thereof plus accrued and unpaid
interest thereon (including Additional Interest and Additional Sums, if any) to
the date fixed for redemption.
SECTION 11.9 Exchange of Trust Securities for Debentures.
(a) At any time, the Company shall have the right to terminate the
Trust and cause the Debentures to be distributed to the holders of the Trust
Securities in liquidation of the Trust after satisfaction of liabilities to
creditors of the Trust as provided by applicable law.
(b) If a Trust Special Event shall occur, the Company shall give the
Trustee notice of the same. If a Trust Special Event shall occur and be
continuing, the Declaration requires the Property Trustee and the Administrative
Trustees (as defined in the Declaration) under the Declaration to direct the
Conversion Agent under the Declaration to exchange all outstanding Trust
Securities for the Debentures having an aggregate unpaid principal amount equal
to the aggregate Liquidation Amount of the Trust Securities to be exchanged with
accrued and unpaid interest in an amount equal to any unpaid distributions
(including any Additional Amounts (as defined in the Declaration)) on the Trust
Securities, provided that, in the case of a Trust Tax Event, the Company shall
have the right to direct the Conversion Agent that less than all, or none, of
the Trust Securities be so exchanged (i) if and for so long as the Company shall
have elected to pay any Additional Sums (as defined in the Declaration) such
that the net amounts received by holders of the Trust Securities not so
exchanged in respect of distributions are not reduced as a result of such Trust
Tax Event, and shall not have revoked any such election or failed to make such
payments or (ii) if the Company shall instead elect to redeem the Debentures, in
whole or in part, in the manner set forth in Section 11.8.
SECTION 11.10 Interest on Converted Debentures.
If any Debenture called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held in
trust for the redemption of such Debenture shall be paid to the Company upon
Company Request or, if then held by the Company, shall be released from such
trust.
ARTICLE XII
CONVERSION OF DEBENTURES
SECTION 12.1 Conversion Rights.
Subject to and upon compliance with the provisions of this Article, the
Debentures are convertible, at the option of the Holder, at any time prior to
the Conversion Expiration Date, into fully paid and nonassessable shares of
Common Stock of the Company at an initial conversion rate of shares of Common
Stock for each $ in aggregate principal amount of
<PAGE> 61
Debentures (equal to a conversion price of $ principal amount of Debentures per
share of Common Stock, subject to adjustment as described in this Article (as
adjusted, the "Conversion Price")). The Company shall give notice to the
Conversion Agent immediately upon payment of the foregoing dividend. A Holder of
Debentures may convert any portion of the principal amount of the Debentures
into that number of fully paid and nonassessable shares of Common Stock
(calculated as to each conversion to the nearest 1/100th of a share) obtained by
dividing the principal amount of the Debentures to be converted by the
Conversion Price. In case a Debenture or portion thereof is called for
redemption, such conversion right in respect of the Debenture or portion so
called shall expire at the close of business on the Conversion Expiration Date.
SECTION 12.2 Conversion Procedures.
(a) In order to convert all or a portion of the Debentures, the Holder
thereof shall deliver to the Trustee, as conversion agent or to such other agent
appointed for such purposes (the "Conversion Agent") an irrevocable Notice of
Conversion setting forth the principal amount of Debentures to be converted, and
the name or names, if other than the Holder, in which the shares of Common Stock
should be issued upon conversion together with the Debentures to be converted,
duly endorsed or assigned to the Company or in blank. In addition, a holder of
Trust Securities may exercise its right under the Declaration to convert such
Trust Securities into Common Stock by delivering to the Conversion Agent an
irrevocable Notice of Conversion setting forth the information called for by the
preceding sentence and directing the Conversion Agent (i) to exchange such Trust
Preferred Security for a portion of the Debentures held by the Trust (at an
exchange rate of $ principal amount at of Debentures for each $ of Liquidation
Amount of Trust Securities) and (ii) to immediately convert such Debentures, on
behalf of such holder, into Common Stock of the Company pursuant to this Article
and, if such Trust Securities are in definitive form, surrendering such Trust
Securities to the Conversion Agent. So long as the Trust Securities are
outstanding, the Conversion Agent shall not convert any Debentures except
pursuant to a Notice of Conversion delivered to the Conversion Agent by a holder
of Trust Securities. If a Notice of Conversion is delivered on or after a
Regular Record Date and prior to the subsequent Interest Payment Date (other
than with respect to a Debenture which has been called for redemption on a date
within such period), the Holder of record on the Regular Record Date will be
entitled to receive the interest paid on the subsequent Interest Payment Date on
the portion of Debentures to be converted notwithstanding the conversion thereof
prior to such Interest Payment Date. Except as otherwise provided in the
immediately preceding sentence, in the case of any Debenture which is converted,
interest whose Stated Maturity is on or after the date of conversion of such
Debenture shall not be payable, and the Company shall not make nor be required
to make any other payment, adjustment or allowance with respect to accrued but
unpaid interest on the Debentures being converted, which shall be deemed to be
paid in full. Each conversion shall be deemed to have been effected immediately
prior to the close of business on the day on which the Notice of Conversion was
received (the "Conversion Date") by the Conversion Agent from the Holder or from
a holder of the Trust Securities effecting a conversion thereof pursuant to its
conversion rights under the Declaration, as the case may be. The Person or
Persons entitled to receive the Common Stock issuable upon such conversion shall
be treated for all purposes as
<PAGE> 62
the record holder or holders of such Common Stock as of the Conversion Date and
such Person or Persons shall cease to be a record Holder or record Holders of
the Debentures on that date. As promptly as practicable on or after the
Conversion Date, the Company shall issue and deliver at the office of the
Conversion Agent, unless otherwise directed by the Holder in the Notice of
Conversion, a certificate or certificates for the number of full shares of
Common Stock issuable upon such conversion, together with the cash payment, if
any, in lieu of any fraction of any share to the Person or Persons entitled to
receive the same. The Conversion Agent shall deliver such certificate or
certificates to such Person or Persons.
(b) The Company's delivery upon conversion of the fixed number of
shares of Common Stock into which the Debentures are convertible (together with
the cash payment, if any, in lieu of fractional shares) shall be deemed to
satisfy the Company's obligation to pay the principal amount of the portion of
Debentures so converted and any unpaid interest (including Additional Interest
and Additional Sums, if any) accrued on such Debentures at the time of such
conversion.
(c) No fractional shares of Common Stock will be issued as a result of
conversion, but in lieu thereof, the Company shall pay to the Conversion Agent,
a cash adjustment in an amount equal to the same fraction of the Closing Price
with respect to such fractional interest on the date on which the Debentures or
Trust Preferred Securities, as the case may be, were duly surrendered to the
Conversion Agent for conversion, and the Conversion Agent in turn will make such
payment, if any, to the Holder of the Securities or the holder of the Trust
Securities so converted.
(d) In the event of the conversion of any Debenture in part only, a new
Debenture or Debentures for the unconverted portion thereof will be issued in
the name of the Holder thereof upon the cancellation of the Debenture converted
in part in accordance with Section 3.5 or with respect to the Debentures
evidenced by a Global Debenture or otherwise held by the Property Trustee, by
the Trustee indicating the reduced principal amount of such Global Debenture on
the schedule attached thereto.
(e) In effecting the conversion transactions described in this Section,
the Conversion Agent is acting as agent of the holders of Trust Securities (in
the exchange of Trust Securities for Debentures) and as agent of the Holders of
Debentures (in conversion of Debentures into Common Stock), as the case may be,
directing it to effect such conversion transactions. The Conversion Agent is
hereby authorized (i) to exchange Debentures held by the Trust from time to time
for Trust Securities in connection with the conversion of such Trust Securities
in accordance with this Article and (ii) to convert all or a portion of the
Debentures into Common Stock and thereupon to deliver such shares of Common
Stock in accordance with the provisions of this Article and to deliver to the
Property Trustee a new Debenture or Debentures for any resulting unconverted
principal amount.
SECTION 12.3 Expiration of Conversion Rights.
The conversion rights of the Holders shall expire on the close of
business on the Business
<PAGE> 63
Day prior to the maturity date of the Debentures, or, in the case of Debentures
called for redemption, at the close of business on the Business Day prior to the
Redemption Date unless the Company defaults in making the payment due upon
redemption (the "Conversion Expiration Date").
SECTION 12.4 Conversion Price Adjustments.
The Conversion Price shall be subject to adjustment (without
duplication) from time to time as follows:
(a) In case the Company shall, while any of the Debentures are
outstanding, (i) pay a dividend or make a distribution with respect to its
Common Stock in shares of Common Stock , (ii) subdivide its outstanding shares
of Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares or (iv) reclassify its shares of Common Stock into
shares of Common Stock and securities other than shares of Common Stock not
constituting a Fundamental Change, then the Conversion Price and the number and
kind of shares of Common Stock and such other securities receivable upon a
conversion of Debentures in effect immediately prior to such action shall be
adjusted so that the Holder of any Debentures thereafter surrendered for
conversion shall be entitled to receive the number of shares of Common Stock and
such other securities of the Company which such Holder would have owned
immediately prior thereto if such Debenture had been converted immediately prior
thereto. An adjustment made pursuant to this subsection (a) shall become
effective immediately after the record date in the case of a dividend or other
distribution and shall become effective immediately after the effective date in
case of a subdivision, combination or reclassification (or immediately after the
record date if a record date shall have been established for such event). If, as
a result of an adjustment made pursuant to this subsection (a), the Holder of
any Debenture thereafter surrendered for conversion shall become entitled to
receive shares of two or more classes or series of Capital Stock of the Company,
the Board of Directors, whose determination shall be conclusive and shall be
described in a Board Resolution shall determine the allocation of the adjusted
Conversion Price between or among shares of such classes or series of Capital
Stock. In the event that such dividend, distribution, subdivision, combination
or reclassification is not so paid or made, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect if such record
date had not been fixed.
(b) In case the Company shall, while any of the Debentures are
Outstanding, issue rights or warrants to all holders of its Common Stock
entitling them (for a period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase shares of Common Stock at a price
per share less than the Current Market Price per share of Common Stock on the
record date mentioned below, the Conversion Price for the Debentures shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of issuance of such
rights or warrants by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the record date
mentioned below, plus the number of shares which the aggregate offering price of
the total number of shares so offered for subscription or purchase would
purchase at such Current Market Price, and of which the denominator shall be the
number of shares of Common Stock outstanding at the close of business on the
record date mentioned
<PAGE> 64
below, plus the number of additional shares of Common Stock offered for
subscription or purchase. Such adjustment shall become effective immediately
after the record date for the determination of stockholders entitled to receive
such rights or warrants. For the purposes of this subsection, the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Company. In case any rights or warrants referred to in this
subsection in respect of which an adjustment shall have been made shall expire
unexercised, within 45 days after the same shall have been distributed or issued
by the Company, the Conversion Price shall be readjusted at the time of such
expiration to the Conversion Price that would have been in effect if no
adjustment had been made on account of the distribution or issuance of such
expired rights or warrants.
(c) Subject to the last sentence of this subsection (c), in case the
Company shall, by dividend or otherwise, distribute to all holders of its Common
Stock evidences of its indebtedness, shares of any class or series of Capital
Stock, cash or assets (including securities, but excluding any rights or
warrants referred to in subsection (b), any dividend or distribution paid
exclusively in cash and any dividend or distribution referred to in Section
12.4(a)), the Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect immediately prior
to the close of business on the date fixed for the determination of stockholders
entitled to such distribution (the "Reference Date") by a fraction of which the
numerator shall be the Current Market Price per share of the Common Stock on the
Reference Date less the fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and described in a
Board Resolution), on the Reference Date, of the portion of the evidences of
indebtedness, shares of Capital Stock, cash and assets so distributed applicable
to one share of Common Stock and the denominator shall be such Current Market
Price per share of the Common Stock, such reduction to become effective
immediately prior to the opening of business on the day following the Reference
Date. In the event that such dividend or distribution is not so paid or made,
the Conversion Price shall again be adjusted to be the Conversion Price which
would then be in effect if such dividend or distribution had not occurred. For
purposes of this subsection (c), any dividend or distribution that includes
shares of Common Stock or rights or warrants to subscribe for or purchase shares
of Common Stock shall be deemed instead to be (i) a dividend or distribution of
the evidences of indebtedness, shares of Capital Stock, cash or assets other
than such shares of Common Stock or such rights or warrants (making any
Conversion Price reduction required by this subparagraph (c)) immediately
followed by (ii) a dividend or distribution of such shares of Common Stock or
such rights or warrants (making any further Conversion Price reduction required
by subsection (a) or (b)), except any shares of Common Stock included in such
dividend or distribution shall not be deemed outstanding for purposes of
computing any adjustment of the Conversion Price in subsection (a).
(d) In case the Company shall pay or make a dividend or other
distribution on its Common Stock exclusively in cash (excluding all (i) regular
quarterly cash dividends that do not exceed the per share amount of the
immediately preceding regular quarterly cash dividend (as adjusted to reflect
any of the events referred to in Sections 12.4(a), 12.4(b) or 12.4(c)) and (ii)
regular quarterly cash dividends if the annualized amount thereof per share of
Common Stock does not exceed 10% of the Current Market Price per share of the
Common Stock on the
<PAGE> 65
Trading Day immediately preceding the date of declaration of such dividend), the
Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the effectiveness of the Conversion Price reduction contemplated by this
subsection (d) by a fraction, of which the numerator shall be the Current Market
Price per share of the Common Stock on the date fixed for the payment of such
distribution less the amount of cash so distributed (excluding that portion of
such distribution that does not exceed 10% of the Current Market Price per
share, determined as provided above) applicable to one share of Common Stock and
of which the denominator shall be such Current Market Price per share of the
Common Stock, such reduction to become effective immediately prior to the
opening of business on the day following the date fixed for the payment of such
distribution; provided, however, that in the event the portion of the cash so
distributed applicable to one share of Common Stock is equal to or greater than
the Current Market Price per share of the Common Stock on the record date
mentioned above (excluding that portion of such distribution that does not
exceed 10% of the Current Market Price per share, determined as provided above),
in lieu of the foregoing adjustment adequate provision shall be made so that
each Holder of Debentures shall have the right to receive upon conversion the
amount of cash such Holder would have received had such Holder converted such
Debenture(s) immediately prior to the record date for the distribution of the
cash (less that portion of such distribution that does not exceed 10% of the
Current Market Price per share, determined as provided above). In the event that
such dividend or distribution is not so paid or made, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in effect if
such record date had not been fixed.
(e) In case a tender or exchange offer (other than an odd-lot offer)
made by the Company or any Subsidiary of the Company for all or any portion of
the Common Stock shall expire and such tender or exchange offer shall involve
the payment by the Company or such Subsidiary of consideration per share of
Common Stock having a fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and described in a
Board Resolution) at the last time (the "Expiration Time") tenders or exchanges
may be made pursuant to such tender or exchange offer as it shall have been
amended) that exceeds 110% of the Current Market Price per share of the Common
Stock on the Trading Day next succeeding the Expiration Time, the Conversion
Price shall be reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price reduction contemplated by this subsection
(e) by a fraction, of which the numerator shall be the number of shares of
Common Stock outstanding (including any shares tendered or exchanged in such
offer) at the Expiration Time (including the Purchased Shares, as defined below)
multiplied by the Current Market Price per share of the Common Stock on the
Trading Day next succeeding the Expiration Time and of which the denominator
shall be the sum of (x) the fair market value (determined as aforesaid) of the
aggregate consideration payable to stockholders based on the acceptance (up to
any maximum specified in the terms of the tender or exchange offer) of all
shares validly tendered or exchanged and not withdrawn as of the Expiration Time
(the shares deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares") (excluding that portion of such consideration that does not
exceed 110% of the Current Market Price per share of the Common Stock on the
Trading Day next succeeding the Expiration Time) and (y) the product of the
<PAGE> 66
number of shares of Common Stock outstanding (less any Purchased Shares) at the
Expiration Time and the Current Market Price per share of the Common Stock on
the Trading Day next succeeding the Expiration Time, such reduction to become
effective immediately prior to the opening of business on the day following the
Expiration Time. In the event that no shares are validly accepted in such tender
or exchange offer, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such record date had not been
fixed.
(f) The Company shall have the right to reduce from time to time the
Conversion Price by any amount selected by the Company for any period of at east
20 days, provided, that the Company shall give at least 15 days' prior notice of
such reduction to the Trustee, the Property Trustee, the Conversion Agent, the
holders of the Trust Securities (if the Trust then holds Debentures) and other
Holders of the Debentures. The Company may, at its option, make such reductions
in the Conversion Price, in addition to those set forth above in Sections
12.4(a) through (e), as the Board of Directors deems advisable to avoid or
diminish any income tax to holders of Common Stock resulting from any dividend
or distribution of stock (or rights to acquire stock) or from any event treated
as such for income tax purposes.
(g) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
Conversion Price; provided, however, that any adjustments which by reason of
this subsection (g) are not required to be made shall be carried forward and
taken into account in determining whether any subsequent adjustment shall be
required. There shall be no adjustment of the Conversion Price in case of the
issuance of any Capital Stock (or securities convertible into or exchangeable
for Capital Stock) of the Company except as specifically described in this
Article.
(h) The Company may make such reductions in the Conversion Price, in
addition to those required by subsections (a) through (f), as the Board of
Directors considers to be advisable to avoid or diminish any income tax to
holders of Common Stock or rights to purchase Common Stock resulting from any
dividend or distribution of stock (or rights to acquire stock) or from any event
treated as such for income tax purposes. 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, the reduction is irrevocable during the period, and the
Board of Directors shall have made a determination that such reduction would be
in the best interests of the Company, which determination shall be conclusive.
Whenever the Conversion Price is reduced pursuant to the preceding sentence, the
Company shall mail to Holders of record of the Debentures a notice of the
reduction at least 15 days prior to the date the reduced Conversion Price takes
effect, and such notice shall state the reduced Conversion Price and the period
it will be in effect.
(i) If any action would require adjustment of the Conversion Price
pursuant to more than one of the provisions described above, only one adjustment
shall be made and such adjustment shall be the amount of adjustment that has the
highest absolute value to the Holders of the Debentures.
SECTION 12.5 Fundamental Change.
<PAGE> 67
(a) In the event that the Company is a party to any transaction
(including, without limitation, a merger other than a merger that does not
result in a reclassification, conversion, exchange or cancellation of Common
Stock), consolidation, continuance, sale of all or substantially all of the
assets of the Company, recapitalization, holding company reorganization (whether
pursuant to Section 251(g) of the Delaware General Corporation Law or otherwise)
or reclassification of Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value or as a result of a
subdivision or combination of Common Stock) or any compulsory share exchange
(each of the foregoing being referred to as a "Transaction"), in each case, as a
result of which shares of Common Stock shall be converted into the right to
receive, or shall be exchanged for, (i) in the case of any Transaction other
than a Transaction involving a Stock Fundamental Change (and subject to funds
being legally available for such purpose under applicable law at the time of
such conversion), securities, cash or other property, each Debenture shall
thereafter be convertible into the kind and, in the case of a Transaction which
does not involve a Fundamental Change, amount of securities, cash and other
property receivable upon the consummation of such Transaction by a holder of
that number of shares of Common Stock into which a Debenture was convertible
immediately prior to such Transaction, or (ii) in the case of a Transaction
involving a Stock Fundamental Change (and subject to funds being legally
available for such purpose under applicable law at the time of such conversion),
securities, cash or other property, each Debenture shall thereafter be
convertible (in the manner described herein) into Common Stock of the kind
received by holders of Common Stock (but in each case after giving effect to any
adjustment discussed in subsections (b) and (c) relating to a Fundamental Change
if such Transaction constitutes a Fundamental Change). The Holders of Debentures
will have no voting rights with respect to any Transaction described in this
section.
(b) If any Fundamental Change occurs, then the Conversion Price in
effect will be adjusted immediately after such Fundamental Change as described
in subsection (c) below. In addition, in the event of a Stock Fundamental
Change, each Debenture shall be convertible solely into Common Stock of the kind
received by holders of Common Stock as a result of such Stock Fundamental
Change.
(c) The Conversion Price in the case of any Transaction involving a
Fundamental Change will be adjusted immediately after such Fundamental Change as
follows:
(1) in the case of a Non-Stock Fundamental Change, the
Conversion Price immediately following such Non-Stock Fundamental
Change will be the lower of (A) the Conversion Price in effect
immediately prior to such Non-Stock Fundamental Change (after giving
effect to any other prior adjustments), and (B) the result obtained by
multiplying the greater of the Applicable Price and the then applicable
Reference Market Price by a fraction of which the numerator will be 100
and of which the denominator will be an amount based upon the date such
Non-Stock Fundamental Change occurs. For the 12-month period beginning
(and during the period from to ), the denominator used in the
immediately preceding sentence will be %, and such denominator will
decrease by % during each
<PAGE> 68
successive 12-month period, provided that in no event shall the
denominator be less than 100%; and
(2) in the case of a Stock Fundamental Change, the Conversion
Price immediately following such Stock Fundamental Change will be the
Conversion Price in effect immediately prior to such Stock Fundamental
Change (after giving effect to any other prior adjustments) as adjusted
by multiplying such Conversion Price by a fraction, of which the
numerator will be the Purchaser Stock Price and of which the
denominator will be the Applicable Price; provided, however, that in
the event of a holding company reorganization of the Company (whether
effected in accordance with Section 251(g) of the Delaware General
Corporation Law or otherwise) or in the event of a Stock Fundamental
Change in which (A) 100% of the value of the consideration received by
a holder of Common Stock is Common Stock of the successor, acquiror or
other third party (and cash, if any, is paid only with respect to any
fractional interests in such Common Stock resulting from such Stock
Fundamental Change) and (B) all of the Common Stock will have been
exchanged for, converted into, or acquired for Common Stock (and cash
with respect to fractional interests) of the successor, acquiror, or
other third party, the Conversion Price immediately following such
Stock Fundamental Change will be the Conversion Price in effect
immediately prior to such Stock Fundamental Change as adjusted by
multiplying such Conversion Price by a fraction, of which the numerator
will be one and the denominator will be the number of shares of Common
Stock of the holding company, successor, acquiror or other third party
received by a holder of one share of Common Stock as a result of such
Stock Fundamental Change.
SECTION 12.6 Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price and shall
prepare a certificate signed by the Chief Financial Officer or the Treasurer of
the Company setting forth the adjusted Conversion Price and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Trustee, the Conversion Agent, the
Property Trustee and the transfer agent for the Trust Securities and the
Debentures; and
(b) a notice stating the Conversion Price has been adjusted and setting
forth the adjusted Conversion Price shall as soon as practicable be mailed by
the Company to all record holders of Trust Securities and the Debentures at
their last addresses as they appear upon the transfer books of the Company and
the Trust and the Securities Registrar.
SECTION 12.7 Prior Notice of Certain Events.
In case:
(i) the Company shall (A) declare any dividend (or any other
distribution) on its
<PAGE> 69
Common Stock, other than (x) a dividend payable in shares of Common Stock or (y)
a dividend payable in cash that would not require an adjustment pursuant to
Section 12.4(c) or (d) or (B) authorize a tender or exchange offer that would
require an adjustment pursuant to Section 12.4(e) (or shall amend any such
tender or exchange offer to change the maximum number of shares being sought or
the amount or type of consideration being offered (including by exchange)
therefor);
(ii) the Company shall authorize the granting to all holders of Common
Stock of rights or warrants to subscribe for or purchase any shares of Capital
Stock of any class or series or of any other rights or warrants;
(iii) of any reclassification of Common Stock (other than a subdivision
or combination of the outstanding Common Stock, or a change in par value, or
from par value to no par value, or from no par value to par value), or of any
consolidation or merger to which the Company is a party and for which approval
of stockholders of the Company shall be required, or of the sale or transfer of
all or substantially all of the assets of the Company or of any compulsory share
exchange whereby the Common Stock is converted into other securities, cash or
other property; or
(iv) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company, (A) shall if any Trust Securities are outstanding under the
Declaration, cause to be filed with the transfer agent for the Trust Securities,
and shall cause to be mailed to the holders of record of the Trust Securities,
at their last addresses as they shall appear upon the transfer books of the
Trust or (B) shall cause to be mailed to all Holders at their last addresses as
they shall appear in the Security Register, at least 15 days prior to the
applicable record, effective or expiration date hereinafter specified, a notice
stating (x) the date on which a record (if any) is to be taken for the purpose
of such dividend, distribution, rights or warrants or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution, rights or warrants are to be determined, (y) the
date on which such reclassification, consolidation, merger, sale, transfer,
share exchange, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up or (z) the date on which such tender or exchange offer (other than
an exchange offer contemplated by clause (y) above) commenced, the date on which
such tender or exchange offer is scheduled to expire unless extended, the
consideration offered and the other material terms thereof (or the material
terms of any amendment thereto); but no failure to mail such notice or any
defect therein or in the mailing thereof shall affect the validity of the
corporate action required to be specified in such notice.
SECTION 12.8 Dividend Reinvestment and Other Plans.
<PAGE> 70
Notwithstanding anything to the contrary in this Article, no adjustment
of the Conversion Price will be made upon the issuance of any shares of Common
Stock of the Company pursuant to any present or future plan providing for the
reinvestment of dividends or interest payable on securities of the Company and
the investment of additional optional amounts in shares of Common Stock of the
Company under any such plan, or the issuance of any shares of Common Stock or
options or rights to purchase such shares pursuant to any present or future
employee benefit plan or program of the Company or pursuant to any option,
warrant, right, or exercisable, exchangeable or convertible security which does
not constitute an issuance to all holders of Common Stock or a class thereof, of
rights or warrants entitling holders of such rights or warrants to subscribe for
or purchase Common Stock at less than the Current Market Price.
SECTION 12.9 Certain Additional Rights.
In case the Company shall, by dividend or otherwise, declare or make a
distribution on its Common Stock referred to in Section 12.4(c) or 12.4(d)
(including, without limitation, dividends or distributions referred to in the
last sentence of Section 12.4(c)), the Holders of the Debentures upon the
conversion thereof subsequent to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution and prior to
the effectiveness of the Conversion Price adjustment in respect of such
distribution, shall also be entitled to receive for each share of Common Stock
into which the Debentures are converted, the portion of the shares of Common
Stock, rights, warrants, evidences of indebtedness, shares of Capital Stock,
cash and assets so distributed applicable to one share of Common Stock;
provided, however, that, at the election of the Company with respect to all
Holders so converting, the Company may, in lieu of distributing to such Holder
any portion of such distribution not consisting of cash or securities of the
Company, pay such Holder an amount in cash equal to the fair market value
thereof (as determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution). If any
conversion of Debentures described in the immediately preceding sentence occurs
prior to the payment date for a distribution to holders of Common Stock which
the Holder of Debentures so converted is entitled to receive in accordance with
the immediately preceding sentence, the Company may elect (such election to be
evidenced by a Board Resolution) to distribute to such Holder a due bill for the
shares of Common Stock, rights, warrants, evidences of indebtedness, shares of
Capital Stock, cash or assets to which such Holder is so entitled, provided,
that such due bill (i) meets any applicable requirements of the principal
national securities exchange or other market on which the Common Stock is then
traded and (ii) requires payment or delivery of such shares of Common Stock,
rights, warrants, evidences of indebtedness, shares of Capital Stock, cash or
assets no later than the date of payment or delivery thereof to holders of
shares of Common Stock receiving such distribution.
SECTION 12.10 Reservation of Common Stock; Taxes.
(a) The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized and unissued Common Stock solely
for issuance upon the conversion of the Debentures, such number of shares of
Common Stock as shall from time to
<PAGE> 71
time be issuable upon the conversion of all the Debentures then outstanding.
Notwithstanding the foregoing, the Company shall be entitled to deliver upon
conversion of Debentures shares of Common Stock reacquired and held in the
treasury of the Company (in lieu of the issuance of authorized and unissued
shares of Common Stock) so long as any such treasury shares are free and clear
of all liens, charges, security interests or encumbrances. Any shares of Common
Stock issued upon conversion of the Debentures shall be duly authorized, validly
issued and fully paid and nonassessable. The Conversion Agent shall deliver the
shares of Common Stock received upon conversion of the Debentures to the
converting Holder free and clear of all liens, charges, security interests and
encumbrances, except for United States withholding taxes. The Company shall use
its commercially reasonable efforts to obtain and keep in force such
governmental or regulatory permits or other authorizations as may be required by
law, and shall comply with all applicable requirements as to registration or
qualification of the Common Stock (and all requirements to list the Common Stock
issuable upon conversion of Debentures that are at the time applicable), in
order to enable the Company to lawfully issue Common Stock to each Holder upon
conversion of the Debentures.
(b) The Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of
Debentures. The Company shall not, however, be required to pay any tax which may
be payable in respect of any transfer involved in the issue and delivery of
shares of Common Stock in a name other than that in which the Debentures so
converted were registered, and no such issue or delivery shall be made unless
and until the Person requesting such issue has paid to the Conversion Agent the
amount of any such tax, or has established to the satisfaction of the Conversion
Agent that such tax has been paid.
(c) Nothing in this Article shall limit the requirement of the Company
to withhold taxes pursuant to the terms of the Debentures or as set forth in the
Indenture or otherwise require the Trustee or the Company to pay any amounts on
account of such withholdings.
SECTION 12.11 Trustee Not Responsible for Determining Conversion Price or
Adjustments.
Neither the Trustee nor any Conversion Agent shall at any time be under
any duty or responsibility to any Holder of any Debenture to determine whether
any facts exist which may require any adjustment of the Conversion Price, or
with respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, or whether any indenture supplemental hereto
needs be entered into. Neither the Trustee nor any Conversion Agent shall be
accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock or of any securities or property, which may at any time
be issued or delivered upon the conversion of any Debenture; and neither the
Trustee nor any Conversion Agent makes any representation with respect thereto.
Neither the Trustee nor any Conversion Agent shall be responsible for any
failure of the Company to made any cash payment or to issue, transfer or deliver
any shares of Common Stock or stock certificates or other securities or property
upon the surrender of any Debenture for the purpose of conversion. All
Debentures delivered for conversion shall be delivered to the Trustee to be
canceled by or at the discretion of the Trustee, which shall dispose of the same
as provided in Section 3.9.
<PAGE> 72
ARTICLE XIII
SUBORDINATION OF DEBENTURES
SECTION 13.1 Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of Debentures, by his acceptance thereof, likewise
covenants and agrees, that the payment of the principal of (and premium, if
any), interest on each and all of the Debentures is hereby expressly
subordinated, to the extent and in the manner hereinafter set forth, in right of
payment to the prior payment in full of all Senior Debt.
SECTION 13.2 Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Debentures.
Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization of the Company, whether in bankruptcy,
insolvency, reorganization or receivership proceedings or upon an assignment for
the benefit of creditors or any other marshalling of the assets and liabilities
of the Company or otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred
in this Indenture upon the Senior Debt and the holders thereof with respect to
the Debentures and the Holders thereof by a lawful plan or reorganization under
applicable bankruptcy law),
(a) the holders of all Senior Debt shall be entitled to
receive payment in full of the principal thereof, premium, if any, interest, and
any interest thereon, due thereon before the Holders of the Debentures are
entitled to receive any payment upon the principal, premium, interest of or on
the Debentures or interest on overdue amounts thereof; and
(b) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to which the
Holders of the Debentures or the Trustee would be entitled except for the
provisions of this Article XIII shall be paid by the liquidating trustee or
agent or other person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to the
holders of Senior Debt or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments evidencing
any of such Senior Debt may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the principal of, premium, if any,
interest, and any interest thereon, on the Senior Debt held or represented by
each, to the extent necessary to make payment in full of all Senior Debt
remaining unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Senior Debt; and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, shall be received by the Trustee or the
Holders of the Debentures before all Senior Debt is paid in full, such payment
or distribution shall be paid over to the holders of such Senior
<PAGE> 73
Debt or their representative or representatives or to the trustee or trustees
under any indenture under which any instruments evidencing any of such Senior
Debt may have been issued, ratably as aforesaid, for application to the payment
of all Senior Debt remaining unpaid until all such Senior Debt shall have been
paid in full, after giving effect to any concurrent payment or distribution to
the holders of such Senior Debt.
Subject to the payment in full of all Senior Debt, the Holders of the
Debentures shall be subrogated to the rights of the holders of Senior Debt to
receive payments or distributions of cash, property or securities of the Company
applicable to Senior Debt until the principal, premium, interest, and any
interest thereon, of or on the Debentures shall be paid in full and no such
payments or distributions to the Holders of the Debentures of cash, property or
securities otherwise distributable to the Senior Debt shall, as between the
Company, its creditors other than the holders of Senior Debt, and the Holders of
the Debentures, be deemed to be a payment by the Company to or on account of the
Debentures. It is understood that the provisions of this Article XIII are and
are intended solely for the purpose of defining the relative rights of the
Holders of the Debentures, on the one hand, and the holders of Senior Debt, on
the other hand. Nothing contained in this Article XIII or elsewhere in this
Indenture or in the Debentures is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Debt, and the Holders of
the Debentures, the obligation of the Company, which is unconditional and
absolute, to pay to the Holders of the Debentures the principal, premium,
interest, and any interest thereon, of or on the Debentures as and when the same
shall become due and payable in accordance with their terms, or to affect the
relative rights of the Holders of the Debentures and creditors of the Company
other than the holders of Senior Debt, nor shall anything herein or in the
Debentures prevent the Trustee or the Holder of any Debenture from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article XIII of the holders
of Senior Debt in respect of cash, property or securities of the Company
received upon the exercise of any such remedy. Upon any payment or distribution
of assets of the Company referred to in this Article XIII, the Trustee shall be
entitled to conclusively rely upon a certificate of the liquidating trustee or
agent or other person making any distribution to the Trustee for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of Senior Debt and other indebtedness of the Company, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon, and all
other facts pertinent thereto or to this Article XIII.
The Trustee, however, shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt. The Trustee shall not be liable to any such holder
if it shall pay over or distribute to or on behalf of Holders of Debentures or
the Company moneys or assets to which any holder of Senior Debt shall be
entitled by virtue of this Article XIII. The rights and claims of the Trustee
under Section 6.7 shall not be subject to the provisions of this Article XIII.
If the Trustee or any Holder of Debentures does not file a proper claim
or proof of debt in the form required in any proceeding referred to above prior
to 30 days before the expiration of the time to file such claim in such
proceeding, then the holder of any Senior Debt is hereby authorized, and has the
right, to file an appropriate claim or claims for or on behalf of such Holder of
Debentures.
<PAGE> 74
SECTION 13.3 No Payment on Debentures in Event of Default on Senior Debt.
No payment by the Company on account of principal, premium, interest or
other amounts, and any interest thereon, of or on the Debentures shall be made
unless full payment of amounts then due for principal, premium, if any, sinking
funds, and interest or other amounts on Senior Debt has been made or duly
provided for in money or money's worth.
SECTION 13.4 Payments on Debentures Permitted.
Nothing contained in this Indenture or in any of the Debentures shall
(a) affect the obligation of the Company to make, or prevent the Company from
making, at any time except as provided in Sections 13.2 and 13.3, payments of
principal, premium, interest, and any interest thereon, of or on the Debentures
or (b) prevent the application by the Trustee of any moneys deposited with it
hereunder to the payment of or on account of the principal, premium, interest or
other amounts, and any interest thereon, of or on the Debentures unless the
Trustee shall have received at its Corporate Trust Office written notice of any
event prohibiting the making of such payment Business Days (i) prior to the date
fixed for such payment, or (ii) prior to the execution of an instrument to
satisfy and discharge this Indenture based upon the deposit of funds under
Section 4.1(a)(ii).
SECTION 13.5 Authorization of Holders of Debentures to Trustee to Effect
Subordination.
Each Holder of Debentures by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article XIII and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 13.6 Notices to Trustee.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee located at the Corporate Trust Office of the Trustee of any fact
known to the Company which would prevent the making of any payment to or by the
Trustee in respect of the Debentures. Notwithstanding the provisions of this
Article XIII or any other provisions of this Indenture, neither the Trustee nor
any Paying Agent (other than the Company) shall be charged with knowledge of the
existence of any Senior Debt or of any event which would prohibit the making of
any payment of moneys to or by the Trustee or such Paying Agent, unless and
until the Trustee or such Paying Agent shall have received (in the case of the
Trustee, at its Corporate Trust Office) written notice thereof from the Company
or from the holder of any Senior Debt or from the trustee for or representative
of any Senior Debt together with proof satisfactory to the Trustee of such
holding of Senior Debt or of the authority of such trustee or representative;
provided, however, that if at least two Business Days prior to the date upon
which by the terms hereof any such moneys may become payable for any purpose
(including, without limitation, the payment of the principal, premium, interest,
of or on any Debenture, or any interest thereon) or the date on which the
Trustee shall execute an instrument acknowledging satisfaction and
<PAGE> 75
discharge of this Indenture, the Trustee shall not have received with respect to
such moneys or the moneys deposited with it as a condition to such satisfaction
and discharge the notice provided for in this Section 13.6, then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such moneys and to apply the same to the purpose
for which they were received, and shall not be affected by any notice to the
contrary, which may be received by it on or after such two Business Days prior
to such date. The Trustee shall be entitled to conclusively rely on the delivery
to it of a written notice by a person representing himself to be a holder of
Senior Debt (or a trustee or representative on behalf of such holder) to
establish that such a notice has been given by a holder of Senior Debt or a
trustee or representative on behalf of any such holder. In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Debt to participate in any
payment or distribution pursuant to this Article Fourteen, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Debt 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 XIII and,
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
SECTION 13.7 Trustee as Holder of Senior Debt.
The Trustee shall be entitled to all the rights set forth in this
Article XIII in respect of any Senior Debt at any time held by it to the same
extent as any other holder of Senior Debt and nothing in this Indenture shall be
construed to deprive the Trustee of any of its rights as such holder.
SECTION 13.8 Modification of Terms of Senior Debt.
Any renewal or extension of the time of payment of any Senior Debt or
the exercise by the holders of Senior Debt of any of their rights under any
instrument creating or evidencing Senior Debt, including without limitation the
waiver of default thereunder, may be made or done all without notice to or
assent from Holders of the Debentures or the Trustee.
No compromise, alteration, amendment, modification, extension, renewal
or other change of, or waiver, consent or other action in respect of, any
liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Debt is outstanding or of such Senior Debt, whether or not such release
is in accordance with the provisions of any applicable document, shall in any
way alter or affect any of the provisions of this Article XIII or of the
Debentures relating to the subordination thereof.
-----------------------
This instrument may be executed with counterpart signature pages or in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
<PAGE> 76
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
AMERICAN CLASSIC VOYAGES CO.
By:
------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
------------------------------
Name:
Title:
<PAGE> 77
EXHIBIT A
----------------------
CUSIP NO. ____________
AMERICAN CLASSIC VOYAGES CO.
____% CONVERTIBLE SUBORDINATED DEBENTURE DUE _____
AMERICAN CLASSIC VOYAGES CO., a Delaware corporation (the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
____________________, as Property Trustee for the AMCV Capital Trust I, or
registered assigns, the principal sum of
______________________________________________________________________ or such
greater or lesser principal sums as shall be noted on the Schedule attached
hereto on __________ and to pay interest on said principal sum from ___________,
____ or from the most recent interest payment date (each such date, an "Interest
Payment Date") to which interest has been paid or duly provided for, quarterly
(subject to deferral as set forth herein) in arrears on _______ , _______,
_________ and ________ of each year, commencing __________, at the rate ____%
per annum plus Additional Interest and Additional Sums (as defined in Section
1.1 of the Indenture) if any, until the principal hereof shall have become due
and payable, and on any overdue principal. The amount of interest payable for
any period will be computed on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on this
Debenture is not a Business Day, then a payment of the interest payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day (and without any interest or
other payment in respect of any such delay), in each case with the same force
and effect as if made on the date the payment was originally payable. A
"Business Day" shall mean any day other than a day on which banking institutions
in the City of New York are authorized or required by law or executive order to
close. The interest installment so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be paid to
the Person in whose name this Debenture (or one or more Predecessor Debentures,
as defined in the Indenture) is registered at the close of business on the
Regular Record Date for such interest installment, which shall be the close of
business on the fifteenth day of the month of such Interest Payment Date. Any
such interest installment not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Debenture (or one or more
Predecessor Debentures) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice of which shall be given to Holders of Debentures not less than
10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Debentures may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
<PAGE> 78
The Company shall have the right at any time during the term
of this Debenture, from time to time, to extend the interest payment period of
such Debenture for a period not exceeding 20 consecutive quarters from the date
of issue or the most recent date that interest has been paid or been duly
provided for (an "Extension Period") provided that such period shall not extend
beyond the Maturity of this Debenture. During any Extension Period, interest
will compound quarterly and the Company shall have the right to make partial
payments of interest on any Interest Payment Date. At the end of any Extension
Period, the Company shall pay all interest then accrued and unpaid (together
with Additional Interest thereon to the extent that payment of such interest is
permitted by applicable law and Additional Sums, if any) to the Holder(s) in
whose names the Debentures are registered on the Regular Record Date preceding
the end of the Extension Period. "Additional Interest" means interest that shall
accrue on any interest on the Debentures that is in arrears for more than one
quarter or not paid during an Extension Period, which in either case shall
accrue at the rate per annum borne by this Debenture compounded quarterly. Prior
to the termination of any such Extension Period, the Company may further extend
the interest payment period, provided that such Extension Period together with
all such previous and further extensions thereof shall not exceed 20 consecutive
quarters or extend beyond the Maturity of this Debenture or end on a date other
than an Interest Payment Date. Upon the termination of any Extension Period and
upon the payment of all accrued and unpaid interest and any Additional Interest
then due, the Company may select a new Extension Period, subject to the
foregoing requirements. No interest shall be due and payable during an Extension
Period except at the end thereof and no default under this Debenture or Event of
Default shall be deemed to occur solely as a result of an Extension Period. The
Company shall give the Holder of this Debenture and the Trustee notice of its
selection of an Extension Period at least one Business Day prior to the earlier
of (i) the Interest Payment Date and (ii) the date that AMCV Capital Trust I is
required to give notice to __________________ or other applicable
self-regulatory organization or to holders of the Trust Securities of the record
date or the date distributions by such Trust are payable, but in any event not
less than one Business Day prior to such record date.
Payment of the principal of and interest on this Debenture will
be made at the office or agency of the Company maintained for that purpose in
New York, New York, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may be
made (i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or (ii) by wire transfer in
immediately available funds to such account as may be designated by the Person
entitled thereto as specified in the Security Register, so long as the
applicable Paying Agent has received proper transfer instructions in writing by
the Record Date prior to the applicable Interest Payment Date.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Debt, and this Debenture is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as
<PAGE> 79
may be necessary or appropriate to effectuate the subordination so provided and
(c) appoints the Trustee his attorney-in-fact for any and all such purposes.
Each Holder hereof, by his acceptance hereof, waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Debt, whether now outstanding or hereafter incurred,
and waives reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of the
Indenture summarized on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Debenture shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, American Classic Voyages Co. has caused this
instrument to be duly executed under its corporate seal.
Dated:
AMERICAN CLASSIC VOYAGES CO.
By: ___________________________
<PAGE> 80
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures referred to in the within-mentioned Indenture
THE BANK OF NEW YORK,
as Trustee
By: ___________________________
Authorized Officer
<PAGE> 81
[Reverse of Debenture]
This Debenture is one of a duly authorized issue of debt
securities of the Company, designated as its ____% Subordinated Convertible
Debentures Due _________ (herein called the "Debentures"), limited in aggregate
principal amount to (a) $__________ plus (b) such additional aggregate principal
amount (which may not exceed $____________ principal amount) of Debentures as
shall be purchased in connection with the exercise by the Underwriters of the
over-allotment option pursuant to the Underwriting Agreement, issued under a
Junior Convertible Subordinated Indenture, dated as of ________, ____, (the
"Indenture"), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Trustee, the Company and the Holders of
the Debentures, and of the terms upon which the securities are, and are to be,
authenticated and delivered.
All terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
The Company shall have the right to redeem this Debenture, at
the option of the Company, upon not less than 30 nor more than 60 days' notice,
without premium or penalty, in whole or in part at any time on or after ________
, ____ (an "Optional Redemption") at the following prices (expressed as
percentages of the principal amount of the Debentures) (the "Optional Redemption
Price") together with accrued and unpaid interest, including Additional Interest
and Additional Sums to, but excluding, the redemption date, if redeemed during
the 12-month period beginning ________ :
Year Redemption Price
---- ----------------
If the Debentures are redeemed on any ________, _______,
_______, or _______, accrued and unpaid interest (including accrued and unpaid
Additional Interest, if any) shall be payable to holders of record on the
relevant record date.
In addition, if at any time prior to the Conversion Expiration
Date less than ten percent (10%) in principal amount of the Debentures
originally issued by the Company remain outstanding, such Debentures shall be
redeemable, at the option of the Company, exercisable at any time in whole but
not in part, at a Redemption Price equal to the aggregate unpaid principal
amount thereof, and all accrued and unpaid interest due thereon.
So long as the corresponding Trust Securities are outstanding,
the proceeds from the redemption of any of the Debentures will be used by the
Property Trustee to redeem Trust Securities. In addition, so long as the Trust
Securities are outstanding, the proceeds from any repayment or prepayment of the
Debentures will be used to redeem Trust Securities in accordance with the
Declaration.
<PAGE> 82
If the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption, the Debentures will be redeemed pro rata or
by lot or by any other method utilized by the Trustee;
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof, except in the case of a
Global Debenture in which case the Trustee may reflect a reduction in the
principal amount of such Global Debenture by making a notation of same in the
schedule included in such Global Debenture.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the Debentures and the
interest accrued thereon may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
If a Trust Special Event (as defined herein) shall occur and be
continuing, this Debenture shall be exchangeable for Trust Securities in
accordance with Section 11.9 of the Indenture, unless a Trust Special Event is a
Trust Tax Event (as defined herein), in which case this Debenture may be
redeemed by the Company in accordance with Section 11.8 of the Indenture.
"Trust Investment Company Event" means that the Property Trustee
of the Trust, in its capacity on behalf of the AMCV Capital Trust I (the
"Trust"), shall have received an opinion of independent legal counsel having a
national tax and securities practice and that is experienced in such matters
(which opinion of counsel shall not have been rescinded by such law firm) to the
effect that as a result of the occurrence on or after _________, ____ of a
change in law or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority, there is more than an unsubstantial risk that the Trust is or, within
90 days after such date, will be considered an "investment company" which is
required to be registered under the Investment Company Act of 1940.
"Trust Special Event" means the occurrence of a Trust Investment
Company Event or a Trust Tax Event.
"Trust Tax Event" means the receipt by the Property Trustee of
the Trust, on behalf of the Trust, of an opinion of counsel, rendered by a law
firm having a national tax and securities practice (which opinion of counsel
shall not have been rescinded by such law firm) to the effect that there has
been (a) an amendment to, change or announced proposed change in the laws (or
any regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, (b) a judicial decision interpreting
applying or clarifying such laws or regulations, (c) an administrative
pronouncement or action that represents an official position (including a
clarification of an official position) of the governmental authority or
regulatory body making such administrative pronouncement or taking such action,
or (d) a
<PAGE> 83
threatened challenge asserted in connection with an audit of the Company or any
of its subsidiaries, or the Trust, or a threatened challenge asserted in writing
against any other taxpayer that has raised capital through the issuance of
securities that are substantially similar to the Debentures or the Trust
Preferred Securities, which amendment or change is adopted or which decision,
pronouncement or proposed change is announced or which action, clarification or
challenge occurs on or after ________, ____ and that there is more than an
insubstantial risk that (a) the Trust is or, within 90 days after such date,
will be subject to United States federal income tax with respect to income
accrued or received on the Debentures, (b) the Trust is or, within 90 days after
such date, will be subject to more than a de minimis amount of other taxes,
duties, assessments or other governmental charges or (c) interest payable by the
Company on the Debentures is not or, within 90 days after such date, will not be
deductible for United States federal income taxes.
The Holder of this Debenture has the right, exercisable at any
time through the close of business (New York time) on the Business Day
immediately preceding the maturity of the Debentures (or, in the case of this
Debenture being called for redemption, prior to the close of business on the
Business Day prior to the corresponding redemption date), to convert the
principal amount thereof (or any portion thereof that is an integral multiple of
$__) into shares of Common Stock at the initial conversion rate of ______ shares
of Common Stock (for each $__ in aggregate principal amount of the Debenture
(equivalent to a Conversion Price of $_____ per share of Common Stock, subject
to adjustment under certain circumstances. To convert this Debenture, the Holder
hereof must (a) complete and sign a notice of conversion substantially in the
form attached hereto, (b) surrender this Debenture to a Conversion Agent, (c)
furnish appropriate endorsements or transfer documents if required by the
Conversion Agent and (d) pay any transfer or similar tax, if required.
If an Event of Default with respect to the Debentures shall
occur and be continuing, the principal of the Debentures may be declared due and
payable in the manner, with the effect and subject to the conditions provided in
the Indenture.
The Indenture contains provisions that relieve the Company from
the obligation to comply with certain restrictive covenants of the Indenture and
for satisfaction and discharge at any time of the entire indebtedness of this
Debenture upon compliance by the Company with certain conditions set forth in
the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Debentures at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Outstanding Debentures (voting as
one class). The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Outstanding Debentures (voting as
one class), on behalf of the Holders of all Debentures, to waive compliance by
the Company with certain provisions of the Indenture. The Indenture permits,
with certain exceptions as therein provided, the Holders of a majority in
principal amount of the Debentures then Outstanding to waive defaults under the
Indenture with respect to the Debentures and their consequences. Any such
<PAGE> 84
consent or waiver by the Holder of this Debenture shall be conclusive and
binding upon such Holder and upon all future Holders of this Debenture and of
any Debenture issued upon the registration of transfer thereof or in exchange
therefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Debenture at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Debenture is registerable in the
Security Register, upon surrender of this Debenture for registration of transfer
at the office or agency of the Company in New York, New York, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees. No service charge shall be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment of this Debenture for registration of
transfer, the Company, the Trustee and any of their respective agents may treat
the Person in whose name this Debenture is registered as the owner hereof for
all purposes, whether or not this Debenture shall be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Debentures are issuable only in registered form without
coupons in denominations of $__ and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth,
Debentures are exchangeable for a like aggregate principal amount of Debentures
of a different authorized denomination, as requested by the Holder surrendering
the same.
The Company and, by its acceptance of this Debenture or a
beneficial interest herein, the Holder of, and any Person that acquires a
beneficial interest in, this Debenture agree that for United States federal,
state and local tax purposes it is intended that this Debenture constitutes
indebtedness.
No recourse under or upon any obligation, covenant or agreement
of or contained in the Indenture or of or contained in any of the Debentures, or
for any claim based thereon or otherwise in respect thereof, or in any
Debenture, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer, employee or
director, as such, past, present or future, of the Company or of any successor
Person, either directly or through the Company or any successor Person, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment, penalty or
<PAGE> 85
otherwise; it being expressly understood by each Holder that all such liability
is hereby expressly waived and released by the acceptance hereof and as a
condition of, and as part of the consideration for, the issuance of the
Debentures and the execution of the Indenture.
THE DEBENTURES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
ASSIGNMENT FORM
To assign this Debenture or the capital stock issuable upon
conversion of this Debenture in the event the Notice of Conversion is given,
fill in the form below:
(I) or (we) assign or transfer this Debenture or such capital
stock (as the case may be) to
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ___________________ agent to transfer this Debenture or
such capital stock on the books of the Company. The agent may substitute another
to act for him.
Your
Signature:____________________________________________________________________
(Sign exactly as your name appears on the other side of this Debenture)
Date:__________________________
<PAGE> 86
SIGNATURES
Signature Guarantee: * ____________________________________________
- ----------------------
* Signature must be guaranteed by an institution which is a member
of one of the following recognized Signature Guaranty Programs:
(i) The Securities Transfer Agent Medallion Program (STAMP);
(ii) The New York Stock Exchange Medallion Program (MSP); (iii)
The Stock Exchange Medallion Program (SEMP); or (iv) in such
other guarantee programs acceptable to the Trustee.
<PAGE> 87
FORM OF NOTICE OF CONVERSION
To: American Classic Voyages Co.
The Bank of New York, as Conversion Agent
The undersigned owner of this Debenture hereby irrevocably
exercises the option to convert this Debenture, or the portion designated, and
directs that the shares issuable and deliverable upon conversion, together with
any check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in the
assignment above. If shares are to be issued in the name of a person other than
the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
Date:_______________________
in whole _________
in part __________ Portions of Debenture to
be converted ($__ or integral multiples
thereof):
$
---------------------------------------
Signature (for conversion only):
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
Please Print or Typewrite Name and
Address, Including Zip Code, and
Social Security or Other Identifying
Number
----------------------------------------
----------------------------------------
Signature Guarantee: *
----------------------------------
- ----------------
* Signature must be guaranteed by an institution which is a member
of one of the following recognized Signature Guaranty Programs:
(i) The Securities Transfer Agent Medallion Program (STAMP);
(ii) The New York Stock Exchange Medallion Program (MSP); (iii)
The Stock Exchange Medallion Program (SEMP); or (iv) in such
other guarantee programs acceptable to the Trustee.
<PAGE> 88
SCHEDULE
The notations on the following table evidence decreases in the
principal sum of this Debenture resulting from conversions or increases
resulting from the exercise of the Over-Allotment Option. As used herein, the
term "Over-Allotment Option" means that certain option to purchase up to _______
additional Trust Preferred Securities granted by the Trust to the Underwriters
pursuant to the Underwriting Agreement, dated ________, ____, among the Company,
the Trust and the Underwriters (as defined in the Indenture).
Principal Sum
Decrease of Increase in remaining after Decrease Notation Made by
Principal Sum or Increase Security Registrar
<PAGE> 1
EXHIBIT 4.3
DECLARATION OF TRUST
of
AMCV CAPITAL TRUST I
DECLARATION OF TRUST, dated as of January 12, 2000, between
American Classic Voyages Co., a Delaware corporation, as "Sponsor", Randall L.
Talcott, as "Administrative Trustee," and The Bank of New York (Delaware), as
"Delaware Trustee" (the Administrative Trustee and the Delaware Trustee being
collectively referred to as the "Trustees"). The Sponsor, the Administrative
Trustee and the Delaware Trustee hereby agree as follows:
1. The trust created hereby shall be known as AMCV Capital
Trust I (the "Trust"), in which name the Trustees, or the Sponsor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets
over to the Trust the sum of $10. The Trustees hereby acknowledge receipt of
such amount in trust from the Sponsor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Sponsor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. ss. 3801 et seq. (the "Business Trust Act"), and
that this document constitutes the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party, to provide for
the contemplated operation of the Trust created hereby and the issuance of
Preferred Securities and Common Securities by the Trust on terms satisfactory to
each such party. Prior to the execution and delivery of such amended and
restated Declaration of Trust, the Trustees shall not have any duty or
obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise. Notwithstanding the foregoing, the Trustees may
take all actions they shall deem necessary to effect the transactions
contemplated herein.
4. The Sponsor is hereby authorized, in its sole discretion,
(i) to file with the Securities and Exchange Commission (the "Commission") and
to execute, in the case of the 1933 Act Registration Statement and 1934 Act
Registration Statement (as herein defined), on behalf of the Trust, (a) the 1933
Act Registration Statement, including pre-effective or post-effective amendments
to such Registration Statement (the "1933 Act Registration Statement"), relating
to the registration under the Securities Act of 1933, as amended (the "1933
Act"), of the Preferred
<PAGE> 2
Securities of the Trust, (b) any preliminary prospectus or prospectus supplement
thereto relating to the Preferred Securities required to be filed under the 1933
Act, and (c) if required, a Registration Statement on Form 8-A or other
appropriate form (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under the Securities
Exchange Act of 1934, as amended; (ii) to file with any securities exchange (the
"Exchange") and execute on behalf of the Trust a listing application and all
other applications, statements, certificates, agreements and other instruments
as shall be necessary or desirable to cause the Preferred Securities to be
listed on the Exchange; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the securities
or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of the Trust,
may deem necessary or desirable; (iv) to execute, deliver and perform on behalf
of the Trust, an underwriting agreement with the Sponsor and the underwriter or
underwriters of the Preferred Securities of the Trust; (v) to execute, deliver
and perform a depository agreement with the initial clearing agency, relating to
the Preferred Securities, and (vi) to apply for and obtain a tax identification
number for the Trust.
In the event that any filing referred to in this Section 4 is
required by the rules and regulations of the Commission, PORTAL or state
securities or Blue Sky laws to be executed on behalf of the Trust by the
Trustees, the Trustees, in their capacities as trustees of the Trust, are hereby
authorized and directed to join in any such filing and to execute on behalf of
the Trust any and all of the foregoing, it being understood that the
Administrative Trustee and the Delaware Trustee shall not be required to join in
any such filing or execute on behalf of the Trust any such document unless
required by the rules and regulations of the Commission, PORTAL or state
securities or Blue Sky laws. In connection with all of the foregoing, the
Sponsor hereby constitutes and appoints Jordan B. Allen, as its true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for the Sponsor or in the Sponsor's name, place and stead, in any and all
capacities, to sign any and all amendments (including all pre-effective and
post-effective amendments) to the 1933 Act Registration Statement and any 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
any other documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Sponsor might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
<PAGE> 3
6. The Trustees shall initially be the only trustees of the
Trust. Thereafter, the Sponsor may increase or decrease (but not below one) the
number of trustees of the Trust by executing a written instrument fixing such
number; provided, however, that so long as it is required by the Business Trust
Act, one trustee of the Trust shall be either a natural person who is a resident
of the State of Delaware or an entity other than a natural person that has its
principal place of business in the State of Delaware and that, in either case,
otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Sponsor is entitled to appoint or remove without cause any
trustee at any time. The Trustees may resign upon thirty days' prior notice to
the Sponsor.
7. This Declaration of Trust shall be governed by, and
construed in accordance with, the laws of the State of Delaware (without regard
to conflict of laws principles).
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year first above
written.
AMERICAN CLASSIC VOYAGES CO., as Sponsor
By: /s/ Jordan B. Allen
------------------------------
Name: Jordan B. Allen
Title: Executive Vice President
The Bank of New York (Delaware), as Delaware Trustee
By: /s/ Mary Jane Morrissey
------------------------------
Name: Mary Jane Morrissey
Title: Authorized Signatory
By: /s/ Randall L. Talcott
------------------------------
Name: Randall L. Talcott
Title: Administrative Trustee
January 7, 2000 (9:08am)
<PAGE> 1
EXHIBIT 4.4
CERTIFICATE OF TRUST
of
AMCV CAPITAL TRUST I
The undersigned, being the trustees of AMCV Capital Trust I
(the "Trust"), desiring to form a business trust under the Delaware Business
Trust Act (12 Del. C.ss.3801 et seq.) hereby certify as follows:
1. The name of the business trust being formed hereby is
"AMCV Capital Trust I".
2. The name and business address of the trustee of the Trust
with a principal place of business in the State of Delaware is The Bank of New
York (Delaware), White Clay Center - Route 272, Newark, Delaware 19711.
3. This Certificate of Trust shall be effective upon the
filing of this Certificate of Trust.
IN WITNESS WHEREOF, the undersigned have executed this
Certificate of Trust as of the 12th day of January, 2000.
The Bank of New York (Delaware), as Trustee
By: /s/ Mary Jane Morrissey
------------------------------
Name: Mary Jane Morrissey
Title: Authorized Signatory
/s/ Randall L.Talcot
----------------------------------
Randall L. Talcott, as Trustee
<PAGE> 1
EXHIBIT 4.5
================================================================================
AMENDED AND RESTATED
DECLARATION OF TRUST
AMONG
AMERICAN CLASSIC VOYAGES CO.
AS SPONSOR,
THE BANK OF NEW YORK
AS PROPERTY TRUSTEE,
THE BANK OF NEW YORK (DELAWARE),
AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES
NAMED HEREIN,
--------------------
DATED AS OF __________, 2000
--------------------
AMCV CAPITAL TRUST I
================================================================================
<PAGE> 2
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of Trust Indenture Act Section of
of 1939, as amended Declaration
<S> <C>
310 (a)......................................................................6.3(a)
(c)................................................................Inapplicable
311 (c)................................................................Inapplicable
312 (a)......................................................................2.2(a)
(b)......................................................................2.2(b)
313 ............................................................................2.3
314 (a).........................................................................2.4
(b)................................................................Inapplicable
(c).........................................................................2.5
(d)................................................................Inapplicable
(f)................................................................Inapplicable
315 (a)......................................................................3.9(b)
(c)......................................................................3.9(a)
(d)......................................................................3.9(a)
316 (a).....................................................................Annex I
(c)......................................................................3.6(e)
</TABLE>
* This Cross-Reference Table does not constitute part of the Declaration
and shall not affect the interpretation of any of its terms or
provisions.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I INTERPRETATION AND DEFINITIONS.....................................................................-2-
SECTION 1.1 Definitions....................................................................................-2-
ARTICLE II TRUST INDENTURE ACT...............................................................................-13-
SECTION 2.1 Trust Indenture Act; Application..............................................................-13-
SECTION 2.2 Lists of Holders of Trust Securities..........................................................-14-
SECTION 2.3 Reports by the Property Trustee...............................................................-14-
SECTION 2.4 Periodic Reports to Property Trustee..........................................................-14-
SECTION 2.5 Evidence of Compliance with Conditions Precedent..............................................-15-
SECTION 2.6 Trust Enforcement Events; Waiver..............................................................-15-
SECTION 2.7 Trust Enforcement Event; Notice...............................................................-16-
ARTICLE III ORGANIZATION......................................................................................-17-
SECTION 3.1 Name..........................................................................................-17-
SECTION 3.2 Office........................................................................................-17-
SECTION 3.3 Purpose.......................................................................................-17-
SECTION 3.4 Authority.....................................................................................-17-
SECTION 3.5 Title to Property of the Trust................................................................-18-
SECTION 3.6 Powers and Duties of the Administrative Trustees..............................................-18-
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees..........................................-21-
SECTION 3.8 Powers and Duties of the Property Trustee.....................................................-22-
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee...................................-24-
SECTION 3.10 Certain Rights of the Property Trustee........................................................-26-
SECTION 3.11 Delaware Trustee..............................................................................-28-
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
SECTION 3.12 Execution of Documents........................................................................-29-
SECTION 3.13 Not Responsible for Recitals or Issuance of Trust Securities..................................-29-
SECTION 3.14 Duration of Trust.............................................................................-29-
SECTION 3.15 Mergers.......................................................................................-29-
SECTION 3.16 Compensation..................................................................................-31-
ARTICLE IV SPONSOR...........................................................................................-32-
SECTION 4.1 Responsibilities of the Sponsor...............................................................-32-
SECTION 4.2 Indemnification and Expenses of the Trustee...................................................-32-
ARTICLE V TRUST COMMON SECURITIESHOLDER.....................................................................-33-
SECTION 5.1 Company's Purchase of Trust Common Securities.................................................-33-
SECTION 5.2 Covenants of the Trust Common Securities Holder...............................................-33-
ARTICLE VI TRUSTEES..........................................................................................-34-
SECTION 6.1 Number of Trustees............................................................................-34-
SECTION 6.2 Delaware Trustee..............................................................................-34-
SECTION 6.3 Property Trustee; Eligibility.................................................................-34-
SECTION 6.4 Qualifications of Administrative Trustees and Delaware
Trustee Generally.............................................................................-35-
SECTION 6.5 Administrative Trustees.......................................................................-36-
SECTION 6.6 Delaware Trustee..............................................................................-36-
SECTION 6.7 Appointment, Removal and Resignation of Trustees..............................................-36-
SECTION 6.8 Vacancies among Trustees......................................................................-38-
SECTION 6.9 Effect of Vacancies...........................................................................-38-
SECTION 6.10 Meetings......................................................................................-38-
</TABLE>
<PAGE> 5
<TABLE>
<S> <C>
SECTION 6.11 Delegation of Power...........................................................................-39-
SECTION 6.12 Merger, Conversion, Consolidation or Succession toBusiness....................................-39-
ARTICLE VII DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION...................................................-40-
SECTION 7.1 Distributions.................................................................................-40-
SECTION 7.2 Redemption....................................................................................-41-
SECTION 7.3 Conversion....................................................................................-45-
SECTION 7.4 Trust Special Event Exchange or Redemption....................................................-47-
SECTION 7.5 Payment Procedures............................................................................-49-
SECTION 7.6 Tax Reporting, Etc............................................................................-50-
SECTION 7.7 Payment of Additional Sums by the Property Trustee............................................-50-
SECTION 7.8 Payments under Indenture......................................................................-50-
ARTICLE VIII ISSUANCE OF TRUST SECURITIES......................................................................-51-
SECTION 8.1 Designation and General Provisions Regarding TrustSecurities..................................-51-
SECTION 8.2 Voting Rights of Trust Preferred Securities...................................................-53-
SECTION 8.3 Voting Rights of Trust Common Securities......................................................-55-
SECTION 8.4 Paying Agent..................................................................................-57-
SECTION 8.5 Listing.......................................................................................-57-
SECTION 8.6 Acceptance of Trust Guarantees................................................................-57-
ARTICLE IX TERMINATION AND LIQUIDATION OF THE TRUST..........................................................-57-
SECTION 9.1 Termination of Trust..........................................................................-57-
SECTION 9.2 Liquidation Distribution Upon Termination and Dissolution
of the Trust..................................................................................-58-
</TABLE>
<PAGE> 6
<TABLE>
<S> <C>
ARTICLE X TRANSFER OF INTERESTS.............................................................................-59-
SECTION 10.1 Transfer and Exchange of Trust Securities.....................................................-59-
SECTION 10.2 Transfer of Certificates......................................................................-60-
SECTION 10.3 Deemed Security Holders.......................................................................-60-
SECTION 10.4 Book Entry Interests..........................................................................-60-
SECTION 10.5 Notices to Clearing Agency....................................................................-61-
SECTION 10.6 Appointment of Successor Clearing Agency......................................................-62-
SECTION 10.7 Definitive Trust Preferred Security Certificates..............................................-62-
SECTION 10.8 Mutilated, Destroyed, Lost or Stolen Certificates.............................................-63-
SECTION 10.9 Cancellation..................................................................................-63-
SECTION 10.10 Appointment of Registrar and Transfer Agent...................................................-63-
ARTICLE XI LIMITATION OF LIABILITY OF HOLDERS OF TRUST SECURITIES, TRUSTEES OR OTHERS........................-64-
SECTION 11.1 Liability.....................................................................................-64-
SECTION 11.2 Exculpation...................................................................................-64-
SECTION 11.3 Fiduciary Duty................................................................................-65-
SECTION 11.4 Indemnification...............................................................................-66-
SECTION 11.5 Outside Businesses............................................................................-69-
ARTICLE XII ACCOUNTING........................................................................................-69-
SECTION 12.1 Fiscal Year...................................................................................-69-
SECTION 12.2 Certain Accounting Matters....................................................................-69-
SECTION 12.3 Banking.......................................................................................-70-
SECTION 12.4 Withholding...................................................................................-70-
</TABLE>
<PAGE> 7
<TABLE>
<S> <C>
ARTICLE XIII AMENDMENTS AND MEETINGS...........................................................................-71-
SECTION 13.1 Amendments....................................................................................-71-
SECTION 13.2 Meetings of the Holders of Trust Securities; Action by
Written Consent...............................................................................-73-
ARTICLE XIV REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE..........................................-75-
SECTION 14.1 Representations and Warranties of Property Trustee............................................-75-
SECTION 14.2 Representations and Warranties of Delaware Trustee............................................-76-
ARTICLE XV MISCELLANEOUS.....................................................................................-77-
SECTION 15.1 Notices.......................................................................................-77-
SECTION 15.2 Governing Law.................................................................................-78-
SECTION 15.3 Intention of the Parties......................................................................-79-
SECTION 15.4 Acceptance of Terms of Declaration, Trust Guarantees and
Subordinated Indenture........................................................................-79-
SECTION 15.5 Headings......................................................................................-79-
SECTION 15.6 Successors and Assigns........................................................................-79-
SECTION 15.7 Partial Enforceability........................................................................-79-
SECTION 15.8 Counterparts..................................................................................-80-
SECTION 15.9 Holding Company Formation, Consolidations and Mergers.........................................-80-
</TABLE>
<PAGE> 8
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
AMCV CAPITAL TRUST I
AMENDED AND RESTATED DECLARATION OF TRUST (the "Declaration"), dated
and effective as of __________, 2000, by the Trustees (as defined herein), by
the Sponsor (as defined herein) and by the several Holders (as defined herein),
from time to time, of undivided beneficial interests in the assets of the Trust
(as defined herein) to be issued pursuant to this Declaration.
R E C I T A L S:
WHEREAS, certain of the Trustees and the Sponsor declared and
established the AMCV CAPITAL TRUST I (the "Trust"), a trust under the Business
Trust Act (as defined herein), pursuant to a Declaration of Trust dated as of
January 12, 2000 (the "Original Declaration") and a Certificate of Trust filed
with the Secretary of State of the State of Delaware on January 12, 2000, for
the sole purpose of issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust and investing the
proceeds thereof in the Subordinated Debentures (as defined herein); and
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
desire to amend and restate in its entirety each and every term and provision of
the Original Declaration;
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the Holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
<PAGE> 9
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
For all purposes of this Declaration, unless the context otherwise
requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Exhibits are to Articles and Sections and Exhibits to this Declaration unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa;
(g) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" with respect
to any computation required or permitted hereunder shall mean such accounting
principles which are generally accepted at the date or time of such computation;
and
(h) each reference herein to a rule or form of the Commission shall
mean such rule or form and any rule or form successor thereto, in each case as
amended from time to time.
"Additional Amount" means, with respect to the Trust Securities, the
amount of Additional Interest (as defined in the Subordinated Indenture) paid by
the Sponsor on the Subordinated Debentures.
"Additional Sums" means, with respect to the Trust Securities, the
additional amounts as may be necessary in order that the amount of Distributions
then due and payable by the Trust on the outstanding Trust Preferred Securities
and Trust Common Securities shall not be reduced as a result of any additional
taxes, duties and governmental charges to which the Trust has become subject.
<PAGE> 10
"Administrative Trustee" has the meaning set forth in Section 6.1(b)
hereof.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act of 1933, as amended, or any successor rule thereunder;
provided, however, that an Affiliate of the Sponsor shall not be deemed to
include the Trust.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Board of Directors" means the board of directors of the Company, or
the executive or any other committee of that board duly authorized to act in
respect thereof.
"Book Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as set forth in Section 10.4 of this
Declaration.
"Business Day" means any day other than a day on which banking
institutions in The City of New York are authorized or required by law or
executive order to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. Sections 3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Certificate" means a Trust Common Security Certificate or a Trust
Preferred Security Certificate.
"Change in 1940 Act Law" means, as a result of the occurrence on or
after the date of the original issuance of the Trust Preferred Securities of a
change in law or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority, the Trust is or will be considered an "investment company" which is
required to be registered under the 1940 Act.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depository
for the Trust Preferred Securities and in whose name or in the name of a nominee
of that organization shall be registered a Global Certificate and which shall
undertake to effect book entry transfers and pledges of beneficial interests in
the Trust Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of interest in securities
deposited with the Clearing Agency.
"Closing Date" means the first Time of Delivery (as defined in the
Underwriting Agreement), which date is also the date of execution and delivery
of this Declaration.
"Closing Price" means, with respect to any shares of capital stock, on
any day the
<PAGE> 11
reported last sale price on such day or, in case no sale takes place on such
day, the average of the reported closing bid and asked prices in each on the
principal national securities exchange or quotation system on which such capital
stock is listed or admitted to trading or, if not listed or admitted to trading
on any national securities exchange or quotation system, the average of the
closing bid and asked prices of such capital stock in the over-the-counter
market on the day in question as reported by the National Quotation Bureau
Incorporated, or a similar generally accepted reporting service, or, if not so
available in such manner, as furnished by the NASD member firm selected from
time to time by the Board of Directors for that purpose or, if not so available
in such manner, as otherwise determined in good faith by the Board of Directors.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation.
"Commission" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act, as
amended, or, if at any time after the execution of this Declaration such
Commission is not existing or performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such time.
"Common Security Holder of the Trust" means the Company in its capacity
as Holder of the Trust Common Securities.
"Common Stock" includes any stock of any class of any Person which has
no preference in respect of dividends or amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of such Person
and which is not subject to redemption by such Person.
"Company" means American Classic Voyages Co., and any successor to such
entity by merger, consolidation or similar transaction.
"Company Indemnified Person" means (a) any Administrative Trustee; (b)
any Affiliate of any Administrative Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Administrative Trustee; or (d) any officer, director, shareholder, member,
partner, employee, representative or agent of the Trust or its Affiliates.
"Compounded Distributions" has the meaning set forth in Section 7.1(a).
"Conversion Agent" has the meaning specified in Section 7.3.
"Conversion Date" has the meaning specified in Section 7.3.
"Conversion Expiration Date" means the close of business on the
Business Day prior to the maturity date of the Subordinated Debentures, or in
the case of Trust Preferred Securities called for redemption, the close of
business on the Business Day prior to the Debenture Redemption Date.
<PAGE> 12
"Conversion Price" has the meaning specified in Section 7.3.
"Corporate Trust Office" means the principal corporate trust office of
the Property Trustee in the Borough of Manhattan, the City of New York, which
office at the date hereof is located at ____________________.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Trust Securities.
"Current Market Price," with respect to the Common Stock of the
Sponsor, means the average of last reported sale price, regular way, for the 10
Trading Days ending on the date of determination, or, if no sale takes place on
any such day, the average of the reported closing bid and asked prices on such
day(s), regular way, in either case as reported on the principal national
securities exchange or quotation system on which such Common Stock is listed or
admitted to trading, or, if not listed or admitted to trading or quoted on any
national securities exchange or quotation system, the average closing bid and
asked prices of such Common Stock in the over-the-counter market for the 10
Trading Days in question as reported by the National Quotation Bureau
Incorporated, or a similar generally accepted reporting service, or, if not so
available in such manner, as furnished by any member firm of the National
Association of Securities Dealers, Inc. selected from time to time by the Board
of Directors for that purpose or, if not so available in such manner, as
otherwise determined in good faith by the Board of Directors. As used herein,
the term "Trading Day" shall mean a day on which the principal national
securities exchange on which the Common Stock is listed or admitted to trading
is open for the transaction of business or, if the Common Stock is not listed or
admitted to trading on any national securities exchange, a Business Day.
"Debenture Event of Default" means an "Event of Default" as defined in
the Subordinated Indenture.
"Debenture Redemption Date" means, with respect to any Subordinated
Debentures to be redeemed under the Subordinated Indenture, the date fixed for
redemption under the Subordinated Indenture.
"Declaration" means this Amended and Restated Declaration of Trust, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Declaration, any such modification, amendment or supplement,
and the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this Declaration.
"Definitive Trust Preferred Security Certificates" has the meaning set
forth in Section 10.4 of this Declaration.
"Delaware Trustee" has the meaning set forth in Section 6.2 of this
Declaration.
<PAGE> 13
"DGCL" means the General Corporation Law of the State of Delaware.
"Distributions" has the meaning set forth in Section 7.1(a) of this
Declaration.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
11.4(b) of this Declaration.
"Fiscal Period" means a calendar quarter ending on March 31, June 30,
September 30 and December 31 of any Fiscal Year.
"Fiscal Year" has the meaning set forth in Section 12.1 of this
Declaration.
"Global Certificate" has the meaning set forth in Section 10.4 of this
Declaration.
"Holder" means a Person in whose name a Certificate representing a
Trust Security or Trust Securities is registered, such Person being a beneficial
owner within the meaning of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Investment Company" means an investment company as defined in the 1940
Act.
"Legal Action" has the meaning set forth in Section 3.6(h) of this
Declaration.
"List of Holders" has the meaning set forth in Section 2.2(a) of this
Declaration.
"Liquidation Amount" means an amount with respect to the assets of the
Trust equal to $50 per Trust Security.
"Majority in Liquidation Amount of the Trust Securities" means, except
as provided in the terms of the Trust Preferred Securities or by the Trust
Indenture Act, Holder(s) of outstanding Trust Securities voting together as a
single class or, as the context may require, Holders of outstanding Trust
Preferred Securities or Holders of outstanding Trust Common Securities voting
separately as a class, who are the record owners of more than 50% of the
aggregate Liquidation Amount of all outstanding Trust Securities of the relevant
class.
"Ministerial Action" means, a ministerial action (such as filing a form
or making an election or pursuing some other similar reasonable measure) which
in the sole judgment of the Company has or will cause no adverse effect on the
Trust, the Company or the holders of the
<PAGE> 14
Trust Securities and will involve no material cost.
"Nasdaq" means the National Association of Securities Dealers Automated
Quotation System.
"Notice of Conversion" means the notice given by a Holder of Trust
Securities to the Conversion Agent directing the Conversion Agent to exchange
such Trust Security for Subordinated Debentures and to convert such Subordinated
Debentures into Common Stock of the Company on behalf of such Holder. The form
of such notice is included in the Trust Common Securities Certificate and Trust
Preferred Securities Certificate or, with respect to Trust Securities evidenced
by Book-Entry Interests only, substantially in the form set forth in Exhibit C.
"1940 Act" means the Investment Company Act of 1940, as amended from
time to time, or any successor legislation.
"Officers' Certificate" means, with respect to any Person (who is not
an individual), a certificate signed by the Chairman of the Board, the
President, a Vice President or the Treasurer, and by an Assistant Treasurer, the
Secretary or an Assistant Secretary of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Declaration shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Sponsor, and who may be an
employee of any thereof, and who shall be acceptable to the Property Trustee.
Any Opinion of Counsel delivered with respect to compliance with a condition or
covenant provided for in this Declaration shall include:
(a) a statement that each individual signing the Opinion of Counsel has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each individual in rendering the Opinion of
Counsel;
<PAGE> 15
(c) a statement that each individual has made such examination or
investigation as is necessary to enable such individual to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
"Optional Redemption Price" means, except as set forth below, with
respect to the Trust Preferred Securities, the following percentages of the
Liquidation Amounts thereof, and accumulated and unpaid Distributions, if any,
to the date fixed for redemption if redeemed during the 12-month period
commencing ________________, 2004 in each of the following years indicated:
<TABLE>
<CAPTION>
YEAR REDEMPTION PRICE YEAR REDEMPTION PRICE
- ----- ---------------- ---- ----------------
<S> <C> <C> <C>
2004 % 2008 %
2005 % 2009 %
2006 % 2010 and thereafter 100%
2007 %
</TABLE>
In the event of a redemption of Trust Securities upon the occurrence or
continuance of a Trust Tax Event, Trust Securities shall be redeemed at the
Optional Redemption Price of $50 per Trust Security and all accumulated and
unpaid Distributions, if any, to the date fixed for redemption.
In the event of a redemption of Trust Securities pursuant to Section
7.2(a), Trust Securities shall be redeemed as the redemption price specified
therein.
"Over-Allotment Option" means the option granted by the Trust to the
several underwriters to purchase up to _______ additional Trust Preferred
Securities solely to cover over-allotments pursuant to the Underwriting
Agreement.
"Payment Amount" has the meaning set forth in Section 7.1(a) of this
Declaration.
"Paying Agent" has the meaning set forth in Section 3.8(g) of this
Declaration.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Property Account" has the meaning set forth in Section 3.8(c) of this
Declaration.
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth
<PAGE> 16
in Section 6.3 of this Declaration.
"Pro Rata" means, in reference to any distributions on or redemptions
of Trust Securities or the distribution of Subordinated Debentures or any other
payment with respect to Trust Securities in connection with a Trust Special
Event or liquidation of the Trust, pro rata to each Holder of Trust Securities
according to the aggregate Liquidation Amount of the Trust Securities held by
the relevant Holder in relation to the aggregate Liquidation Amount of all Trust
Securities outstanding. In any proration in connection with a redemption, the
Property Trustee may make such adjustments as may be appropriate in order that
only Trust Securities in authorized denominations shall be redeemed.
"Quorum" means a majority of the Administrative Trustees or, if there
are only two Administrative Trustees, both of them.
"Redemption Date" means with respect to any Trust Security to be
redeemed, each Debenture Redemption Date.
"Redemption Price" means, with respect to any Trust Security, $50 per
Trust Security, plus accumulated and unpaid Distributions (including any
Additional Sums and unpaid Additional Amounts) to the date of redemption.
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any Person that owns,
directly or indirectly, 10% of the outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the Property Trustee, the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any senior trust officer, any trust officer or assistant
trust officer, or any other officer of the Trust Preferred Guarantee Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Rule 3a-5" means Rule 3a-5 under the 1940 Act.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, or any successor legislation.
"Sponsor" means the Company or any successor entity in a merger,
consolidation or amalgamation, in its capacity as sponsor of the Trust.
"Subordinated Debenture Trustee" means the "Trustee," as defined in the
<PAGE> 17
Subordinated Indenture, initially The Bank of New York.
"Subordinated Debentures" means up to $__________ aggregate principal
amount ($ aggregate principal amount if the Over-Allotment Option is exercised
in full) of the Sponsor's _____% Subordinated Convertible Debentures due
__________, 2030 issued or to be issued pursuant to the Subordinated Indenture.
"Subordinated Indenture" means the Subordinated Indenture, dated as of
__________, 2000, between the Sponsor and the Subordinated Debenture Trustee, as
trustee, as amended or supplemented from time to time.
"Successor Common Securities" has the meaning set forth in Section
3.15(b)(vii) of this Declaration.
"Successor Delaware Trustee" has the meaning set forth in Section
6.7(b) of this Declaration.
"Successor Entity" has the meaning set forth in Section 3.15 of this
Declaration.
"Successor Property Trustee" has the meaning set forth in Section
6.7(b) of this Declaration.
"Successor Trust Securities" has the meaning set forth in Section 3.15
of this Declaration.
"Super Majority" has the meaning set forth in Section 2.6(a)(ii) of
this Declaration.
"Tax Action" means (a) an amendment to, change in or announced proposed
change in the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, (b) a judicial
decision interpreting, applying or clarifying such laws or regulations, (c) an
administrative pronouncement or action that represents an official position
(including a clarification of an official position) of the governmental
authority or regulatory body making such administrative pronouncement or taking
such action, or (d) a threatened challenge asserted in connection with an audit
of the Company or any of its subsidiaries, or the Trust, or a threatened
challenge asserted in writing against any other taxpayer that has raised capital
through the issuance of securities that are substantially similar to the
Subordinated Debentures, or the Trust Preferred Securities, which amendment or
change is adopted or which decision, pronouncement or proposed change is
announced or which action, clarification or challenge occurs on or after the
date of the original issuance of the Trust Preferred Securities.
"10% in Liquidation Amount of the Trust Securities" means, except as
provided in the terms of the Trust Preferred Securities or by the Trust
Indenture Act, Holder(s) of outstanding Trust Securities voting together as a
single class or, as the context may require, Holders of outstanding Trust
Preferred Securities or Holders of outstanding Trust Common
<PAGE> 18
Securities voting separately as a class, who are the record owners of 10% or
more of the aggregate Liquidation Amount of all outstanding Trust Securities of
the relevant class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury Department, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trust Common Security" has the meaning set forth in Section 8.1 of
this Declaration.
"Trust Common Security Certificate" means a definitive certificate in
fully registered form representing a Trust Common Security substantially in the
form of Exhibit A-2.
"Trust Common Securities Guarantee" means the Trust Convertible Common
Securities Guarantee Agreement dated as of __________, 2000, entered into by the
Company, as Guarantor, for the benefit of the holders of the Trust Common
Securities.
"Trust Dissolution Tax Opinion" means an opinion of nationally
recognized independent tax counsel experienced in such matters to the effect
that there has been a Trust Tax Event.
"Trust Enforcement Event" means the occurrence, at any time, of a
Debenture Event of Default.
"Trust Guarantees" means the Trust Common Securities Guarantee and the
Trust Preferred Securities Guarantee, collectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"Trust Investment Company Event" means that the Company shall have
requested and received and shall have delivered to the Property Trustee an
Opinion of Counsel from a firm having a national tax and securities practice and
that is experienced in 1940 Act matters (which Opinion of Counsel shall not have
been rescinded by such law firm) to the effect that as a result of a Change in
1940 Act Law, there is more than an insubstantial risk that the Trust is or,
within 90 days after such date, will be considered an "investment company" which
is required to be registered under the 1940 Act.
"Trust Liquidation" has the meaning set forth in Section 9.2(a) of this
Declaration.
"Trust Liquidation Distribution" has the meaning set forth in Section
9.2(a) of this Declaration.
"Trust Preferred Guarantee Trustee" means the trustee under the Trust
Preferred
<PAGE> 19
Securities Guarantee.
"Trust Preferred Securities Guarantee" means the Trust Convertible
Preferred Securities Guarantee Agreement dated as of __________, 2000, entered
into by the Company, as Guarantor, and the Trust Preferred Guarantee Trustee, as
trustee, for the benefit of the holders of the Trust Preferred Securities.
"Trust Preferred Security" has the meaning set forth in Section 8.1(a)
of this Declaration.
"Trust Preferred Security Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Trust Preferred Security Certificate" means a certificate representing
a Trust Preferred Security substantially in the form of Exhibit A-1.
"Trust Securities" means the Trust Common Securities and the Trust
Preferred Securities.
"Trust Special Event" means a Trust Tax Event or a Trust Investment
Company Event.
"Trust Tax Event" means that the Company shall have requested and
received and shall have delivered to the Property Trustee an Opinion of Counsel
from a firm having a national tax and securities practice (which Opinion of
Counsel shall not have been rescinded by such law firm) that there has been a
Tax Action which relates to any of the items described in (i) through (iii)
below, and that there is more than an insubstantial risk that (i) the Trust is
or, within 90 days after such date, will be subject to United States federal
income tax with respect to income accrued or received on the Subordinated
Debentures, (ii) the Trust is or, within 90 days after such date, will be
subject to more than a de minimis amount of other taxes, duties, assessments or
other governmental charges or (iii) interest payable by the Company on the
Subordinated Debentures is not or, within 90 days after such date, will not be
deductible by the Company for United States federal income tax purposes.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Underwriting Agreement" means that certain Underwriting Agreement,
dated as of __________, 2000, among the Company, the Trust, and the several
underwriters named therein.
<PAGE> 20
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a Trustee
for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Trust Securities.
(a) Each of the Sponsor and the Administrative Trustees on behalf of
the Trust shall provide the Property Trustee (i) within 14 days after each
record date for payment of Distributions, a list, in such form as the Property
Trustee may reasonably require, of the names and addresses of the Holders of the
Trust Securities ("List of Holders") as of such record date, provided, that
neither the Sponsor nor the Administrative Trustees on behalf of the Trust shall
be obligated to provide such List of Holders at any time the List of Holders
does not differ from the most recent List of Holders given to the Property
Trustee by the Sponsor and the Administrative Trustees on behalf of the Trust,
and (ii) at any other time, within 30 days of receipt by the Trust of a written
request for a List of Holders as of a date no more than 14 days before such List
of Holders is given to the Property Trustee. The Property Trustee shall
preserve, in as current a form as is reasonably practicable, all information
contained in Lists of Holders given to it or which it receives in the capacity
as Paying Agent (if acting in such capacity), provided, that the Property
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
(b) The Property Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
<PAGE> 21
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year commencing [May 15, 2000], the
Property Trustee shall provide to the Holders of the Trust Preferred Securities
such reports as are required by Section 313(a) of the Trust Indenture Act, if
any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Property Trustee shall also comply with the requirements of
Section 313 of the Trust Indenture Act. The Sponsor shall promptly notify the
Property Trustee when the Trust Securities are listed for trading on any stock
exchange.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as are required by Section 314 of the Trust Indenture Act (if any)
and the compliance certificate required by Section 314 of the Trust Indenture
Act in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act. Compliance certificates required by Section 314(a)(4) of
the Trust Indenture Act shall be delivered to the Property Trustee annually on
or before 120 days after the end of each fiscal year of the Sponsor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent provided for in this Declaration that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers' Certificate.
SECTION 2.6 Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in Liquidation Amount of Trust
Preferred Securities may, by vote, on behalf of the Holders of all of the
Trust Preferred Securities, waive any past Trust Enforcement Event in
respect of the Trust Preferred Securities and its consequences, provided,
that if the underlying default or event of default:
(i) is not waivable under the Subordinated Indenture, the Trust
Enforcement Event under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of the holders of greater than
a majority (a "Super Majority") in aggregate principal amount of the
Subordinated Debentures to be waived under the Subordinated Indenture,
then, the Trust Enforcement Event under this Declaration may only be
waived by the vote of the Holders of at least the relevant Super
Majority in Liquidation Amount of the Trust Preferred Securities.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section
<PAGE> 22
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Declaration and the Trust Securities, as permitted by the Trust Indenture Act.
Upon such waiver, any such default shall cease to exist, and any Trust
Enforcement Event with respect to the Trust Preferred Securities arising
therefrom shall be deemed to have been cured, for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other default
or Trust Enforcement Event with respect to the Trust Preferred Securities or
impair any right consequent thereon. Any waiver by the Holders of the Trust
Preferred Securities of Trust Enforcement Events with respect to the Trust
Preferred Securities shall also be deemed to constitute a waiver by the Holders
of the Trust Common Securities of any such Trust Enforcement Event with respect
to the Trust Common Securities for all purposes of this Declaration without any
further act, vote, or consent of the Holders of the Trust Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the Trust Common
Securities may, by vote, on behalf of the Holders of all of the Trust
Common Securities, waive any past Trust Enforcement Event with respect to
the Trust Common Securities and its consequences, provided, that if the
underlying default or event of default:
(i) is not waivable under the Subordinated Indenture, except
where the Holders of the Trust Common Securities are deemed to have
waived such Trust Enforcement Event under this Declaration as provided
below in this Section 2.6(b), the Trust Enforcement Event under this
Declaration shall also not be waivable; or
(ii) requires the consent or vote of the holders of a Super
Majority in aggregate principal amount of Subordinated Debentures to be
waived, except where the Holders of the Trust Common Securities are
deemed to have waived such Trust Enforcement Event under the
Declaration as provided below in this Section 2.6(b), then, the Trust
Enforcement Event under this Declaration may only be waived by the vote
of the Holders of at least the relevant Super Majority in Liquidation
Amount of the Trust Common Securities;
provided, further, that each Holder of Trust Common Securities will be deemed to
have waived any such Trust Enforcement Event and all Trust Enforcement Events
with respect to the Trust Common Securities and its consequences if all Trust
Enforcement Events with respect to the Trust Preferred Securities have been
cured, waived or otherwise eliminated, and until such Trust Enforcement Events
have been so cured, waived or otherwise eliminated, the Property Trustee will be
deemed to be acting solely on behalf of the Holders of the Trust Preferred
Securities and only the Holders of the Trust Preferred Securities will have the
right to direct the Property Trustee in accordance with the terms of the Trust
Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu of
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Trust Securities, as permitted
by the Trust Indenture Act. Subject to the foregoing provisions of this Section
2.6(b), upon such waiver, any such default shall cease to exist and any Trust
Enforcement Event with respect to the Trust Common Securities arising therefrom
shall be deemed to have been cured for every purpose of
<PAGE> 23
this Declaration, but no such waiver shall extend to any subsequent or other
default or Trust Enforcement Event with respect to the Trust Common Securities
or impair any right consequent thereon.
SECTION 2.7 Trust Enforcement Event; Notice.
The Property Trustee shall, within 90 days after the occurrence of a
Trust Enforcement Event, transmit by mail, first class postage prepaid, to the
Holders of the Trust Securities, notices of all defaults with respect to the
Trust Securities actually known to a Responsible Officer of the Property Trustee
in its Corporate Trust Office, unless such defaults have been cured before the
giving of such notice (the term "defaults" for the purposes of this Section 2.7
being hereby defined to be Events of Default as defined in the Subordinated
Indenture, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided, that
except for a default in the payment of principal of (or premium, if any) or
interest (including Additional Sums and Additional Amounts, if any) on any of
the Subordinated Debentures or in the payment of any sinking fund installment
established for the Subordinated Debentures, the Property Trustee shall be fully
protected in withholding such notice if and so long as a Responsible Officer of
the Property Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Trust Securities.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "AMCV Capital Trust I," as such name may be modified
from time to time by the Administrative Trustees following written notice to the
Holders of Trust Securities and the other Trustees. The Trust's activities may
be conducted under the name of the Trust or any other name deemed advisable by
the Administrative Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o American
Classic Voyages Co., Two North Riverside Plaza, Chicago, Illinois 60606. On 10
Business Days prior written notice to the Holders of Trust Securities and the
other Trustees, the Administrative Trustees may designate another principal
office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue the
Trust Securities, (b) to invest the proceeds from such sale of the Trust
Securities to acquire the Subordinated Debentures, and (c) except as otherwise
limited herein, to engage in only those other activities necessary or incidental
thereto. The Trust shall not borrow money, issue debt or
<PAGE> 24
reinvest proceeds derived from investments, mortgage or pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Administrative Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Administrative Trustees in accordance with their powers
shall constitute the act of and serve to bind the Trust and an action taken by
the Property Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Declaration.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Subordinated
Debentures and the Property Account or as otherwise provided in this
Declaration, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial ownership interest in the assets
of the Trust.
SECTION 3.6 Powers and Duties of the Administrative Trustees.
The Administrative Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Trust Preferred Securities and the Trust
Common Securities in accordance with this Declaration; provided, however,
that the Trust may issue no more than one series of Trust Preferred
Securities and no more than one series of Trust Common Securities, and,
provided, further, that there shall be no interests in the Trust other than
the Trust Securities, and the issuance of Trust Securities shall be limited
to the Trust Preferred Securities and Trust Common Securities issued on the
Closing Date and the Option Closing Date (as such term is defined in the
Underwriting Agreement), and all Trust Securities issued by the Trust shall
be deemed to have been issued as of the Closing Date;
(b) in connection with the issue and sale of the Trust Preferred
Securities, at the direction of the Sponsor, to:
<PAGE> 25
(i) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Trust Preferred Securities in
any State in which the Sponsor has determined to qualify or register
such Trust Preferred Securities for sale; and
(ii) execute and file an application, prepared by the Sponsor,
to the Nasdaq National Market System or other national stock exchange
for listing upon notice of issuance of any Trust Preferred Securities;
(c) to acquire the Subordinated Debentures with the proceeds of the
sale of the Trust Preferred Securities and the Trust Common Securities;
provided, however, that the Administrative Trustees shall cause legal title
to the Subordinated Debentures to be held of record in the name of the
Property Trustee for the benefit of the Holders of the Trust Preferred
Securities and the Holders of Trust Common Securities;
(d) to give the Sponsor and the Property Trustee prompt written notice
of the occurrence of a Trust Special Event; provided, that the
Administrative Trustees shall consult with the Sponsor before taking or
refraining from taking any Ministerial Action in relation to a Trust Special
Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue
relevant notices to the Holders of Trust Preferred Securities and Holders of
Trust Common Securities as to such actions and applicable record dates;
(f) to give prompt written notice to the Holders of the Trust
Securities of any notice received from the Company of the Company's election
not to make a current, quarterly payment on the Subordinated Debentures;
(g) to take all actions and perform such duties as may be required of
the
<PAGE> 26
Administrative Trustees pursuant to the terms of the Trust Securities;
(h) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee
has the exclusive power to bring such Legal Action;
(i) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(j) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(k) to give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by
any Administrative Trustee;
(l) to incur expenses that are necessary or incidental to carry out any
of the purposes of the Trust and to appoint a Paying Agent or Paying Agents
to serve in accordance with this Declaration;
(m) to act as, or appoint another Person to act as, registrar and
transfer agent for the Trust Securities;
(n) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of
the State of Delaware and of each other jurisdiction in which such existence
is necessary to protect the limited liability of the Holders of the Trust
Preferred Securities or to enable the Trust to effect the purposes for which
the Trust was created;
(p) to take any action, or to take no action, not inconsistent with
this Declaration or with applicable law, that the Administrative Trustees
determine in their discretion to be necessary or desirable in carrying out
the activities of the Trust as set out in this Section 3.6, including, but
not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the 1940 Act;
(ii) cooperating with the Sponsor to ensure that the
Subordinated
<PAGE> 27
Debentures will be treated as indebtedness of the Sponsor for United
States federal income tax purposes; and
(iii) taking no action which would be reasonably likely to cause
the Trust to be classified as an association or a publicly traded
partnership taxable as a corporation for United States federal income
tax purposes; provided, that such action does not adversely affect the
rights, preferences or privileges of the Holders; and
(q) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to
the Trust to be duly prepared and filed by the Administrative Trustees, on
behalf of the Trust.
The Administrative Trustees must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Administrative Trustees shall not take
any action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Administrative Trustees shall have
none of the powers or the authority of the Property Trustee set forth in Section
3.8.
Any expenses incurred by the Administrative Trustees pursuant to this
Section 3.6 shall be reimbursed by the Company.
The Administrative Trustees shall take all actions on behalf of the
Trust that are not specifically required by this Declaration to be taken by any
other Trustee.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the Property
Trustee) shall cause the Trust not to, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall
not and the Trustees (including the Property Trustee) shall cause the Trust
not to:
(i) invest any proceeds received by the Trust from holding the
Subordinated Debentures, but shall distribute all such proceeds to
Holders of Trust Securities pursuant to the terms of this Declaration
and of the Trust Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness or acquire any
securities other than the Subordinated Debentures;
(v) possess any power or otherwise act in such a way as to vary
the
<PAGE> 28
Trust assets or the terms of the Trust Securities in any way
whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the Trust
Securities;
(vii) other than as set forth herein, consent to any amendment,
modification or termination of the Subordinated Indenture or the
Subordinated Debentures where such consent shall be required; and
(viii) other than in connection with the liquidation of the Trust
pursuant to a Trust Special Event or upon conversion or redemption of
all the Trust Securities, file a certificate of cancellation of the
Trust.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Subordinated Debentures shall be owned by
and held of record in the name of the Property Trustee in trust for the
benefit of the Holders of the Trust Securities. The right, title and
interest of the Property Trustee to the Subordinated Debentures shall vest
automatically in each Person who may hereafter be appointed as Property
Trustee in accordance with Section 6.7. To the fullest extent permitted by
law, such vesting and cessation of title shall be effective whether or not
conveyancing documents with regard to the Subordinated Debentures have
been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Subordinated Debentures to the Administrative Trustees or to
the Delaware Trustee (if the Property Trustee does not also act as Delaware
Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders of
the Trust Securities and, upon the receipt of payments of funds made in
respect of the Subordinated Debentures held by the Property Trustee or
the Trust Guarantees, deposit such funds into the Property Account and
make payments to the Holders of the Trust Preferred Securities and
Holders of the Trust Common Securities from the Property Account in
accordance with Section 7.1. Funds in the Property Account shall be
held uninvested until disbursed in accordance with this Declaration.
The Property Account shall be an account that is maintained with a
banking institution (including the Property Trustee if it qualifies
hereunder) authorized to exercise corporate trust powers and having a
combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or state authority; and
(ii) upon written notice of distribution issued by the
Administrative Trustees in accordance with the terms of the Trust
Securities, engage in such ministerial activities as shall be necessary
or appropriate to effect the distribution
<PAGE> 29
of the Subordinated Debentures to Holders of Trust Securities upon the
occurrence of a Trust Special Event.
(d) The Property Trustee shall take all actions and perform such duties
as may be specifically required of the Property Trustee pursuant to the
terms of the Trust Securities.
(e) The Property Trustee may take any Legal Action which arises out of
or in connection with a Trust Enforcement Event of which a Responsible
Officer of the Property Trustee in its Corporate Trust Office has actual
knowledge or the Property Trustee's duties and obligations under this
Declaration or the Trust Indenture Act.
(f) The Property Trustee shall have the legal power to exercise all of
the rights, powers and privileges of a Holder of Trust Preferred Securities
and, if a Trust Enforcement Event occurs and is continuing, the Property
Trustee may, for the benefit of Holders of the Trust Preferred Securities,
enforce its rights as Holder of the Trust Preferred Securities subject to
the rights of the Holders pursuant to the terms of such Trust Preferred
Securities.
(g) The Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Trust Securities and any
such Paying Agent shall comply with Section 317(b) of the Trust Indenture
Act. Any Paying Agent may be removed by the Property Trustee at any time and
a successor Paying Agent or additional Paying Agents may be appointed at any
time by the Property Trustee.
(h) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders of Trust Securities
pursuant to the terms of the Trust Securities; or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 6.7.
(i) Subject to this Section 3.8, the Property Trustee shall have none
of the duties, liabilities, powers or authority of the Administrative
Trustees set forth in Section 3.6.
The Property Trustee must exercise the powers set forth in this Section
3.8 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 3.3, and the Property Trustee shall not take any action that
is inconsistent with the purposes and functions of the Trust set out in Section
3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property
Trustee.
<PAGE> 30
(a) The Property Trustee, before the occurrence of any Trust
Enforcement Event and after the curing or waiver of all Trust Enforcement
Events that may have occurred, shall undertake to perform only such duties
as are specifically set forth in this Declaration and no implied covenants
shall be read into this Declaration against the Property Trustee. In case a
Trust Enforcement Event has occurred (that has not been cured or waived
pursuant to Section 2.6) of which a Responsible Officer of the Property
Trustee in its Corporate Trust Office has actual knowledge, the Property
Trustee shall exercise such of the rights and powers vested in it by this
Declaration, 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) No provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of a Trust Enforcement Event and
after the curing or waiving of all such Trust Enforcement Events that
may have occurred:
(A) the duties and obligations of the Property Trustee
shall be determined solely by the express provisions of this
Declaration and the Property Trustee shall not be liable except
for the performance of such duties and obligations as are
specifically set forth in this Declaration, and no implied
covenants or obligations shall be read into this Declaration
against the Property Trustee; and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely, as
to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
requirements of this Declaration; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Property Trustee,
the Property Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) subject to the requirement of the Property Trustee
receiving a tax opinion as set forth in Section 8.2(d) or 8.3(c), as
the case may be, the Property Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
<PAGE> 31
Majority in Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds or protection
from such liability is not reasonably assured to it under the terms of
this Declaration or indemnity reasonably satisfactory to the Property
Trustee against such risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Subordinated
Debentures, the Trust Preferred Securities Guarantee and the Property
Account shall be to deal with such property in a similar manner as the
Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Declaration and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or sufficiency of the
Subordinated Debentures, the Trust Preferred Securities Guarantee or
the payment of any taxes or assessments levied thereon or in connection
therewith;
(vii) money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Property Account
maintained by the Property Trustee pursuant to Section 3.8(c)(i) and
except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Sponsor
with their respective duties under this Declaration, nor shall the
Property Trustee be liable for any default or misconduct of the
Administrative Trustees or the Sponsor.
SECTION 3.10 Certain Rights of the Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties;
<PAGE> 32
(ii) any direction or act of the Sponsor or the Administrative
Trustees acting on behalf of the Trust contemplated by this Declaration
shall be sufficiently evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Sponsor or the
Administrative Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel or other
experts and the advice or opinion of such counsel and experts with
respect to legal matters or advice within the scope of such experts'
area of expertise 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 accordance with such advice or opinion;
such counsel may be counsel to the Sponsor or any of its Affiliates,
and may include any of its employees. The Property Trustee shall have
the right at any time to seek instructions concerning the
administration of this Declaration from any court of competent
jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any Holder, unless (a) such Holder shall
have provided to the Property Trustee security and indemnity,
reasonably satisfactory to the Property Trustee, against the costs,
expenses (including attorneys' fees and expenses and the expenses of
the Property Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by
the Property Trustee and (b) the Property Trustee has obtained the
legal opinions, if any, required by Section 8.2(d) or 8.3(c), as the
case may be, of this Declaration; provided, that nothing contained in
this Section 3.10(a)(vi) shall be taken to relieve the Property
Trustee, upon the occurrence of a Trust Enforcement Event, of its
obligation to exercise the rights and powers vested in it by this
Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property
<PAGE> 33
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, custodians, nominees or attorneys and the Property
Trustee shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due care by it
hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Trust Securities,
and the signature of the Property Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third party
shall be required to inquire as to the authority of the Property
Trustee to so act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be conclusively
evidenced by the Property Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders of the Trust Securities which instructions may only be given by
the Holders of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee under
the terms of the Trust Securities in respect of such remedy, right or
action, (ii) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and (iii) shall
be fully protected in conclusively relying on or acting in or in
accordance with such instructions; provided, however, that the Property
Trustee shall not be required to take any action unless it shall have
obtained such legal opinions, if any, required by Sections 8.2(d) or
8.3(c), as the case may be, of this Declaration;
(xi) except as otherwise expressly provided by this Declaration,
the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Declaration;
and
(xii) if no Trust Enforcement Event has occurred and is
continuing and if (i) in performing its duties under this Declaration
the Property Trustee is required to decide between alternative courses
of action or (ii) in construing any of the provisions in this
Declaration the Property Trustee finds the same ambiguous or
inconsistent with any other provisions contained herein or (iii) the
Property Trustee is unsure of the application of any provision of this
Declaration, then, except as to any matter as to which the Holders of
Trust Preferred Securities are entitled to vote under the terms of this
Declaration, the Property Trustee shall deliver a notice to the Sponsor
requesting written instructions of the Sponsor as to the course of
action to be taken and the Property Trustee shall take such action, or
refrain from taking such action, as the Property Trustee shall be
instructed in
<PAGE> 34
writing to take, or to refrain from taking, by the Sponsor; provided,
however, that if the Property Trustee does not receive such
instructions of the Sponsor within 10 Business Days after it has
delivered such notice, or such reasonably shorter period of time set
forth in such notice (which to the extent practicable shall not be less
than two Business Days), it may, but shall be under no duty to, take or
refrain from taking such action not inconsistent with this Declaration
as it shall deem advisable and in the best interests of the Holders, in
which event the Property Trustee shall have no liability except for its
own bad faith, negligence or willful misconduct.
(b) No provision of this Declaration shall be deemed to impose any duty
or obligation on the Property Trustee to perform any act or acts or exercise
any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property
Trustee shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any provision of this Declaration other than Section
6.2, the Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Administrative Trustees, the Property Trustee or the Sponsor described in this
Declaration. Except as set forth in Section 6.2, the Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Business Trust Act.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Administrative Trustees, and except
as otherwise required by the Business Trust Act, any Administrative Trustee is
authorized to execute on behalf of the Trust any documents that the
Administrative Trustees have the power and authority to cause the Trust to
execute pursuant to Section 3.6.
SECTION 3.13 Not Responsible for Recitals or Issuance of Trust
Securities.
The recitals contained in this Declaration and the Trust Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Declaration, the Subordinated Debentures or the Trust Securities.
<PAGE> 35
SECTION 3.14 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of Article IX
hereof, shall have perpetual existence.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or into, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Sections
3.15(b) and (c).
(b) The Trust may, with the consent of the Administrative Trustees or,
if there are more than two, a majority of the Administrative Trustees and
without the consent of the Holders of the Trust Securities, the Delaware
Trustee or the Property Trustee, consolidate, amalgamate, merge with or
into, or be replaced by, or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to a trust organized
as such under the laws of any State of the United States; provided, that:
(i) if the Trust is not the survivor, such successor entity
(the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Trust Securities; or
(B) substitutes for the Trust Preferred Securities other
securities having substantially the same terms as the Trust
Preferred Securities (the "Successor Trust Securities") so long
as the Successor Trust Securities rank the same as the Trust
Preferred Securities rank with respect to Distributions, assets
and payments upon liquidation, redemption and otherwise;
(ii) the Company expressly appoints a trustee of the Successor
Entity that possesses the same powers and duties as the Property
Trustee as the Holder of the Subordinated Debentures;
(iii) the Successor Trust Securities are listed, or any Successor
Trust Securities will be listed upon notification of issuance, on any
national securities exchange or with another organization on which the
Trust Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Trust Preferred
Securities (including any Successor Trust Securities) to be downgraded
by any nationally recognized statistical rating organization;
<PAGE> 36
(v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Trust Preferred
Securities (including any Successor Trust Securities) in any material
respect (other than with respect to any dilution of the Holders'
interests in the new entity);
(vi) such Successor Entity has a purpose identical to that of
the Trust;
(vii) the Company owns all of the securities of the Successor
Entity having substantially the same terms as the Trust Common
Securities (the "Successor Common Securities") and guarantees the
obligations of such Successor Entity under the Successor Trust
Securities and the Successor Common Securities at least to the extent
provided by the Trust Guarantees; and
(viii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Sponsor has received an
opinion of a nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease will not adversely affect the
rights, preferences and privileges of the Holders of the Trust
Preferred Securities (including any Successor Trust Securities)
in any material respect (other than with respect to any dilution
of the Holders' interest in the new entity);
(B) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor
the Successor Entity will be required to register as an
Investment Company under the 1940 Act; and
(C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will not be
taxable as a corporation for United States federal income tax
purposes.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with
the consent of Holders of 100% in Liquidation Amount of the Trust Preferred
Securities, consolidate, amalgamate, merge with or into, or be replaced by
or convey, transfer or lease its assets substantially as an entirety to any
other entity or permit any other entity to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or
Successor Entity to be taxable as a corporation for United States federal
income tax purposes.
SECTION 3.16 Compensation.
<PAGE> 37
(a) The Sponsor agrees:
(i) to pay each of the Trustees from time to time such
compensation for all services rendered by such Trustee hereunder as the
Sponsor and such Trustee may agree upon from time to time (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust). To the fullest
extent possible the parties intend that Section 3561 of Title 12 of the
Delaware Code shall not apply to the Trust and that compensation paid
pursuant to this Section 3.16(a) not be subject to review by any court
under Section 3560 of Title 12 of the Delaware Code;
(ii) except as otherwise expressly provided herein, to reimburse
the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any
provision of this Declaration (including the reasonable compensation
and the expenses and disbursements of its agents and counsel), except
any such expenses, disbursement or advance as may be attributable to
its negligence or bad faith; and
(b) Each of the Trustees hereby agrees that it shall not claim any lien
or charge on any trust property as a result of any amount due pursuant to
this Section 3.16. The provisions of this Section 3.16 shall survive the
dissolution of the Trust and the termination of this Declaration and the
removal or resignation of any Trustee.
ARTICLE IV
SPONSOR
SECTION 4.1 Responsibilities of the Sponsor.
In connection with the issue and sale of the Trust Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare, execute and file on behalf of the Trust with the
Commission a registration statement on Form S-3 in relation to the Trust
Preferred Securities, including any amendments or supplements thereto
pertaining to the Trust Preferred Securities and take such actions, or
cause the Property Trustee to take such actions, as may be necessary or
appropriate to qualify this Declaration under the Trust Indenture Act;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Trust Preferred Securities
and to do any and all such acts, other than actions which must be taken by
the Trust, and advise the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and filed by the Trust, as
the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
<PAGE> 38
(c) to prepare for filing by the Trust an application to the Nasdaq
National Market System or any other national stock exchange for listing upon
notice of issuance of any Trust Preferred Securities and, if required, the
Trust Preferred Securities Guarantee;
(d) to prepare, execute and file on behalf of the Trust with the
Commission a registration statement, including any amendments thereto,
relating to the registration of the Trust Preferred Securities and the Trust
Preferred Securities Guarantee under Section 12(b) of the Exchange Act, and
to prepare and file all periodic and other reports and documents required in
connection therewith; and
(e) to negotiate the terms of, and execute and deliver, an
underwriting agreement and any pricing agreement providing for the sale of
the Trust Preferred Securities.
SECTION 4.2 Indemnification and Expenses of the Trustee.
To the fullest extent permitted by law, the Sponsor agrees to indemnify
the Property Trustee and the Delaware Trustee for, and to hold each of them
harmless against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Property Trustee or the Delaware Trustee, as the
case may be, arising out of or in connection with the acceptance or
administration of the trust hereunder, including the costs and expenses of
defending either of them against any claim or liability in connection with the
exercise or performance of any of their respective powers or duties hereunder.
The provisions of this Section 4.2 shall survive the resignation or removal of
the Delaware Trustee or the Property Trustee or the termination of this
Declaration.
ARTICLE V
TRUST COMMON SECURITIES
HOLDER
SECTION 5.1 Company's Purchase of Trust Common Securities.
On the Closing Date the Company will purchase the Trust Common
Securities authorized for issuance by the Trust, for an amount at least equal to
3% of the capital of the Trust (as determined as of the Closing Date),
concurrently with the issuance of Trust Preferred Securities on the Closing
Date. Upon the exercise of the Over-Allotment Option (if the closing of same
occurs other than on the Closing Date), the Company shall purchase such
additional number of Trust Common Securities at $50 per Trust Common Security so
that the aggregate Liquidation Amount of the additional Trust Common Securities
so issued equals 3% of the aggregate Liquidation Amount of the additional Trust
Preferred Securities issued at such Option Closing Date. All Trust Common
Securities issued by the Trust shall be deemed to have been issued as of the
Closing Date.
SECTION 5.2 Covenants of the Trust Common Securities Holder.
For so long as the Trust Preferred Securities remain outstanding, the
Company will
<PAGE> 39
covenant (i) to maintain directly 100 percent ownership of the Trust Common
Securities, (ii) to cause the Trust to remain a statutory business trust and not
to voluntarily dissolve, wind up, liquidate, or be terminated, except as
permitted by this Declaration, (iii) to use its commercially reasonable efforts
to ensure that the Trust will not be an Investment Company, and (iv) to take no
action which would be reasonably likely to cause the Trust to be taxable as a
corporation for United States federal income tax purposes.
ARTICLE VI
TRUSTEES
SECTION 6.1 Number of Trustees.
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Trust Securities, the
Sponsor may, by written instrument, increase or decrease the number of
Trustees; and
(b) after the issuance of any Trust Securities, the number of Trustees
may be increased or decreased by vote of the Holders of a Majority in
Liquidation Amount of the Trust Common Securities voting as a class at a
meeting of the Holders of the Trust Common Securities; provided, however,
that the number of Trustees shall in no event be less than three (3);
provided, further, that (1) if required by the Business Trust Act, one
Trustee is the Delaware Trustee; (2) there shall be at least one Trustee who
is an employee or officer of, or is affiliated with, the Company (each, an
"Administrative Trustee"); and (3) one Trustee shall be the Property Trustee
for so long as this Declaration is required to qualify as an indenture under
the Trust Indenture Act, and such Property Trustee may also serve as
Delaware Trustee if it meets the applicable requirements.
SECTION 6.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law, provided, that if the Property Trustee has its principal
place of business in the State of Delaware and otherwise meets the
requirements of applicable law, then the Property Trustee may also be the
Delaware Trustee (in which case Section 3.11 shall have no application).
SECTION 6.3 Property Trustee; Eligibility.
<PAGE> 40
(a) There shall at all times be one Trustee (the "Property Trustee")
which shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or examining
authority referred to above, then for the purposes of this Section
6.3(a)(ii), the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Property Trustee shall cease to be eligible to
so act under Section 6.3(a), the Property Trustee shall immediately resign
in the manner and with the effect set forth in Section 6.7(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Property Trustee and the Holder of the Trust Common Securities (as if it
were the obligor referred to in Section 310(b) of the Trust Indenture Act)
shall in all respects comply with the provisions of Section 310(b) of the
Trust Indenture Act.
(d) The Trust Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be:
The Bank of New York.
SECTION 6.4 Qualifications of Administrative Trustees and Delaware
Trustee Generally.
Each Administrative Trustee and the Delaware Trustee (unless the
Property Trustee also acts as Delaware Trustee) shall be either a natural person
who is at least 21 years of age or a legal entity that shall act through one or
more Authorized Officers.
<PAGE> 41
SECTION 6.5 Administrative Trustees.
The initial Administrative Trustees shall be:
Philip C. Calian
Jordan B. Allen
Randall L. Talcott
Except as expressly set forth in this Declaration and except if a
meeting of the Administrative Trustees is called with respect to any matter over
which the Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
SECTION 6.6 Delaware Trustee.
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
SECTION 6.7 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 6.7(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Trust Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Trust Securities, by vote of the
Holders of a Majority in Liquidation Amount of the Trust Common
Securities voting as a class, provided, however, that if a Trust
Enforcement Event shall have occurred and be continuing the Property
Trustee may be removed and a successor thereto appointed only by the
Holders of a Majority in Liquidation Amount of the Trust Preferred
Securities.
(b) (i) the Trustee that acts as Property Trustee shall not
be removed in accordance with Section 6.7(a) until a successor Trustee
possessing the qualifications to act as Property Trustee under Section
6.3 (a "Successor Property Trustee") has been appointed and has
accepted such appointment by written instrument executed by such
Successor Property Trustee and delivered to the Administrative Trustees
and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be
removed in accordance with Section 6.7(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections
6.2 and 6.4 (a "Successor Delaware Trustee") has been appointed and has
accepted such appointment by written instrument executed by such
Successor Delaware Trustee and delivered to the Administrative Trustees
and the Sponsor.
<PAGE> 42
(c) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or resignation. Any
Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered
to the Sponsor and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been appointed
and has accepted such appointment by instrument executed by such
Successor Property Trustee and delivered to the Trust, the
Sponsor and the resigning Property Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the Holders of
the Trust Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Trust Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor
Property Trustee, as the case may be, if the Property Trustee or the
Delaware Trustee delivers an instrument of resignation in accordance with
this Section 6.7; provided, however, that if a Trust Enforcement Event shall
have occurred and be continuing a successor Property Trustee may be
appointed only by the Holders of a Majority in Liquidation Amount of the
Trust Preferred Securities.
(e) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this
Section 6.7 within 60 days after delivery to the Sponsor and the Trust of an
instrument of resignation, the resigning Property Trustee or Delaware
Trustee, as applicable, may petition any court of competent jurisdiction for
appointment of a Successor Property Trustee or Successor Delaware Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may
deem proper and prescribe, appoint a Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
<PAGE> 43
(g) In case of the appointment hereunder of a successor Trustee, such
successor Trustee so appointed shall execute, acknowledge and deliver to the
Trust and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Sponsor or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee and if the Property
Trustee is the resigning Trustee shall duly assign, transfer and deliver to
the successor Trustee all property and money held by such retiring Property
Trustee hereunder.
SECTION 6.8 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 6.1, or if the number of Trustees is
increased pursuant to Section 6.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Administrative Trustees or, if
there are more than two, a majority of the Administrative Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 6.7.
SECTION 6.9 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul, dissolve or terminate the Trust. Whenever a vacancy in
the number of Administrative Trustees shall occur, until such vacancy is filled
by the appointment of an Administrative Trustee in accordance with Section 6.7,
the Administrative Trustees in office, regardless of their number, shall have
all the powers granted to the Administrative Trustees and shall discharge all
the duties imposed upon the Administrative Trustees by this Declaration.
SECTION 6.10 Meetings.
If there is more than one Administrative Trustee, meetings of the
Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may be
held at a time and place fixed by resolution of the Administrative Trustees.
Notice of any in-person meetings of the Administrative Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 48 hours before such meeting. Notice of
any telephonic meetings of the Administrative Trustees or any committee thereof
shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of an
<PAGE> 44
Administrative Trustee at a meeting shall constitute a waiver of notice of such
meeting except where an Administrative Trustee attends a meeting for the express
purpose of objecting to the transaction of any activity on the ground that the
meeting has not been lawfully called or convened. Unless provided otherwise in
this Declaration, any action of the Administrative Trustees may be taken at a
meeting by vote of a majority of the Administrative Trustees present (whether in
person or by telephone) and eligible to vote with respect to such matter;
provided, that a Quorum is present, or without a meeting by the unanimous
written consent of the Administrative Trustees. Notwithstanding the foregoing,
any and all actions of the Administrative Trustees may be taken by the unanimous
written consent of all Administrative Trustees.
SECTION 6.11 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21
his or her power for the purpose of executing any documents contemplated in
Section 3.6, including any registration statement or amendment thereto filed
with the Commission, or making any other governmental filing.
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation is
not prohibited by applicable law or contrary to the provisions of the Trust,
as set forth herein.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Property Trustee, the Delaware Trustee
or an Administrative Trustee, as the case may be, may be merged or converted or
with which either may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Property Trustee, the Delaware
Trustee or an Administrative Trustee, as the case may be, shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Property Trustee, the Delaware Trustee or an Administrative
Trustee, as the case may be, shall be the successor of the Property Trustee, the
Delaware Trustee or Administrative Trustee, as the case may be, hereunder;
provided, that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
<PAGE> 45
ARTICLE VII
DISTRIBUTIONS; REDEMPTION;
EXCHANGE; CONVERSION
SECTION 7.1 Distributions.
(a) The Trust Securities represent undivided beneficial interests in
the Trust property, and Holders of Trust Securities shall be entitled to
receive cumulative cash distributions at the rate per annum of _____% of the
stated Liquidation Amount of $50 per Trust Security, calculated on the basis
of a 360-day year consisting of twelve 30-day months. For any period shorter
than a full 90-day quarter, distributions will be computed on the basis of
the actual number of days elapsed in such 90-day quarter. Distributions
shall be made on the Trust Preferred Securities and the Trust Common
Securities in accordance with Section 7.5. Distributions on the Trust
Securities shall, from the Closing Date, accrue and be cumulative and shall
be payable quarterly only to the extent that the Trust has funds available
for the payment of such Distributions in the Property Account. Distributions
not paid on the scheduled payment date will accumulate and compound
quarterly at the rate of _____% per annum ("Compounded Distributions").
"Distributions" shall mean ordinary cumulative distributions in respect of
each Fiscal Period together with any Compounded Distributions. If and to the
extent that the Company makes a payment on the Subordinated Debentures held
by the Property Trustee or the Company makes a payment under the Trust
Guarantees (the amount of any such payment being a "Payment Amount"), the
Trust shall and the Property Trustee is directed, to the extent funds are
available for that purpose, to make a Pro Rata Distribution of the Payment
Amount to the Holders entitled thereto.
(b) Distributions on the Trust Securities will be payable quarterly in
arrears on each March 31, June 30, September 30 and December 31, commencing
_________, 2000, when, as and if available for payment, by the Property
Trustee, except as otherwise described below. If Distributions are not paid
when scheduled, the accumulated Distributions shall be paid to the Holders
of record of Trust Securities as they appear on the books and records of the
Trust on the record date established for such Distributions as determined
under Section 7.1(e) below.
(c) The Sponsor has the right under the Subordinated Indenture to defer
payments of interest by extending the interest payment period from time to
time on the Subordinated Debentures for a period not exceeding 20
consecutive quarters (each an "Extension Period"); provided, that no
Extension Period shall last beyond the date of the maturity or any
redemption date of the Subordinated Debentures and, as a consequence of such
deferral, Distributions will also be deferred. Despite such deferral,
quarterly Distributions will continue to accrue with interest thereon (to
the extent permitted by applicable law) at the rate specified above
compounded quarterly during any such Extension Period. Prior to the
termination of any such Extension Period, the Sponsor may further extend
such Extension Period; provided, that such Extension Period together with
all such previous and further extensions thereof may not exceed 20
consecutive quarters or extend beyond the maturity or any redemption date of
the Subordinated Debentures.
(d) Amounts available to the Trust for distribution to the Holders of
the Trust Securities will be limited to payments received by the Trust from
the Company on the
<PAGE> 46
Subordinated Debentures or the Trust Guarantees. If the Property Trustee,
as the holder of the Subordinated Debentures for the benefit of the Holders
of the Trust Securities, receives notice of any determination by the
Company not to make payment on such Subordinated debentures, the Property
Trustee shall give notice of such determination to the Holders.
(e) Distributions on the Trust Securities will be payable to the
Holders thereof as they appear on the books and records of the Trust on the
relevant record dates, which relevant record dates will be the 15th day of
the month of the relevant payment dates (that is, each March 15, June 15,
September 15 and December 15). Such Distributions will be paid through the
Property Trustee who will hold amounts received in respect of the
Subordinated Debentures and Trust Guarantees in the Property Account for the
benefit of the Holders of the Trust Securities. In the event that any date
on which distributions are payable on the Trust Securities is not a Business
Day, payment of the distribution payable on such date will be made on the
next succeeding day which is a Business Day (without any interest or other
payment in respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The record date for Trust Common Securities
shall be the same date as is established as the record date for Trust
Preferred Securities.
SECTION 7.2 Redemption.
(a) (i) Upon the repayment of the Subordinated Debentures either
at maturity or as a result of the acceleration of the Subordinated
Debentures upon the occurrence of a Debenture Event of Default, the
proceeds from such repayment or prepayment shall be applied by the
Property Trustee (subject to the Property Trustee having received
written notice no later than 30 days prior to the related redemption of
the Trust Securities) to redeem Trust Securities having an aggregate
Liquidation Amount equal to the principal amount of the Subordinated
Debentures so repaid, at the Redemption Price.
(ii) Upon an optional redemption (as set forth in the
Subordinated Indenture) of Subordinated Debentures, the proceeds from
such redemption shall be applied to redeem Trust Securities having an
aggregate Liquidation Amount equal to the aggregate unpaid principal
amount of the Subordinated Debentures so redeemed by the Sponsor,
including pursuant to Section 7.4, at the Optional Redemption Price,
and upon a mandatory redemption (as set forth in the Subordinated
Indenture) of Subordinated Debentures, the proceeds from such
redemption shall be applied to redeem Trust Securities having an
aggregate Liquidation Amount equal to the aggregate unpaid principal
amount of the Subordinated Debentures so redeemed by the Sponsor, at
the Redemption Price.
(iii) If, at any time prior to the Conversion Expiration Date,
less than ten percent (10%) in principal amount of the Subordinated
Debentures originally issued by the Sponsor remain outstanding, such
Subordinated Debentures shall be
<PAGE> 47
redeemable, at the option of the Sponsor, exercisable at any time in
whole but not in part, at a Redemption Price equal to the aggregate
unpaid principal amount thereof, and all accrued and unpaid interest
due thereon; in such event, the proceeds from such redemption shall be
applied to redeem at the Redemption Price the outstanding Trust
Securities having an aggregate Liquidation Amount equal to the
aggregate unpaid principal amount of the Subordinated Debentures so
redeemed by the Sponsor.
(b) Notice of redemption (which notice will be irrevocable) shall be
given by the Property Trustee by first-class mail, postage prepaid, mailed
not less than 30 nor more than 60 days prior to the Redemption Date to the
Sponsor and each Holder of Trust Securities to be redeemed, at such
Holder's address as it appears in the books and records of the Trust. All
notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or the Optional Redemption Price, as
the case may be;
(iii) the applicable CUSIP number;
(iv) if less than all of the outstanding Trust Securities are to
be redeemed, the identification and the aggregate Liquidation Amount of
the particular Trust Securities to be redeemed;
(v) if the Trust Preferred Securities are convertible, (A) that
a Holder of Trust Preferred Securities who desires to convert such
Trust Preferred Securities called for redemption must satisfy the
requirements for conversion contained in Section 7.3 hereof, (B) the
Conversion Price and (C) the date and time when the right to convert
shall expire;
(vi) that on the Redemption Date the Redemption Price or the
Optional Redemption Price, as the case may be, will become due and
payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and after said date and
the Trust Security being redeemed will cease to have conversion rights;
and
(vii) the place or places where such Trust Securities are to be
surrendered for payment of the Redemption Price or the Optional
Redemption Price, as the case may be.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price or the Optional Redemption Price, as the
case may be, with the proceeds from the contemporaneous redemption of
Subordinated Debentures. Redemption of the Trust Securities shall be made
and the Redemption Price or the
<PAGE> 48
Optional Redemption Price, as the case may be, shall be payable on each
Redemption Date only to the extent that the Trust has funds then on hand
and available in the Property Account for the payment of such Redemption
Price or the Optional Redemption Price, as the case may be.
(d) If the Property Trustee gives a notice of redemption in respect
of any Trust Preferred Securities, then by 12:00 noon, New York City time,
on the Redemption Date, subject to Section 7.2(c) and to the Property
Trustee's having received for deposit to the Property Account available
funds sufficient for such redemption by 10:00 A.M., New York City time, on
the Redemption Date, the Property Trustee will, so long as and to the
extent the Trust Preferred Securities are in book-entry-only form,
irrevocably deposit with the Clearing Agency for the Trust Preferred
Securities funds sufficient to pay the applicable Redemption Price or
Optional Redemption Price and will give the Clearing Agency irrevocable
instructions and authority to pay the Redemption Price or the Optional
Redemption Price, as the case may be, to the Holders of such Trust
Preferred Securities. If the Trust Preferred Securities are no longer in
book-entry only form, the Property Trustee, subject to Section 7.2(c), will
irrevocably deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price or Optional Redemption Price, as the case may
be, on such Trust Preferred Securities held in certificated form and will
give the Paying Agent irrevocable instructions and authority to pay the
Redemption Price or the Optional Redemption Price, as the case may be, to
the Holders thereof upon surrender of their Trust Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions payable on or
prior to the Redemption Date for any Trust Securities called for redemption
shall be payable to the Holders of such Trust Securities as they appear in
the books and records of the Trust Securities on the relevant record dates
for the related Distribution dates. If notice of redemption shall have been
given and funds deposited as required, then, upon the date of such deposit,
all rights of Holders holding Trust Securities so called for redemption
will cease, except the right of such Holders to receive the Redemption
Price or the Optional Redemption Price, as the case may be, but without
interest, on such Redemption Date and such Trust Securities will cease to
be outstanding. In the event that any date on which any Redemption Price or
the Optional Redemption Price, as the case may be, is payable is not a
Business Day, then payment of the Redemption Price or the Optional
Redemption Price, as the case may be, payable on such date will be made on
the next succeeding day which is a Business Day and without interest or
other payment in respect of any such delay, except that, if such Business
Day is in the next succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case, with the same force
and effect as if made on such date. In the event that payment of the
Redemption Price or the Optional Redemption Price in respect of Trust
Securities called for redemption is improperly withheld or refused and not
paid by the Trust or by the Sponsor pursuant to the Trust Guarantees,
Distributions on such Trust Securities will continue to accumulate at the
then applicable rate, from the Redemption Date originally established by
the Trust to the date such Redemption Price or the Optional Redemption
Price is actually paid, in which case the actual payment date will be the
date fixed for redemption for purpose of calculating the Redemption Price
or the Optional Redemption Price.
<PAGE> 49
(e) If less than all the outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of
Trust Securities to be redeemed shall be allocated, subject to Section
9.2(b), on a pro rata basis (based on Liquidation Amounts) among the Trust
Common Securities and the Trust Preferred Securities that are to be
redeemed. The particular Trust Preferred Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Property
Trustee from the outstanding Trust Preferred Securities not previously
called for redemption, by lot or by such other method as the Property
Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions equal to $50 (or an integral multiple
of $50 in excess thereof) of the Liquidation Amount of the Trust Preferred
Securities. The Property Trustee shall promptly notify the registrar and
transfer agent of the Trust Securities and the Conversion Agent in writing
of the Trust Preferred Securities selected for partial redemption and, in
the case of any Trust Preferred Securities selected for redemption, the
Liquidation Amount thereof to be redeemed; it being understood that, in the
case of Trust Preferred Securities registered in the name of and held of
record by the Clearing Agency or any nominee, the distribution of the
proceeds of such redemption will be made in accordance with the procedures
of the Clearing Agency or its nominee. For all purposes of this Declaration,
unless the context otherwise requires, all provisions relating to the
redemption of Trust Preferred Securities shall relate, in the case of any
Trust Preferred Securities redeemed or to be redeemed only in part, to the
portion of the Liquidation Amount of Trust Preferred Securities which has
been or is to be redeemed. In the event of any redemption in part, the Trust
shall not be required to (i) issue, or register the transfer of or exchange
of, any Trust Preferred Security during a period beginning at the opening of
business 15 days before any selection for redemption of Trust Preferred
Securities and ending at the close of business on the earliest date in which
the relevant notice of redemption is deemed to have been given to all
holders of Trust Preferred Securities to be so redeemed or (ii) register the
transfer of or exchange of any Trust Preferred Securities so selected for
redemption, in whole or in part, except for the unredeemed portion of any
Trust Preferred Securities being redeemed in part.
SECTION 7.3 Conversion.
The Holders of Trust Securities, subject to the limitations set forth
in this Section 7.3, shall have the right at any time following the Closing Date
and ending on the Conversion Expiration Date, at their option, to cause the
Conversion Agent to convert Trust Securities, on behalf of the converting
Holders, into shares of Common Stock of the Company in the manner described
herein on and subject to the following terms and conditions:
(i) The Trust Securities will be convertible into fully paid
and nonassessable shares of Common Stock of the Company pursuant to the
Holder's direction to the Conversion Agent to exchange such Trust
Securities for a portion of the Subordinated Debentures, and
immediately to convert such amount of Subordinated Debentures into
fully paid and nonassessable shares of Common
<PAGE> 50
Stock of the Company at an initial rate of ______ shares of Common
Stock for each Trust Security (which is equivalent to a conversion
price of $_____ principal amount of Subordinated Debentures per share
of Company Common Stock), subject to certain adjustments set forth in
the Subordinated Indenture (as so adjusted, the "Conversion Price").
(ii) In order to convert Trust Securities into Company Common
Stock, the Holder of such Trust Securities shall submit to the
Conversion Agent an irrevocable Notice of Conversion to convert Trust
Securities on behalf of such Holder, together, if the Trust Securities
are in certificated form, with such certificates. The Notice of
Conversion shall (i) set forth the number of Trust Securities to be
converted and the name or names, if other than the Holder, in which the
shares of Company Common Stock should be issued and (ii) direct the
Conversion Agent (a) to exchange such Trust Securities for a portion of
the Subordinated Debentures held by the Property Trustee having an
aggregate principal amount equal to the Liquidation Amount of the Trust
Securities surrendered for conversion and (b) to immediately convert
such Subordinated Debentures, on behalf of such Holder, into Company
Common Stock and, if applicable, other securities, cash or property (at
the Conversion Price specified in the preceding paragraph). The
Conversion Agent shall notify the Property Trustee of the Holder's
election to exchange Trust Securities for a portion of the Subordinated
Debentures held by the Property Trustee and the Property Trustee shall,
upon receipt of such notice, deliver to the Conversion Agent the
appropriate principal amount of Subordinated Debentures for exchange in
accordance with this Section. The Conversion Agent shall thereupon
notify the Sponsor of the Holder's election to convert such
Subordinated Debentures into shares of Company Common Stock. Holders of
Trust Securities at the close of business on a relevant record date for
a Distribution will be entitled to receive the Distribution paid on
such Trust Securities on the corresponding Distribution date
notwithstanding the conversion of such Trust Securities following such
relevant record date but prior to such Distribution date. Except as
provided above, neither the Trust nor the Sponsor will make, or be
required to make, any payment, allowance or adjustment upon any
conversion on account of any accumulated and unpaid Distributions,
whether or not in arrears, accrued on the Trust Securities surrendered
for conversion, or on account of any accumulated and unpaid dividends
on the shares of Company Common Stock issued upon such conversion.
Trust Securities shall be deemed to have been converted immediately
prior to the close of business on the day on which an irrevocable
Notice of Conversion relating to such Trust Securities is received by
the Conversion Agent in accordance with the foregoing provision (the
"Conversion Date"). The Person or Persons entitled to receive the
Company Common Stock issuable upon conversion of the Subordinated
Debentures shall be treated for all purposes as the record holder or
holders of such Company Common Stock on the Conversion Date. As
promptly as practicable on or after the Conversion Date, the Sponsor
shall issue and deliver (or cause the transfer agent for the Company
Common Stock to deliver) at the office of the
<PAGE> 51
Conversion Agent a certificate or certificates for the number of full
shares of Company Common Stock issuable upon such conversion, together
with the cash payment, if any, in lieu of any fraction of any share to
the Person or Persons entitled to receive the same, unless otherwise
directed by the Holder in the Notice of Conversion, and the Conversion
Agent shall distribute such certificate or certificates to such Person
or Persons.
(iii) Each Holder of a Trust Security by its acceptance thereof
initially appoints The Bank of New York not in its individual capacity
but solely as conversion agent (the "Conversion Agent") for the purpose
of effecting the conversion of Trust Securities in accordance with this
Section 7.3. In effecting the conversion and transactions described in
this Section 7.3, the Conversion Agent shall be acting as agent of the
Holders of Trust Securities directing it to effect such conversion
transactions. The Conversion Agent is hereby authorized (i) to exchange
Trust Securities from time to time for Subordinated Debentures held by
the Trust in connection with the conversion of such Trust Securities in
accordance with this Section 7.3 and (ii) to convert all or a portion
of the Subordinated Debentures so exchanged into Company Common Stock
and thereupon to deliver such shares of Company Common Stock in
accordance with the provisions of this Section and to deliver to the
Property Trustee any new Subordinated Debenture or Debentures for any
resulting unconverted principal amount delivered to the Conversion
Agent by the Debenture Trustee.
(iv) No fractional shares of Company Common Stock will be issued
as a result of conversion, but, in lieu thereof, such fractional
interest will be paid in cash by the Sponsor to the Conversion Agent in
an amount equal to the Closing Price of such fractional share on the
Conversion Date, and the Conversion Agent will in turn make such
payment to the Holder or Holders of Trust Securities so converted.
(v) Nothing in this Section 7.3 shall limit the requirement of
the Trust to withhold taxes pursuant to the terms of the Trust
Securities or as set forth in this Declaration or otherwise require the
Property Trustee or the Trust to pay any amounts on account of such
withholdings.
(vi) In the event of the exchange of any Trust Security in part
only in connection with a conversion pursuant to this Section 7.3, a
new Trust Security or Trust Securities for the unexchanged portion
thereof will be issued in the name of the Holder thereof upon the
cancellation of the Trust Security exchanged in part in accordance with
Section 10.9 of this Declaration or if such Trust Security is
represented by a Global Certificate, the Property Trustee shall note
thereon the reduction in the number of Trust Securities evidenced
thereby as a result of such exchange.
SECTION 7.4 Trust Special Event Exchange or Redemption.
<PAGE> 52
(a) If a Trust Special Event shall occur and be continuing, the
Property Trustee and the Administrative Trustees shall direct the Conversion
Agent to exchange all outstanding Trust Securities for Subordinated
Debentures having an unpaid principal amount equal to the aggregate
Liquidation Amount of the Trust Securities to be exchanged and to dissolve
the Trust; provided, however, that, in the case of a Trust Tax Event, the
Sponsor shall have the right to (i) direct that less than all, or none, as
appropriate, of the Trust Securities be so exchanged if and for so long as
the Sponsor shall have elected to pay any Additional Sums such that the net
amounts received by Holders of Trust Securities not so exchanged in respect
of Distributions are not reduced as a result of such Trust Tax Event, and
shall not have revoked any such election or failed to make such payments or
(ii) cause the Trust Securities to be redeemed in the manner set forth
below. If at any time after [March 31, 2004], a Trust Tax Event shall occur
or be continuing, the Sponsor shall have the right, subject to the
provisions of the Subordinated Indenture, upon not less than 30 nor more
than 60 days' notice, to redeem the Subordinated Debentures, in whole or in
part, for cash. Promptly following such redemption, Trust Securities with an
aggregate Liquidation Amount equal to the aggregate unpaid principal amount
of the Subordinated Debentures so redeemed will be redeemed by the Trust at
the Optional Redemption Price on a pro rata basis, except as provided for in
Section 9.2(b).
(b) Notice of any exchange pursuant to this Section 7.4 (an "Exchange
Notice") of the Trust Securities, which Exchange Notice shall be
irrevocable, will be given by the Property Trustee by first-class mail to
the Sponsor and to each record Holder of Trust Securities to be exchanged
not less than 30 nor more than 60 days prior to the date fixed for exchange
thereof. The Sponsor shall notify the Property Trustee of such exchange at
least 15 days prior to the latest date that the Property Trustee must give
such notice. For purposes of the calculation of the date of exchange and the
dates on which notices are given pursuant to this paragraph (b), an Exchange
Notice shall be deemed to be given on the day such notice is first mailed by
first-class mail, postage prepaid, to each Holder. Each Exchange Notice
shall be addressed to each Holder of Trust Securities at the address of such
Holder appearing in the books and records of the Trust. Each Exchange Notice
shall state: (A) the exchange date; (B) the aggregate Liquidation Amount of
the Trust Securities to be exchanged and the aggregate principal amount of
the Subordinated Debentures to be so exchanged therefor; (C) that on the
exchange date the Trust Securities to be so exchanged shall be exchanged for
Subordinated Debentures bearing interest accruing from and including the
last date to which Distributions have been made on the Trust Securities and
that Distributions on the Trust Securities so exchanged will cease to
accumulate on and after said date; and (D) the identity of the Conversion
Agent, if any, and the place or places where the Trust Securities to be
exchanged are to be surrendered in exchange for Subordinated Debentures. No
defect in the Exchange Notice or in the mailing thereof with respect to any
Trust Security shall affect the validity of the exchange proceedings for any
other Trust Security.
(c) In the event that fewer than all the outstanding Trust Preferred
Securities are to be exchanged, then, on the exchange date, (i) if all of
the outstanding Trust
<PAGE> 53
Preferred Securities are represented by Definitive Trust Preferred
Securities Certificates, the particular Trust Preferred Securities to be
exchanged will be selected by the Property Trustee from the outstanding
Trust Preferred Securities not previously called for redemption or exchange
on a pro rata basis (based on Liquidation Amounts), (ii) if all of the
outstanding Trust Preferred Securities are represented by Book-Entry
Interests, the Property Trustee shall provide for the selection for exchange
of a portion of the Global Certificate representing the Book-Entry Interests
on a pro rata basis (based on Liquidation Amounts) and (iii) if Outstanding
Trust Securities are represented by both Definitive Trust Preferred
Securities Certificate and Book-Entry Interests, the Property Trustee shall
select the portion of the Global Certificate representing the Book- Entry
Interests and the particular outstanding Trust Preferred Securities
represented by Definitive Preferred Securities Certificates to be exchanged
on a pro rata basis (based on Liquidation Amounts). In the case of clause
(ii) or (iii) above, the particular Book-Entry Interests to be exchanged
shall be selected in accordance with the applicable rules and procedures for
the Clearing Agency in whose name, or whose nominee's name, such Global
Certificate is then held. Any Trust Preferred Securities Certificate that is
to be exchanged only in part shall be surrendered with due endorsement or by
a written instrument of transfer fully executed by the Holder thereof (or
its attorney duly authorized in writing) and the Trust shall prepare and
deliver to such Holder, without service charge, a new Trust Preferred
Securities Certificate or Certificates in aggregate stated Liquidation
Amount equal to, and in exchange for, the unredeemed portion of the Trust
Preferred Securities Certificate so surrendered. The Trust Common Securities
shall be exchanged in a manner similar to that described for Trust Preferred
Securities represented by Definitive Trust Preferred Securities
Certificates.
(d) In the event of an exchange pursuant to this Section 7.4, on the date
fixed for any such exchange, (i) if the Trust Preferred Securities are
represented by Book-Entry Interests, the Clearing Agency or its nominee, as
the record Holder of the Trust Preferred Securities, will exchange through
the Conversion Agent the Global Certificate representing the Trust Preferred
Securities to be exchanged for a registered Global Certificate or
certificates representing the Subordinated Debentures to be delivered upon
such exchange, (ii) if the Trust Preferred Securities are represented by
Definitive Trust Preferred Securities Certificates, the certificates
representing the Trust Preferred Securities to be so exchanged will be
deemed to represent Subordinated Debentures having a principal amount equal
to the aggregate stated Liquidation Amount of such Subordinated Preferred
Securities until such certificates are presented to the Conversion Agent for
exchange for definitive certificates representing Subordinated Debentures
and (iii) all rights of the Holders of the Trust Preferred Securities so
exchanged will cease, except for the right of such Holders to receive
Subordinated Debentures. The Trust Common Securities shall be exchanged in a
manner similar to that described for Trust Preferred Securities represented
by Definitive Trust Preferred Securities Certificates.
(e) Each Holder, by becoming a party to this Declaration pursuant to Section
15.4 of this Declaration, will be deemed to have agreed to be bound by these
exchange provisions in regard to the exchange of Trust Securities for
Subordinated Debentures
<PAGE> 54
pursuant to the terms described above.
(f) Nothing in this Section 7.4 shall limit the requirement of the
Trust to withhold taxes pursuant to the terms of the Trust Securities or as
set forth in this Declaration or otherwise require the Property Trustee or
the Trust to pay any amounts on account of such withholdings.
SECTION 7.5 Payment Procedures.
Payments in respect of the Trust Preferred Securities shall be made by
check mailed to the address of the Person entitled thereto as such address shall
appear on the books and records of the Trust or, if the Trust Preferred
Securities are held by a Clearing Agency, such Distributions shall be made to
the Clearing Agency in immediately available funds, in accordance with the
applicable depository agreement on the applicable Distribution dates or
Redemption Dates. Payments, if any, in respect of the Trust Common Securities
shall be made in such manner as shall be mutually agreed between the Property
Trustee and the Holder of the Trust Common Securities.
SECTION 7.6 Tax Reporting, Etc.
The Administrative Trustees shall prepare (or cause to be prepared), at
the Sponsor's expense, and file all United States Federal, State and local tax
and information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared or filed) Form 1041 or the appropriate Internal Revenue
Service form required to be filed in respect of the Trust in each taxable year
of the Trust and (b) prepare and furnish (or cause to be prepared and furnished)
to each Holder a Form 1099 or the appropriate Internal Revenue Service form
required to be furnished to such Holder or the information required to be
provided on such form. The Administrative Trustees shall provide the Sponsor and
the Property Trustee with a copy of all such returns, reports and schedules
promptly after such filing or furnishing. The Trustees shall comply with United
States Federal withholding and backup withholding tax laws and information
reporting requirements with respect to any payments to Holders under the Trust
Securities.
SECTION 7.7 Payment of Additional Sums by the Property Trustee.
Upon receipt under the Subordinated Debentures of Additional Sums the
Property Trustee, upon receipt of written notice from the Sponsor or the
Administrative Trustees, shall promptly pay from such Additional Sums any taxes,
duties or governmental charges of whatsoever nature (other than withholding
taxes) imposed on the Trust by the United States or any other taxing authority.
SECTION 7.8 Payments under Indenture.
Any amount payable hereunder to any Holder of Trust Preferred
Securities shall be reduced by the
<PAGE> 55
amount of any corresponding payment such Holder (or a related Trust Preferred
Security Beneficial Owner) has directly received pursuant to the Subordinated
Indenture in accordance with the terms of Section 8.2(c) hereof.
ARTICLE VIII
ISSUANCE OF TRUST SECURITIES
SECTION 8.1 Designation and General Provisions Regarding
TrustSecurities.
(a) The Administrative Trustees shall on behalf of the Trust issue one
class of preferred securities representing undivided preferred beneficial
interests in the assets of the Trust and one class of common securities
representing undivided subordinated beneficial interests in the assets of
the Trust as follows:
(i) Trust Preferred Securities. _________ _____% Trust
Convertible Preferred Securities of the Trust (including _______ ___%
Trust Convertible Preferred Securities subject to issuance upon
exercise of the Over-Allotment Option) with an aggregate Liquidation
Amount with respect to the assets of the Trust of
____________________________________________ Dollars
(($______________), ______________________________________ Dollars
($______________) if the Over-Allotment Option is exercised in full)
and a Liquidation Amount with respect to the assets of the Trust of $50
per trust preferred security, are hereby designated for the purpose of
identification only as ____% Trust Convertible Preferred Securities
(the "Trust Preferred Securities"). The Trust Preferred Security
Certificates evidencing the Trust Preferred Securities shall be
substantially in the form of Exhibit A-1 to the Declaration, with such
changes and additions thereto or deletions therefrom as may be required
by ordinary usage, custom or practice or to conform to the rules of any
stock exchange on which the Trust Preferred Securities are listed.
(ii) Trust Common Securities. _______ ___% Trust Convertible
Common Securities of the Trust (including ______ ___% Trust Convertible
Common Securities subject to issuance if the Over-Allotment Option is
exercised in full) with an aggregate Liquidation Amount with respect to
the assets of the Trust of
____________________________________________________ Dollars
(($____________) (_____________________________________________ Dollars
($_____________) if the Over-Allotment Option is exercised in full) and
a Liquidation Amount with respect to the assets of the Trust of $50 per
trust common security, are hereby designated for the purposes of
identification only as ___% Trust Convertible Common Securities (the
"Trust Common Securities"). The Trust Common Security Certificates
evidencing the Trust Common Securities shall be substantially in the
form of Exhibit A-2 to the Declaration, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage,
custom or practice.
<PAGE> 56
(iii) All Trust Securities issued by the Trust shall be deemed to
have been issued on the Closing Date.
(b) Except as provided in Section 9.2(b) of this Declaration, the Trust
Preferred Securities rank pari passu, and payment thereon shall be made Pro
Rata, with the Trust Common Securities. The Trust shall issue no securities
or other interests in the assets of the Trust other than the Trust Preferred
Securities and the Trust Common Securities.
(c) Any Administrative Trustee shall sign the Trust Securities for the
Trust by manual or facsimile signature. In case any Administrative Trustee
of the Trust who shall have signed any of the Trust Securities shall cease
to be an Administrative Trustee before the Certificates so signed shall be
delivered by the Trust, such Certificates nevertheless may be delivered as
though the person who signed such Certificates had not ceased to be such
Administrative Trustee; and any Certificate may be signed on behalf of the
Trust by such persons who, at the actual date of execution of such Trust
Security, shall be the Administrative Trustees of the Trust, although at the
date of the execution and delivery of the Declaration any such person was
not such an Administrative Trustee. Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as evidenced by their
execution thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the
Administrative Trustees may deem appropriate, or as may be required to
comply with any law or with any rule or regulation of any stock exchange on
which Trust Securities may be listed, or to conform to usage.
A Trust Security shall not be valid until authenticated by the manual
signature of an authorized officer of the Property Trustee. Such signature shall
conclusively evidence that the Trust Security has been authenticated under this
Declaration.
Trust Securities shall be dated the date of their authentication.
Upon a written order of the Trust signed by one Administrative Trustee,
the Property Trustee shall authenticate the Trust Securities for original issue.
The aggregate Liquidation Amount of Trust Securities outstanding at any time
shall not exceed the Liquidation Amount set forth in Section 8.1(a).
The Property Trustee may appoint an authenticating agent acceptable to
the Trust to authenticate Trust Securities. An authenticating agent may
authenticate Trust Securities whenever the Property Trustee may do so. Each
reference in this Declaration to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Property Trustee to deal with the Sponsor or an Affiliate of the Sponsor.
(d) The consideration received by the Trust for the issuance of the
Trust Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
<PAGE> 57
(e) Upon issuance of the Trust Securities as provided in this
Declaration, the Trust Securities so issued shall be deemed to be validly
issued, fully paid and non-assessable.
(f) Every Person, by virtue of having become a Holder or a Trust
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the
terms of, and shall be bound by, this Declaration.
SECTION 8.2 Voting Rights of Trust Preferred Securities.
(a) Except as provided under Sections 6.7(a), this Article VIII and
Article XIII and as otherwise required by the Business Trust Act, the Trust
Indenture Act and other applicable law, the Holders of the Trust Preferred
Securities will have no voting rights.
(b) Subject to the requirement of the Property Trustee obtaining an
Opinion of Counsel in certain circumstances set forth in Section 8.2(d)
below, the Holders of a Majority in Liquidation Amount of the Trust
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee,
or direct the exercise of any trust or power conferred upon the Property
Trustee under the Declaration, including the right to direct the Property
Trustee, as Holder of the Subordinated Debentures, to (i) exercise the
remedies available to it under the Subordinated Indenture as a Holder of the
Subordinated Debentures or (ii) consent to any amendment, modification, or
termination of the Subordinated Indenture or the Subordinated Debentures
where such consent shall be required; provided, however, that where a
consent or action under the Subordinated Indenture would require the consent
or act of the Holders of more than a majority of the outstanding principal
amount of the Subordinated Debentures affected thereby, only the Holders of
the percentage of the aggregate stated Liquidation Amount of the Trust
Preferred Securities which is at least equal to such required percentage of
the principal amount of Subordinated Debentures may direct the Property
Trustee to give such consent or take such action; provided further, however,
that (subject to the provisions of Section 3.9) the Property Trustee shall
have the right to decline to follow any such direction if the Property
Trustee, being advised by counsel, determines that the action or proceeding
so directed may not lawfully be taken or if the Property Trustee, in good
faith, by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees, and/or Responsible Officers, shall
determine that the action or proceeding so directed would involve the
Property Trustee in personal liability.
(c) If the Property Trustee fails to enforce its rights under the
Subordinated Indenture after a Holder of Trust Preferred Securities has made
a written request, such Holder of Trust Preferred Securities may, to the
fullest extent permitted by law, institute a legal proceeding directly
against the Company, to enforce the Property Trustee's rights under the
Subordinated Indenture without first instituting any legal proceeding
against the Property Trustee or any other
<PAGE> 58
person or entity. Notwithstanding the foregoing, if a Trust Enforcement
Event has occurred and is continuing and such event is attributable to the
failure of the Company to make any required payment when due on the
Subordinated Debentures, then a Holder of Trust Preferred Securities may
directly institute a proceeding against the Company for enforcement such
payment.
(d) The Property Trustee shall notify all Holders of the Trust
Preferred Securities of any notice of any Trust Enforcement Event received
from the Company with respect to the Subordinated Debentures. Except with
respect to directing the time, method, and place of conducting a proceeding
for a remedy, the Property Trustee shall be under no obligation to take any
of the actions described in Section 8.2(b)(i) and (ii) above unless the
Property Trustee has obtained an Opinion of Counsel (which counsel shall be
independent tax counsel) to the effect that as a result of such action, the
Trust will not be taxable as a corporation for United States federal income
tax purposes and that after such action each Holder will continue to be
treated as owning an undivided beneficial ownership interest in the
Subordinated Debentures.
(e) In the event the consent of the Property Trustee, as the Holder of
the Subordinated Debentures, is required under the Subordinated Indenture
with respect to any amendment, modification or termination of the
Subordinated Indenture, the Property Trustee shall request the direction of
the Holders of the Trust Securities with respect to such amendment,
modification or termination and shall vote with respect to such amendment,
modification or termination as directed by a Majority in Liquidation Amount
of the Trust Securities voting together as a single class; provided,
however, that where a consent under the Subordinated Indenture would require
the consent of the Holders of more than a majority of the aggregate
principal amount of the Subordinated Debentures, the Property Trustee may
only give such consent at the direction of the Holders of at least the same
proportion in aggregate stated Liquidation Amount of the Trust Securities.
The Property Trustee shall not take any such action in accordance with the
directions of the Holders of the Trust Securities unless the Property
Trustee has obtained an Opinion of Counsel to the effect that, as a result
of such action, the Trust will not be classified as other than a grantor
trust for United States federal income tax purposes.
(f) Any required approval or direction of Holders of Trust Preferred
Securities may be given at a separate meeting of Holders of Trust Preferred
Securities convened for such purpose, at a meeting of all the Holders of
Trust Securities or pursuant to written consent. In accordance with Section
13.2, the Administrative Trustees will cause a notice of any meeting at
which Holders of Trust Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken,
to be mailed to each Holder of Trust Preferred Securities. Each such notice
will include a statement setting forth the following information: (i) the
date of such meeting or the date by which such action is to be taken; (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon which written
consent is sought; and (iii) instructions for the delivery of proxies or
consents.
<PAGE> 59
(g) No vote or consent of the Holders of Trust Preferred Securities
will be required for the Trust to redeem and cancel Trust Preferred
Securities or distribute Subordinated Debentures in accordance with the
Declaration.
(h) Notwithstanding that Holders of Trust Preferred Securities are
entitled to vote or consent under any of the circumstances described above,
any of the Trust Preferred Securities that are beneficially owned at such
time by the Company or any entity directly or indirectly controlled by, or
under direct or indirect common control with, the Company, shall not be
entitled to vote or consent and shall, for purposes of such vote or consent,
be treated as if such Trust Preferred Securities were not outstanding,
except for Trust Preferred Securities purchased or acquired by the Company
or its Affiliates in connection with transactions effected by or for the
account of customers of the Company or any of its subsidiaries or in
connection with the distribution or trading of such Trust Preferred
Securities; provided, however, that Persons (other than Affiliates of the
Company) to whom the Company or any of its subsidiaries have pledged Trust
Preferred Securities may vote or consent with respect to such pledged Trust
Preferred Securities pursuant to the terms of such pledge.
(i) Holders of the Trust Preferred Securities will have no
rights to appoint or remove the Administrative Trustees, who may be
appointed, removed or replaced solely by the Company, as the Holder of
all the Trust Common Securities.
SECTION 8.3 Voting Rights of Trust Common Securities.
(a) Except as provided under this Section 8.3 or as otherwise required
by the Business Trust Act, the Trust Indenture Act or other applicable law
or provided by the Declaration, the Holders of the Trust Common Securities
will have no voting rights.
(b) The Holders of the Trust Common Securities are entitled, in
accordance with Article VI of this Declaration, to vote to appoint, remove
or replace any Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after all Trust
Enforcement Events with respect to the Trust Preferred Securities have been
cured, waived, or otherwise eliminated and subject to the requirement of the
Property Trustee obtaining an Opinion of Counsel in certain circumstances
set forth in this paragraph (c), the Holders of a Majority in Liquidation
Amount of the Trust Common Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to
the Property Trustee, or direct the exercise of any trust or power conferred
upon the Property Trustee under the Declaration, including the right to
direct the Property Trustee, as Holder of the Subordinated Debentures, to
exercise the remedies available to it under the Subordinated Indenture as a
Holder of the Subordinated Debentures; provided, however, that (subject to
the provisions of Section 3.9) the Property Trustee shall have
<PAGE> 60
the right to decline to follow any such direction if the Property Trustee,
being advised by counsel, determines that the action or proceeding so
directed may not lawfully be taken or if the Property Trustee, in good
faith, by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees, and/or Responsible Officers, shall
determine that the action or proceeding so directed would involve the
Property Trustee in personal liability. Except with respect to directing the
time, method and place of conducting a proceeding for a remedy, the Property
Trustee shall be under no obligation to take any of the actions described
above in this Section 8.3(c) unless the Property Trustee has obtained an
Opinion of Counsel (which counsel shall be independent tax counsel) to the
effect that, as a result of such action, for United States federal income
tax purposes the Trust will not be taxable as a corporation for United
States federal income tax purposes and each Holder will be treated as owning
an undivided beneficial ownership interest in the Subordinated Debentures
and Trust Guarantees.
(d) If the Property Trustee fails to enforce its rights under the
Subordinated Debentures after a Holder of Trust Common Securities has made a
written request, such Holder of Trust Common Securities may, to the fullest
extent permitted by law, institute a legal proceeding directly against the
Company to enforce the Property Trustee's rights under the Subordinated
Debentures without first instituting any legal proceeding against the
Property Trustee or any other person or entity.
(e) Any required approval or direction of Holders of Trust Common
Securities may be given at a separate meeting of Holders of Trust Common
Securities convened for such purpose, at a meeting of all the Holders of
Trust Securities or pursuant to written consent. In accordance with Section
13.2, the Administrative Trustees will cause a notice of any meeting at
which Holders of Trust Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken,
to be mailed to each Holder of record of Trust Common Securities. Each such
notice will include a statement setting forth the following information: (i)
the date of such meeting or the date by which such action is to be taken;
(ii) a description of any resolution proposed for adoption at such meeting
on which such Holders are entitled to vote or of such matter upon which
written consent is sought; and (iii) instructions for the delivery of
proxies or consents.
(f) No vote or consent of the Holders of the Trust Common Securities
shall be required for the Trust to redeem and cancel Trust Common Securities
or to distribute Subordinated Debentures in accordance with the Declaration
and the terms of the Trust Securities.
SECTION 8.4 Paying Agent.
In the event that the Trust Preferred Securities are not in book-entry
only form, the Trust shall maintain in the Borough of Manhattan, City of New
York, State of New York, an office or agency where the Trust Preferred
Securities may be presented for payment ("Paying Agent"). The Trust may appoint
the Paying Agent and may appoint one or more additional
<PAGE> 61
paying agents in such other locations as it shall determine. The term "Paying
Agent" includes any additional paying agent. The Trust may change any Paying
Agent without prior notice to any Holder. The Trust shall notify the Property
Trustee of the name and address of any Paying Agent not a party to this
Declaration. If the Trust fails to appoint or maintain another entity as Paying
Agent, the Property Trustee shall act as such. The Trust or any of its
Affiliates may act as Paying Agent. The Bank of New York shall initially act as
Paying Agent for the Trust Preferred Securities and the Trust Common Securities.
SECTION 8.5 Listing.
The Sponsor shall use its reasonable commercial efforts to cause the
Trust Preferred Securities to be listed for trading on the Nasdaq National
Market System.
SECTION 8.6 Acceptance of Trust Guarantees.
Each Holder of Trust Preferred Securities and Trust Common Securities,
by the acceptance thereof, agrees to the provisions of the applicable Trust
Guarantees, including the subordination provisions therein.
ARTICLE IX
TERMINATION AND LIQUIDATION
OF THE TRUST
SECTION 9.1 Termination of Trust.
(a) The Trust shall terminate:
(i) upon the bankruptcy of the Holder of Trust Common
Securities or the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor, the filing of a certificate of
cancellation with respect to the Trust after having obtained the
consent of at least a Majority in Liquidation Amount of the Trust
Securities, voting together as a single class, to file such certificate
of cancellation, or the revocation of the Sponsor's charter and the
expiration of 90 days after the date of revocation without a
reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor or the Trust;
(iv) when all of the Trust Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have
been paid to the Holders in accordance with the terms of the Trust
Securities;
<PAGE> 62
(v) upon the election of the Administrative Trustees, following
the occurrence and continuation of a Trust Special Event, pursuant to
which the Trust shall give the Exchange Notice in accordance with
Section 7.4(b) and all of the Subordinated Debentures shall have been
distributed to the Holders of Trust Securities in exchange for all of
the Trust Securities;
(vi) before the issuance of any Trust Securities, with the
consent of all of the Administrative Trustees and the Sponsor;
(vii) upon the distribution of the Subordinated Debentures to the
Holders of the Trust Securities, if the Sponsor has given written
instruction to the Property Trustee to terminate the Trust (which
direction may be given in the sole discretion of the Sponsor); or
(viii) upon the conversion of all of the Trust Securities in
accordance with Section 7.3.
(b) As soon as is practicable after the occurrence of an event referred
to in Section 9.1(a), the Administrative Trustees shall file a certificate
of cancellation with the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article XI shall survive the
termination of the Trust.
SECTION 9.2 Liquidation Distribution Upon Termination and Dissolution
of the Trust.
(a) In the event of any voluntary or involuntary liquidation,
dissolution, winding-up or termination of the Trust (each a "Trust
Liquidation"), the Holders of the Trust Preferred Securities on the date of
the Trust Liquidation will be entitled to receive, out of the assets of the
Trust available for distribution to Holders of Trust Securities after
satisfaction of the Trust's liabilities and creditors, distributions in cash
or other immediately available funds in an amount equal to the aggregate of
the stated Liquidation Amount of $50 per Trust Security plus accumulated and
unpaid Distributions thereon to the date of payment (such amount being the
"Trust Liquidation Distribution"), unless, in connection with such Trust
Liquidation, Subordinated Debentures shall be distributed (as provided in
Section 9.1(a)) on a Pro Rata basis to the Holders of the Trust Securities
in exchange for such Trust Securities.
(b) If, upon any such Trust Liquidation, the Trust Liquidation
Distribution can be paid only in part because the Trust has insufficient
assets available to pay in full the aggregate Trust Liquidation
Distribution, then the amounts payable directly by the Trust on the Trust
Securities shall be paid on a Pro Rata basis. The Holders of the Trust
Common Securities will be entitled to receive distributions upon any such
Trust
<PAGE> 63
Liquidation Pro Rata with the Holders of the Trust Preferred Securities;
provided, however, that if on any Distribution Date or Redemption Date a
Debenture Event of Default shall have occurred and be continuing, no payment
of any Distribution on, or the Redemption Price or Optional Redemption Price
of, any Trust Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Trust Common Securities,
shall be made unless payment in full in cash of all accumulated and unpaid
Distributions on all outstanding Trust Preferred Securities for all
Distribution periods terminating on or prior thereto, or in the case of
payment of the Redemption Price or Optional Redemption Price the full amount
of such Redemption Price or Optional Redemption Price on all outstanding
Trust Preferred Securities, shall have been made or provided for, and all
funds immediately available to the Property Trustee shall first be applied
to the payment in full in cash of all Distributions on, or the Redemption
Price or Optional Redemption Price of, Trust Preferred Securities then due
and payable.
ARTICLE X
TRANSFER OF INTERESTS
SECTION 10.1 Transfer and Exchange of Trust Securities.
(a) Trust Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and
in the terms of the Trust Securities. To the fullest extent permitted by
law, any transfer or purported transfer of any Trust Security not made in
accordance with this Declaration shall be null and void.
(b) Subject to this Article X, Trust Preferred Securities shall be
freely transferable.
(c) At the option of the Holder, Trust Securities of any class (except
a Global Security) may be exchanged for other Trust Securities of the same
class, and of a like aggregate Liquidation Amount and tenor, upon surrender
of the Trust Securities to be exchanged at the office of the Registrar.
Whenever any Trust Securities are so surrendered for exchange, the
Administrative Trustees shall execute, and the Property Trustee shall
authenticate and deliver, the Trust Securities which the Holder making the
exchange is entitled to receive.
SECTION 10.2 Transfer of Certificates.
The Administrative Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Administrative Trustees
may require) in respect of any tax or other government charges that may be
imposed in relation to it. Upon surrender for registration of transfer of any
Certificate, the Administrative Trustees shall cause one or more new
Certificates to be issued in the name of the designated transferee or
transferees. Every Certificate surrendered for registration of transfer shall be
accompanied by a written instrument of transfer in form
<PAGE> 64
satisfactory to the Administrative Trustees and the Property Trustee duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Each Certificate surrendered for registration of transfer shall be canceled by
the Property Trustee. A transferee of a Certificate shall be entitled to the
rights and subject to the obligations of a Holder hereunder upon the receipt by
such transferee of a Certificate. By acceptance of a Certificate, each
transferee shall be deemed to have agreed to be bound by this Declaration.
SECTION 10.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate shall
be registered on the books and records of the Trust as the sole Holder of such
Certificate and of the Trust Securities represented by such Certificate for
purposes of receiving Distributions and for all other purposes whatsoever
(except as provided in Section 7.1(e)) and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such Certificate or in
the Trust Securities represented by such Certificate on the part of any Person,
whether or not the Trust shall have actual or other notice thereof.
SECTION 10.4 Book Entry Interests.
The Trust Preferred Securities Certificates, on original issuance, will
be issued in the form of one or more fully registered, global Trust Preferred
Security Certificates (each a "Global Certificate"), to be delivered to DTC, the
initial Clearing Agency, by, or on behalf of, the Trust. Such Global
Certificates shall initially be registered on the books and records of the Trust
in the name of Cede & Co., the nominee of DTC, and no Trust Preferred Security
Beneficial Owner will receive a definitive Trust Preferred Security Certificate
representing such Trust Preferred Security Beneficial Owner's interests in such
Global Certificates, except as provided in Section 10.7. Unless and until
definitive, fully registered Trust Preferred Security Certificates (the
"Definitive Trust Preferred Security Certificates") have been issued to the
Trust Preferred Security Beneficial Owners pursuant to Section 10.7:
(a) the provisions of this Section 10.4 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the payment
of Distributions on the Global Certificates and receiving approvals, votes
or consents hereunder) as the Holder of the Trust Preferred Securities and
the sole Holder of the Global Certificates and shall have no obligation to
the Trust Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 10.4 conflict
with any other provisions of this Declaration, the provisions of this
Section 10.4 shall control; and
(d) the rights of the Trust Preferred Security Beneficial Owners shall
be exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Trust Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants and the Clearing Agency shall
<PAGE> 65
receive and transmit payments of Distributions on the Global Certificates to
such Clearing Agency Participants. The Clearing Agency will make book entry
transfers among the Clearing Agency Participants; provided, that solely for
the purposes of determining whether the Holders of the requisite amount of
Trust Preferred Securities have voted on any matter provided for in this
Declaration, so long as Definitive Trust Preferred Security Certificates
have not been issued, the Trustees may conclusively rely on, and shall be
fully protected in relying on, any written instrument (including a proxy)
delivered to the Trustees by the Clearing Agency setting forth the Trust
Preferred Security Beneficial Owners' votes or assigning the right to vote
on any matter to any other Persons either in whole or in part.
SECTION 10.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Trust Preferred
Security Holders is required under this Declaration, unless and until Definitive
Trust Preferred Security Certificates shall have been issued to the Trust
Preferred Security Beneficial Owners pursuant to Section 10.7, the Trustee or
Trustees required or authorized to give any such notice or communication shall
give all such notices and communications specified herein to be given to the
Trust Preferred Security Holders to the Clearing Agency, and shall have no
notice obligations to the Trust Preferred Security Beneficial Owners.
SECTION 10.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue, or becomes ineligible to
continue, its services as securities depositary with respect to the Trust
Preferred Securities, the Administrative Trustees may, in their sole discretion,
appoint a successor Clearing Agency with respect to such Trust Preferred
Securities.
SECTION 10.7 Definitive Trust Preferred Security Certificates.
If:
(a) a Clearing Agency elects to discontinue, or becomes
ineligible to continue, its services as securities depositary with
respect to the Trust Preferred Securities and a successor Clearing
Agency is not appointed within 90 days after such discontinuance or
ineligibility pursuant to Section 10.6, or
(b) the Administrative Trustees elect after consultation with
the Sponsor to terminate the book entry system through the Clearing
Agency with respect to the Trust Preferred Securities, or
(c) there is a Trust Enforcement Event,
then:
<PAGE> 66
(y) Definitive Trust Preferred Security Certificates shall be prepared
by the Administrative Trustees on behalf of the Trust with respect to such
Trust Preferred Securities; and
(z) upon surrender of the Global Certificates by the Clearing Agency,
accompanied by registration instructions, the Administrative Trustees shall
cause Definitive Trust Preferred Security Certificates to be delivered to
Trust Preferred Security Beneficial Owners in accordance with the
instructions of the Clearing Agency. Neither the Trustees nor the Trust
shall be liable for any delay in delivery of such instructions and each of
them may conclusively rely on and shall be fully protected in relying on,
said instructions of the Clearing Agency. The Definitive Trust Preferred
Security Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the
Administrative Trustees, as evidenced by their execution thereof, and may
have such letters, numbers or other marks of identification or designation
and such legends or endorsements as the Administrative Trustees may deem
appropriate, or as may be required to comply with any law or with any rule
or regulation made pursuant thereto or with any rule or regulation of any
stock exchange on which Trust Preferred Securities may be listed, or to
conform to usage.
SECTION 10.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificate should be surrendered to the Property
Trustee, or if the Property Trustee shall receive evidence to its
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Administrative Trustees and the
Property Trustee such security or indemnity as may be required by them to
keep each of them harmless, then, in the absence of notice that such
Certificate shall have been acquired by a bona fide purchaser, any
Administrative Trustee on behalf of the Trust shall execute and the Property
Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Certificate, a new Certificate of
like denomination. In connection with the issuance of any new Certificate
under this Section 10.8, the Administrative Trustees or the Property Trustee
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the relevant Trust
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 10.9 Cancellation.
All Trust Securities surrendered for payment, redemption, transfer or
exchange shall, if surrendered to any Person other than the Property Trustee, be
delivered to the Property
<PAGE> 67
Trustee and shall be promptly canceled by it. A Holder may at any time deliver
to the Property Trustee for cancellation any Trust Securities previously
authenticated and delivered hereunder, which the Holder may have acquired in any
manner whatsoever, and all Trust Securities so delivered shall be promptly
canceled by the Property Trustee. No Trust Securities shall be authenticated in
lieu of or in exchange for any Trust Securities canceled as provided in this
Section, except as expressly permitted by this Declaration. All canceled Trust
Securities held by the Property Trustee shall be disposed of in accordance with
its customary procedures, and the Property Trustee shall thereafter deliver to
the Administrative Trustees a certificate with respect to such disposition.
SECTION 10.10 Appointment of Registrar and Transfer Agent.
The Administrative Trustees hereby appoint the Property Trustee, The
Bank of New York, as registrar and transfer agent with respect to the Trust
Securities.
ARTICLE XI
LIMITATION OF LIABILITY OF
HOLDERS OF TRUST SECURITIES,
TRUSTEES OR OTHERS
SECTION 11.1 Liability.
(a) Except as expressly set forth in this Declaration, the Trust
Guarantees and the terms of the Trust Securities, the Sponsor and the
Trustees shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Trust Securities, which shall be made solely from assets of the Trust;
or
(ii) required to pay to the Trust or to any Holder of Trust
Securities any deficit upon dissolution of the Trust or otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the Holders
of the Trust Securities shall be entitled to the same limitation of personal
liability extended to shareholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 11.2 Exculpation.
(a) No Company Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Company Indemnified Person in good faith on
behalf of the Trust and in a manner such Company Indemnified Person
reasonably believed to be within the scope of the authority conferred
<PAGE> 68
on such Company Indemnified Person by this Declaration or by law, except
that a Company Indemnified Person shall be liable for any such loss, damage
or claim incurred by reason of such Company Indemnified Person's gross
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and, if selected by such Indemnified
Person, has been selected by such Indemnified Person with reasonable care by
or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets
from which Distributions to Holders of Trust Securities might properly be
paid.
SECTION 11.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to any other Covered
Person for its good faith reliance on the provisions of this Declaration.
The provisions of this Declaration, to the extent that they restrict the
duties and liabilities of an Indemnified Person otherwise existing at law or
in equity (other than the duties imposed on the Property Trustee under the
Trust Indenture Act), are agreed by the parties hereto to replace such other
duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Person; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Trust Securities,
the Indemnified Person shall resolve such conflict of interest, take
such action or provide such terms, considering in each case the
relative interest of each party (including its own interest) to such
conflict, agreement, transaction or situation and the benefits and
burdens relating to such interests, any customary or accepted industry
practices, and any applicable generally accepted accounting practices
or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the
Indemnified Person shall not constitute a breach of this Declaration
or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise.
<PAGE> 69
(c) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this
Declaration or by applicable law.
SECTION 11.4 Indemnification.
(a) (i) To the fullest extent permitted by applicable law, the
Sponsor shall indemnify and hold harmless any Company Indemnified
Person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action
by or in the right of the Trust) by reason of the fact that he is or
was a Company Indemnified Person against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that the Company Indemnified
Person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the fullest extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Trust and except that no such indemnification shall be
made in respect of any claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be liable to the Trust
unless and only to the extent that the Court of Chancery of
<PAGE> 70
Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which
such Court of Chancery or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 11.4(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the fullest
extent permitted by law, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 11.4(a) (unless ordered by a court) shall be made by the
Sponsor only as authorized in the specific case upon a determination
that indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1)
by the Administrative Trustees by a majority vote of a quorum
consisting of such Administrative Trustees who were not parties to such
action, suit or proceeding, (2) if such a quorum is not obtainable, or,
even if obtainable, if a quorum of disinterested Administrative
Trustees so directs, by independent legal counsel in a written opinion,
or (3) by the Holder of the Trust Common Securities.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i)
and (ii) of this Section 11.4(a) shall be paid by the Sponsor in
advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such Company
Indemnified Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Sponsor as
authorized in this Section 11.4(a). Notwithstanding the foregoing, no
advance shall be made by the Sponsor if a determination is reasonably
and promptly made (i) by the Administrative Trustees by a majority vote
of a quorum of disinterested Administrative Trustees, (ii) if such a
quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested Administrative Trustees so directs, by independent legal
counsel in a written opinion or (iii) the Holder of the Trust Common
Securities, that, based upon the facts known to the Administrative
Trustees, counsel or the Holder of the Trust Common Securities at the
time such determination is made, such Company Indemnified Person acted
in bad faith or in a manner that such person did not believe to be in
or not opposed to the best interests of the Trust, or, with respect to
any criminal proceeding, that such Company Indemnified Person believed
or had reasonable cause to believe his
<PAGE> 71
conduct was unlawful. In no event shall any advance be made in
instances where the Administrative Trustees, independent legal counsel
or the Holder of the Trust Common Securities reasonably determine that
such person deliberately breached his duty to the Trust or Holders of
Trust Securities.
(vi) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this Section
11.4(a) shall not be deemed exclusive of any other rights to which
those seeking indemnification and advancement of expenses may be
entitled under any agreement, vote of shareholders or disinterested
directors of the Sponsor or Holders of the Trust Preferred Securities
or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office. All rights to
indemnification under this Section 11.4(a) shall be deemed to be
provided by a contract between the Sponsor and each Company Indemnified
Person who serves in such capacity at any time while this Section
11.4(a) is in effect. Any repeal or modification of this Section
11.4(a) shall not affect any rights or obligations then existing.
(vii) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or
not the Sponsor would have the power to indemnify him against such
liability under the provisions of this Section 11.4(a).
(viii) For purposes of this Section 11.4(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity,
any constituent entity (including any constituent of a constituent)
absorbed in a consolidation or merger, so that any person who is or was
a director, trustee, officer or employee of such constituent entity, or
is or was serving at the request of such constituent entity as a
director, trustee, officer, employee or agent of another entity, shall
stand in the same position under the provisions of this Section 11.4(a)
with respect to the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence had
continued.
(ix) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Section 11.4(a) shall, unless
otherwise provided when authorized or ratified, continue as to a Person
who has ceased to be a Company Indemnified Person and shall inure to
the benefit of the heirs, executors and administrators of such a
Person.
(b) To the fullest extent permitted by law, the Sponsor agrees to
indemnify the (i) Property Trustee, (ii) the Delaware Trustee, (iii) any
Affiliate of the Property Trustee and the Delaware Trustee, and (iv) any
officers, directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the Property Trustee and
the Delaware Trustee (each of the Persons in (i) through (iv) being
referred to as a "Fiduciary Indemnified Person") for, and to hold each
Fiduciary Indemnified Person harmless against, any loss, damage, claim,
<PAGE> 72
liability or expense including taxes (other than taxes based on the income
of the Property Trustee or Delaware Trustee) incurred without negligence or
bad faith on the part of the Property Trustee or Delaware Trustee arising
out of or in connection with the acceptance or administration of the trust
or trusts hereunder, including the costs and expenses (including reasonable
legal fees and expenses) of defending itself against or investigating any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligation to indemnify as set forth in
this Section 11.4(b) shall survive the dissolution of the Trust and the
termination of this Declaration.
SECTION 11.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the Property
Trustee (subject to Section 6.3(c)) may engage in or possess an interest
in other business ventures of any nature or description, independently or
with others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders of Trust Securities shall have no rights by virtue
of this Declaration in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful
or improper. No Covered Person, the Sponsor, the Delaware Trustee, nor the
Property Trustee shall be obligated to present any particular investment
or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust,
and any Covered Person, the Sponsor, the Delaware Trustee and the Property
Trustee shall have the right to take for its own account (individually or
as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person, the Delaware Trustee
and the Property Trustee may engage or be interested in any financial or
other transaction with the Sponsor or any Affiliate of the Sponsor, or may
act as depositary for, trustee or agent for, or act on any committee or
body of Holders of, securities or other obligations of the Sponsor or its
Affiliates.
ARTICLE XII
ACCOUNTING
SECTION 12.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year.
SECTION 12.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Administrative Trustees shall keep, or cause to be kept, full books of
account, records and supporting documents, which shall reflect in
reasonable detail, each transaction of the Trust. The books of account
shall be maintained on the accrual method of accounting, in accordance with
generally accepted accounting principles, consistently applied. The books
of account and the records of the Trust shall be examined by and reported
upon as of the end of each
<PAGE> 73
Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Administrative Trustees.
(b) The Administrative Trustees shall cause to be duly prepared and
delivered to each of the Holders of Trust Securities, any annual United
States federal income tax information statement, required by the Code,
containing such information with regard to the Trust Securities held by each
Holder as is required by the Code and the Treasury Regulations.
Notwithstanding any right under the Code to deliver any such statement at a
later date, the Administrative Trustees shall endeavor to deliver all such
statements within 30 days after the end of each Fiscal Year of the Trust.
(c) The Administrative Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United States federal
income tax return, on a Form 1041 or such other form required by United
States federal income tax law, and any other annual income tax returns
required to be filed by the Administrative Trustees on behalf of the Trust
with any state or local taxing authority.
SECTION 12.3 Banking.
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Subordinated Debentures held by the Property Trustee shall be
made directly to the Property Account and no other funds of the Trust shall be
deposited in the Property Account. The sole signatories for such accounts shall
be designated by the Administrative Trustees; provided, however, that the
Property Trustee shall designate the signatories for the Property Account.
SECTION 12.4 Withholding.
The Trust and the Administrative Trustees shall comply with all
withholding requirements under United States federal, state and local law. The
Trust shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably be
requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Administrative Trustees shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder, the amount withheld shall
be deemed to be a distribution in the amount of the withholding to the Holder.
In the event of any claim over withholding, Holders shall be limited to an
action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding. Notwithstanding
anything herein to the contrary, the Trust and the Administrative Trustees
shall, absent receipt of an opinion of nationally recognized tax counsel to the
contrary, withhold thirty-one percent (31%) (or such other rate as may be
imposed as a result of an amendment to the Code or such lower rate
<PAGE> 74
as may be imposed under an applicable income tax treaty) on the gross amount of
any Distributions on Trust Preferred Securities held by a Holder that is not a
"United States person" within the meaning of Section 7701(a)(30) of the Code.
ARTICLE XIII
AMENDMENTS AND MEETINGS
SECTION 13.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Trust Securities, this Declaration may only be
amended by a written instrument approved and executed by:
(i) the Administrative Trustees (or, if there are more than two
Administrative Trustees, a majority of the Administrative Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property
Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware
Trustee.
(b) No amendment shall be made, and any such purported amendment shall
be void and ineffective:
(i) unless, in the case of any proposed amendment, the Property
Trustee shall have first received an Officers' Certificate from each of
the Trust and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration;
(ii) unless, in the case of any proposed amendment which affects
the rights, powers, duties, obligations or immunities of the Property
Trustee, the Property Trustee shall have first received an Opinion of
Counsel (who may be counsel to the Sponsor or the Trust) that such
amendment is permitted by, and conforms to, the terms of this
Declaration; and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be classified
for purposes of United States federal income taxation as a
grantor trust;
(B) cause the Trust to be taxable as a corporation;
<PAGE> 75
(C) reduce or otherwise adversely affect the powers of
the Property Trustee in contravention of the Trust Indenture Act;
or
(D) cause the Trust to be deemed to be an Investment
Company required to be registered under the 1940 Act.
(c) In the event the consent of the Property Trustee, as the Holder of
the Subordinated Debentures, is required under the Subordinated Indenture
with respect to any amendment, modification or termination of the
Subordinated Indenture or the Subordinated Debentures, the Property Trustee
shall request the direction of the Holders of the Trust Securities with
respect to such amendment, modification or termination and shall vote with
respect to such amendment, modification or termination as directed by a
Majority in Liquidation Amount of the Trust Securities voting together as a
single class; provided, however, that where a consent under the Subordinated
Indenture would require the consent of a Super Majority of the Holders of
Subordinated Debentures the Property Trustee may only give such consent at
the direction of the Holders of at least the proportion in Liquidation
Amount of the Trust Securities which the relevant Super Majority represents
of the aggregate principal amount of the Subordinated Debentures
outstanding; provided, further, that the Property Trustee shall not be
obligated to take any action in accordance with the directions of the
Holders of the Trust Securities under this Section 13.1(c) unless the
Property Trustee has obtained an Opinion of Counsel (which counsel shall be
independent tax counsel) to the effect that for United States federal income
tax purposes the Trust will continue to be classified as a grantor trust
after consummation of such action and each Holder will be treated as owning
an undivided beneficial ownership interest in the Subordinated Debentures.
(d) At such time after the Trust has issued any Trust Securities that
remain outstanding, any amendment that would (i) adversely affect the
powers, preferences or special rights of the Trust Securities or (ii)
provide for the dissolution, winding-up or termination of the Trust other
than pursuant to the terms of this Declaration, may be effected only with
the approval of the Holders of at least a Majority in Liquidation Amount of
the Trust Securities affected thereby; provided, that if any amendment or
proposal referred to in clause (i) hereof would adversely affect only the
Trust Preferred Securities or the Trust Common Securities, then only the
affected class will be entitled to vote on such amendment or proposal and
such amendment or proposal shall not be effective except with the approval
of a Majority in Liquidation Amount of such class of Trust Securities.
(e) Section 11.1(b) and this Section 13.1 shall not be amended without
the consent of all of the Holders of the Trust Securities.
(f) Article IV shall not be amended without the consent of the Holders
of a Majority in Liquidation Amount of the Trust Common Securities.
(g) The rights of the Holders of the Trust Common Securities under
Article VI
<PAGE> 76
to increase or decrease the number of, and appoint and remove, Trustees
shall not be amended without the consent of the Holders of a Majority in
Liquidation Amount of the Trust Common Securities.
(h) Notwithstanding Section 13.1(c), this Declaration may be amended
by the Sponsor and the Trustees without the consent of the Holders of the
Trust Securities:
(i) to cure any ambiguity;
(ii) to correct or supplement any provision in this Declaration
that may be defective or inconsistent with any other provision of this
Declaration, or to make any other provisions with respect to matters or
questions arising under this Declaration that shall not be inconsistent
with the other provisions of this Declaration;
(iii) to add to the covenants, restrictions or obligations of the
Sponsor;
(iv) to conform to any change in the 1940 Act or written change
in interpretation or application of the rules and regulations
promulgated thereunder by any legislative body, court, government
agency or regulatory authority;
(v) to conform to any change in the Trust Indenture Act or
written change in interpretation or application of the rules and
regulations promulgated thereunder by any legislative body, court,
government agency or regulatory authority; or
(vi) to modify, eliminate and add to any provision of this
Declaration to such extent as may be necessary; provided, that such
amendments do not have a material adverse effect on the rights,
preferences or privileges of the Holders.
SECTION 13.2 Meetings of the Holders of Trust Securities; Action by
Written Consent.
(a) Meetings of the Holders of any class of Trust Securities may be
called at any time by the Administrative Trustees (or as otherwise provided
in this Declaration) to consider and act on any matter on which Holders of
such class of Trust Securities are entitled to act under the terms of this
Declaration, the Trust Guarantees, the rules of any stock exchange on which
the Trust Preferred Securities are listed or admitted for trading, the
Business Trust Act or other applicable law. The Administrative Trustees
shall call a meeting of the Holders of such class if directed to do so by
the Holders of at least 10% in Liquidation Amount of such class of Trust
Securities. Such direction shall be given by delivering to the
Administrative Trustees one or more notices in a writing stating that the
signing Holders of Trust Securities wish to call a meeting and indicating
the general or specific purpose for which the meeting is to be called. Any
Holders of Trust Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Trust
<PAGE> 77
Securities exercising the right to call a meeting and only those Trust
Securities specified shall be counted for purposes of determining whether
the required percentage set forth in the second sentence of this paragraph
has been met.
(b) Except to the extent otherwise provided in the terms of the Trust
Securities, the following provisions shall apply to meetings of Holders of
Trust Securities:
(i) notice of any such meeting shall be given to all the
Holders of Trust Securities having a right to vote thereat at least
seven days and not more than 60 days before the date of such meeting.
Any action that may be taken at a meeting of the Holders of Trust
Securities may be taken without a meeting if a consent in writing
setting forth the action so taken is signed by the Holders of Trust
Securities owning not less than the minimum amount in Liquidation
Amount of Trust Securities that would be necessary to authorize or
take such action at a meeting at which all Holders of Trust Securities
having a right to vote thereon were present and voting. Prompt notice
of the taking of action without a meeting shall be given to the Holders
of Trust Securities entitled to vote who have not consented in writing.
The Administrative Trustees may specify that any written ballot
submitted to the Holder for the purpose of taking any action without a
meeting shall be returned to the Trust within the time specified by the
Administrative Trustees;
(ii) each Holder of a Trust Security may authorize any Person to
act for it by proxy on all matters in which a Holder of Trust
Securities is entitled to participate, including waiving notice of any
meeting, or voting or participating at a meeting. No proxy shall be
valid after the expiration of 11 months from the date thereof unless
otherwise provided in the proxy. Every proxy shall be revocable at the
pleasure of the Holder of Trust Securities executing it. Except as
otherwise provided herein, all matters relating to the giving, voting
or validity of proxies shall be governed by the DGCL relating to
proxies, and judicial interpretations thereunder, as if the Trust were
a Delaware corporation and the Holders of the Trust Securities were
shareholders of a Delaware corporation;
(iii) each meeting of the Holders of the Trust Securities shall
be conducted by the Administrative Trustees or by such other Person
that the Administrative Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the Trust
Indenture Act, the Trust Guarantees or the listing rules of any stock
exchange on which the Trust Preferred Securities are then listed for
trading otherwise provides, the Administrative Trustees, in their sole
discretion, shall establish all other provisions relating to meetings
of Holders of Trust Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any
Holders of Trust Securities, waiver of any such notice, action by
consent without a meeting, the establishment of a record date, quorum
requirements, voting in person
<PAGE> 78
or by proxy or any other matter with respect to the exercise of any
such right to vote.
ARTICLE XIV
REPRESENTATIONS OF PROPERTY
TRUSTEE AND DELAWARE TRUSTEE
SECTION 14.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee (with appropriate changes to clause (a)) that:
(a) The Property Trustee is a New York banking corporation with trust
powers, duly organized, validly existing and in good standing under the laws
of New York, with trust power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, the Declaration;
(b) The execution, delivery and performance by the Property Trustee of
the Declaration has been duly authorized by all necessary corporate action
on the part of the Property Trustee. The Declaration has been duly executed
and delivered by the Property Trustee and constitutes a legal, valid and
binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the
court (regardless of whether the enforcement of such remedies is considered
in a proceeding in equity or at law);
(c) The execution, delivery and performance of the Declaration by the
Property Trustee does not conflict with or constitute a breach of the
charter or By-laws of the Property Trustee;
(d) No consent, approval or authorization of, or registration with or
notice to, any New York or federal banking authority is required for the
execution, delivery or performance by the Property Trustee of this
Declaration; and
(e) The Property Trustee, pursuant to this Declaration, shall hold
legal title to, and an ownership interest on behalf of the Holders of the
Trust Securities, in the Subordinated Debentures and agrees that, except as
expressly provided or contemplated by this Agreement, it will not create,
incur or assume, or suffer to exist any mortgage, pledge, hypothecation,
encumbrance, lien or other charge or security interest upon the Subordinated
Debentures.
<PAGE> 79
SECTION 14.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) The Delaware Trustee is a Delaware banking corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware, with power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, the Declaration;
(b) The Delaware Trustee has been authorized to perform its obligations
under the Trust's certificate of trust and the Declaration. The Declaration,
under Delaware law, constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency,
and other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether
the enforcement of such remedies is considered in a proceeding in equity or
at law);
(c) No consent, approval or authorization of, or registration with or
notice to, any Delaware or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of the
Declaration; and
(d) The Delaware Trustee is an entity which has its principal place of
business in the State of Delaware.
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Administrative Trustees at
the Trust's mailing address set forth below (or such other address as the
Trust may give notice of to the Holders of the Trust Securities and the
other Trustees):
AMCV Capital Trust I
c/o American Classic Voyages Co.
Two North Riverside Plaza
Chicago, Illinois 60606
Attention:
<PAGE> 80
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to
the other Trustees):
The Bank of New York
(Delaware)
[insert address]
(c) if given to the Property Trustee, at its Corporate Trust Office to
the attention of the Corporate Trustee Administration Department (or such
other address as the Property Trustee may give notice of to the Holders of
the Trust Securities and the other Trustees).
(d) if given to the Holder of the Trust Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Trust Common Securities may give notice of to the Trust and
the other Trustees):
American Classic Voyages Co.
Two North Riverside Plaza
Chicago, Illinois 60606
Attention:
(e) if given to any other Holder, at the address set forth on the books
and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 15.2 Governing Law.
THIS DECLARATION AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS OF THE STATE OF DELAWARE OR ANY OTHER
JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY JURISDICTION
OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT THERE SHALL NOT BE
APPLICABLE TO THE PARTIES HEREUNDER OR THIS DECLARATION ANY PROVISION OF THE
LAWS (COMMON OR STATUTORY) OF THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT
RELATE TO OR REGULATE, IN A
<PAGE> 81
MANNER INCONSISTENT WITH THE TERMS HEREOF (A) THE FILING WITH ANY COURT OR
GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND
CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER
GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL
OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES
TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE
NATURE, AMOUNT OR CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO
THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G)
THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR
LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE
LIMITATIONS OR AUTHORITIES AND POWERS OF THE TRUSTEES HEREUNDER AS SET FORTH OR
REFERENCED IN THIS DECLARATION. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE
SHALL NOT APPLY TO THE TRUST.
SECTION 15.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be classified
for United States federal income tax purposes as a grantor trust. The provisions
of this Declaration shall be interpreted to further this intention of the
parties.
SECTION 15.4 Acceptance of Terms of Declaration, Trust Guarantees and
Subordinated Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A HOLDER OR BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY
OF ALL THE TERMS AND PROVISIONS OF THIS DECLARATION (AND SUCH HOLDER AND OTHERS
SHALL BE DEEMED TO BE A PARTY TO THIS DECLARATION), THE TRUST GUARANTEES AND THE
SUBORDINATED INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS DECLARATION SHALL
BE BINDING, OPERATIVE AND EFFECTIVE ON THE TRUST AND SUCH HOLDER AND SUCH
OTHERS.
<PAGE> 82
SECTION 15.5 Headings.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 15.6 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 15.7 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 15.8 Counterparts.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees and a duly authorized officer of the Sponsor to one of such
counterpart signature pages. All of such counterpart signature pages shall be
read as though one, and they shall have the same force and effect as though all
of the signers had signed a single signature page.
SECTION 15.9 Consolidations and Mergers.
Upon any consolidation of the Sponsor with, or merger of the Sponsor
into, any other Person or any sale, transfer or lease of the properties and
assets of the Sponsor as, or substantially as, an entirety by the Sponsor, the
successor Person formed by such consolidation or into which the Sponsor is
merged or to which such sale, transfer or lease is made shall execute and
deliver to the Property Trustee an instrument of assumption in form satisfactory
to the Property Trustee whereby such successor expressly assumes the due and
punctual performance and observance of all of the covenants and conditions of
this Declaration to be performed by the Sponsor and such successor Person shall
thereupon succeed to, and be substituted for, and may exercise every right and
power of, the Sponsor under this Declaration with the same effect as if such
successor Person had been named originally as the Sponsor herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Declaration.
Notwithstanding the foregoing, the predecessor Person may elect, at its option,
<PAGE> 83
not to be so relieved of such obligations and covenants, provided that the
predecessor Person and the successor Person shall agree in writing to be
co-obligors jointly and severally with respect to all such obligations and
covenants. Concurrently with the delivery to the Property Trustee of such
instrument of assumption, the Sponsor shall deliver to the Property Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer, sale or lease and the transactions effected in
connection therewith and the related instrument of assumption comply with this
Article and that all conditions precedent herein provided relating to such
transaction and assumption have been complied with.
<PAGE> 84
IN WITNESS WHEREOF, each of the undersigned has caused these presents
to be executed as of the day and year first above written.
AMERICAN CLASSIC VOYAGES CO.
As Sponsor
By:
------------------------------------
ADMINISTRATIVE TRUSTEES
-----------------------------------
Philip C. Calian
-----------------------------------
Jordan B. Allen
-----------------------------------
Randall L. Talcott
THE BANK OF NEW YORK,
As Property Trustee
By:
------------------------------------
Its:
-----------------------------------
THE BANK OF NEW YORK (DELAWARE),
As Delaware Trustee
By:
------------------------------------
Its:
-----------------------------------
<PAGE> 85
Exhibit A-1
Number of Trust Convertible
Preferred Securities: [ ]
TPSI-1
CUSIP NO. ___________
FORM OF TRUST PREFERRED SECURITY CERTIFICATE
[This Trust Preferred Security is a Global Certificate within the
meaning of the Declaration hereinafter referred to and is registered in the name
of The Depository Trust Company (the "Depositary") or a nominee of the
Depositary. This Trust Preferred Security is exchangeable for Trust Preferred
Securities registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Declaration and no
transfer of this Trust Preferred Security (other than a transfer of this Trust
Preferred Security as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Trust Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, 49th Floor, New
York, New York 10041), a New York corporation, to El Paso Energy Capital Trust I
or its agent for registration of transfer, exchange, conversion or payment, and
any Trust Preferred Security issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of the Depositary
and any payment hereon is made to Cede & Co. or such other entity as is
requested by an authorized representative of the Depositary, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]*
CERTIFICATE EVIDENCING TRUST PREFERRED SECURITIES
OF
AMCV CAPITAL I TRUST
_____% TRUST CONVERTIBLE PREFERRED SECURITIES
(LIQUIDATION AMOUNT $50 PER TRUST CONVERTIBLE PREFERRED SECURITY)
AMCV CAPITAL TRUST I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that
___________________ (the "Holder") is the registered owner of _________ [or such
lesser or greater amount as shall be noted on the
- ------------------------------
*Insert in Global Certificates
<PAGE> 86
Schedule attached hereto]** preferred securities of the Trust representing
undivided beneficial ownership interests in the assets of the Trust designated
the _____% Trust Convertible Preferred Securities (Liquidation Amount $50 per
Trust Convertible Preferred Security) (the "Trust Preferred Securities"). The
Trust Preferred Securities are freely transferable on the books and records of
the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer. The designation,
rights, powers, privileges, restrictions, preferences and other terms and
provisions of the Trust Preferred Securities represented hereby are set forth
in, issued under and shall in all respects be subject to the provisions of the
Amended and Restated Declaration of Trust of the Trust dated as of ________,
2000, as the same may be amended from time to time (the "Declaration").
Capitalized terms used herein but not defined shall have the meanings given them
in the Declaration. The Holder is entitled to the benefits of the Trust
Preferred Securities Guarantee to the extent provided therein. Each Holder of a
Trust Preferred Security, by acceptance of this Certificate and each certificate
owner, by acquisition of a beneficial interest in a Certificate, agrees to treat
the Subordinated Debentures as indebtedness for United States federal income tax
purposes. The Sponsor will provide a copy of the Declaration, the Trust
Preferred Securities Guarantee and the Subordinated Indenture to a Holder
without charge upon written request to the Trust at its principal place of
business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this ___ day of __________.
AMCV CAPITAL TRUST I
------------------------------
As Administrative Trustee
(See reverse for additional terms)
- -------------------------------------
**Insert in Global Certificates only.
<PAGE> 87
CERTIFICATE OF AUTHENTICATION
This is one of the Trust Preferred Securities described in the within-mentioned
Declaration.
THE BANK OF NEW YORK,
AS TRUSTEE
By:
----------------------------------------
Authorized Officer
[FORM OF REVERSE OF SECURITY]
Holders of Trust Preferred Securities shall be entitled to receive
cumulative cash distributions at a rate per annum of _____% of the stated
Liquidation Amount of $50 per Trust Preferred Security. Distributions on the
Trust Preferred Securities shall, from the Closing Date, accumulate and be
cumulative and shall be payable quarterly only to the extent that the Trust has
funds available for the payment of such distributions in the Property Account.
Distributions not paid on the scheduled quarterly payment date will accumulate
and compound quarterly (to the extent permitted by applicable law) at the rate
of ______% per annum. The term "Distributions" as used herein shall mean
ordinary cumulative distributions in respect of each Fiscal Period together with
any such Compounded Distributions. Amounts available to the Trust for
distribution to the holders of the Trust Preferred Securities will be limited to
payments received by the Trust from the Company on the Subordinated Debentures
or on the Trust Preferred Securities Guarantee. If and to the extent that the
Company makes a payment on the Subordinated Debentures held by the Property
Trustee or under the Trust Preferred Securities Guarantee (the amount of any
such payment being a "Payment Amount"), the Trust shall and the Property Trustee
is directed, to the extent funds are available for that purpose, to make a Pro
Rata Distribution of the Payment Amount to Holders.
The amount of Distributions payable for any period will be computed for
any full quarterly Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full quarterly Distribution
period on the basis of the actual number of days elapsed in a 90-day quarter.
Except as otherwise described herein, Distributions on the Trust
Preferred Securities will be cumulative, will accumulate from the Closing Date
and will be payable quarterly in arrears, on March 31, June 30, September 30 and
December 31 of each year, commencing on
<PAGE> 88
__________, 2000, if, as and when available for payment by the Property Trustee.
The Company has the right under the Subordinated Indenture to defer payments of
interest by extending the interest payment period from time to time on the
Subordinated Debentures for a period not exceeding 20 consecutive quarters (each
an "Extension Period"); provided, that no Extension Period shall last beyond the
date of the maturity or any redemption date of the Subordinated Debentures and,
as a consequence of such deferral, Distributions will also be deferred. Despite
such deferral, quarterly Distributions will continue to accrue with interest
thereon (to the extent permitted by applicable law) at the rate specified above
compounded quarterly during any such Extension Period. Prior to the termination
of any such Extension Period, the Company may further extend such Extension
Period; provided, that such Extension Period together with all such previous and
further extensions thereof may not exceed 20 consecutive quarters or extend
beyond the maturity or any redemption date of the Subordinated Debentures.
Distributions will be payable to the Holders of record of Trust
Preferred Securities as they appear on the books and records of the Trust on the
relevant record dates, which will be the 15th day of the month of the relevant
payment dates (that is, each March 15, June 15, September 15 and December 15).
In the event that any date on which Distributions are payable is not a Business
Day, payment of such Distribution shall be made on the next succeeding day which
is a Business Day (without any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, with
the same force and effect as if made on such date. Payments of accumulated
Distributions will be payable to Holders of record of Trust Preferred Securities
as they appear on the books and records of the Trust on the record date with
respect to the payment date for the Trust Preferred Securities which corresponds
to the payment date fixed by the Company with respect to the payment of amounts
due on the Subordinated Debentures.
The Trust Preferred Securities shall be redeemable and convertible as
provided in the Declaration.
<PAGE> 89
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust Preferred
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Trust Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
-------------------
Signature:
---------------------------
(Sign exactly as your name appears on the other side of this Trust Preferred
Security Certificate)
<PAGE> 90
NOTICE OF CONVERSION
To: The Bank of New York
Conversion Agent for AMCV Capital Trust I
The undersigned owner of this Trust Preferred Security or Trust
Preferred Securities hereby irrevocably exercises the option to convert this
Trust Preferred Security or Trust Preferred Securities, or the portion
designated below, into Common Stock of American Classic Voyages Co., or its
successor, (the "Common Stock") in accordance with the terms of the Amended and
Restated Declaration of Trust (as amended from time to time, the "Declaration"),
dated as of ___________, 2000, among Philip C. Calian, Jordan B. Allen and
Randall L. Talcott, as Administrative Trustees, The Bank of New York (Delaware)
as Delaware Trustee, The Bank of New York, as Property Trustee, American Classic
Voyages Co., as Sponsor, and the Holders, from time to time, of undivided
beneficial interests in the Trust to be issued pursuant to the Declaration.
Pursuant to the aforementioned exercise of the option to convert the Trust
Preferred Security or Trust Preferred Securities, the undersigned hereby directs
the Conversion Agent (as that term is defined in the Declaration) to (i)
exchange such Trust Preferred Security or Trust Preferred Securities for a
portion of the Subordinated Debentures (as that term is defined in the
Declaration) held by the Trust (at the rate of exchange specified in the
Declaration) and (ii) immediately convert such Subordinated Debentures on behalf
of the undersigned, into Common Stock (at the conversion rate specified in the
Declaration).
The undersigned also hereby directs the Conversion Agent that the
shares of Common Stock issuable and deliverable upon conversion, together with
any check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in the
assignment below. If shares are to be issued in the name of a person other than
the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
Date:
-----------------------------
in whole
--------------
in part Number of Trust Preferred
-------------- Securities to be converted
($50 Liquidation Amount or
integral multiples thereof):
---------------------------
<PAGE> 91
If a name or names other
than the undersigned,
please indicate in the
spaces below the name or
names in which the shares
of Common Stock are to be
issued, along with the
address or addresses of
such person or persons.
---------------------------
---------------------------
---------------------------
---------------------------
---------------------------
Signature (for conversion
only) Please Print or
Typewrite Name and Address,
Including Zip Code, and
Social Security or Other
Identifying Number
---------------------------
---------------------------
---------------------------
---------------------------
---------------------------
(Name, Address (including
zip code) and Social
Security or Tax ID No.)
Signature Guarantee: *
- -------------------
* Signature must be guaranteed by an institution which is a member of one of
the following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MSP); (iii) The Stock Exchange Medallion Program
(SEMP); or (iv) in such other guarantee programs acceptable to the
Conversion Agent.
<PAGE> 92
SCHEDULE*
The notations on the following table evidence decreases in the
number of Trust Preferred Securities evidenced by this Global certificate
resulting from exchanges made in connection with conversions or increases
resulting from the exercise of the Over-Allotment Option.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
DECREASE OR INCREASE IN NUMBER OF TRUST NOTATION MADE BY
NUMBER OF TRUST PREFERRED TRUST PREFERRED SECURITIES REGISTRAR
SECURITIES AFTER SUCH DECREASE OR
INCREASE
<S> <C> <C>
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
</TABLE>
- ---------------------
* Insert in Global Certificates only.
<PAGE> 93
Exhibit A-2
Number of Trust Convertible
Common Securities: [ ]
TCSI-
FORM OF TRUST COMMON SECURITY CERTIFICATE
CERTIFICATE EVIDENCING TRUST CONVERTIBLE COMMON SECURITIES
OF
AMCV CAPITAL TRUST I
______% TRUST CONVERTIBLE COMMON SECURITIES
(LIQUIDATION AMOUNT $50 PER TRUST CONVERTIBLE COMMON SECURITY)
AMCV CAPITAL TRUST I, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that American Classic
Voyages Co., a Delaware corporation (the "Holder"), is the registered owner of
_______ common securities of the Trust representing undivided beneficial
ownership interests in the assets of the Trust designated the _____% Trust
Convertible Common Securities (Liquidation Amount $50 per Trust Convertible
Common Security) (the "Trust Common Securities"). The designation, rights,
powers, privileges, restrictions, preferences and other terms and provisions of
the Trust Common Securities represented hereby are set forth in, issued under
and shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust dated as of _________, 2000, as the
same may be amended from time to time (the "Declaration"). Capitalized terms
used herein but not defined shall have the meanings given them in the
Declaration. The Holder is entitled to the benefits of the Trust Common
Securities Guarantee to the extent provided therein. Each Holder of a Trust
Common Security, by acceptance of this Certificate, agrees to treat the
Subordinated Debentures as indebtedness for United States federal income tax
purposes. The Sponsor will provide a copy of the Declaration, the Trust Common
Securities Guarantee and the Subordinated Indenture to a Holder without charge
upon written request to the Sponsor at its principal place of business. THE
TRUST COMMON SECURITIES ARE TRANSFERABLE ON THE BOOKS AND RECORDS OF THE TRUST
ONLY IN ACCORDANCE WITH THE TERMS OF THE DECLARATION.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this ____day of __________.
AMCV CAPITAL TRUST I
-------------------------------
as Administrative Trustee
A-2-1
<PAGE> 94
CERTIFICATE OF AUTHENTICATION
This is one of the Trust Common Securities described in the
within-mentioned Declaration.
THE BANK OF NEW YORK, AS TRUSTEE
By:
--------------------------------
Authorized Officer
(See reverse for additional terms)
[FORM OF REVERSE OF SECURITY]
Holders of Trust Common Securities shall be entitled to
receive cumulative cash distributions at a rate per annum of ____% of the stated
Liquidation Amount of $50 per Trust Common Security. Distributions on the Trust
Common Securities shall, from the date of original issue, accumulate and be
cumulative and shall be payable quarterly only to the extent that the Trust has
funds available for the payment of such distributions in the Property Account.
Distributions not paid on the scheduled quarterly payment date will accumulate
and compound quarterly (to the extent permitted by applicable law) at the rate
of ____% per annum. The term "Distributions" as used herein shall mean ordinary
cumulative distributions in respect of each Fiscal Period together with any such
Compounded Distributions. Amounts available to the Trust for distribution to the
holders of the Trust Common Securities will be limited to payments received by
the Trust from the Company on the Subordinated Debentures or on the Trust Common
Securities Guarantee. If and to the extent that the Company makes a payment on
the Subordinated Debentures held by the Property Trustee or under the Trust
Common Securities Guarantee (the amount of any such payment being a "Payment
Amount"), the Trust shall and the Property Trustee is directed, to the extent
funds are available for that purpose, to make a Pro Rata Distribution of the
Payment Amount to Holders.
<PAGE> 95
The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period on the basis of the actual number of days elapsed in a
90-day quarter.
Except as otherwise described herein, distributions on the
Trust Common Securities will be cumulative, will accumulate from the Closing
Date and will be payable quarterly in arrears, on March 31, June 30, September
30 and December 31 of each year, commencing on ________, 2000 if, as and when
available for payment by the Property Trustee. The Company has the right under
the Subordinated Indenture to defer payments of interest by extending the
interest payment period from time to time on the Subordinated Debentures for a
period not exceeding 20 consecutive quarters (each an "Extension Period");
provided, that no Extension Period shall last beyond the date of the maturity or
any redemption date of the Subordinated Debentures and, as a consequence of such
deferral, Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the rate specified above compounded quarterly
during any such Extension Period. Prior to the termination of any such Extension
Period, the Company may further extend such Extension Period; provided, that
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarters or extend beyond the maturity or
any redemption date of the Subordinated Debentures.
Distributions will be payable to the Holders of record of
Trust Common Securities as they appear on the books and records of the Trust on
the relevant record dates, which will be the fifteenth day of the month of the
relevant payment dates (that is, each March 15, June 15, September 15 and
December 15). In the event that any date on which distributions are payable is
not a Business Day, payment of the Distribution shall be made on the next
succeeding day which is a Business Day (without any interest or other payment in
respect of any such delay) except that, if such Business Day falls in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. Payments of accumulated Distributions will be payable to Holders
of record of Trust Common Securities as they appear on the books and records of
the Trust on the record date with respect to the payment date for the Trust
Common Securities which corresponds to the payment date fixed by the Company
with respect to amounts due on the Subordinated Debentures.
The Trust Common Securities shall be redeemable and
convertible as provided in the Declaration.
<PAGE> 96
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust Common
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Trust Common Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
------------------------
Signature:
-------------------
(Sign exactly as your name appears on the other side of this Trust Common
Security Certificate)
<PAGE> 97
NOTICE OF CONVERSION
To: The Bank of New York
Conversion Agent for AMCV Capital Trust I
The undersigned owner of this Trust Common Security or Trust
Common Securities hereby irrevocably exercises the option to convert this Trust
Common Security or Trust Common Securities, or the portion designated below,
into Common Stock of American Classic Voyages Co., or its successor, (the
"Common Stock") in accordance with the terms of the Amended and Restated
Declaration of Trust (as amended from time to time, the "Declaration"), dated
as of ________, 2000, among Philip C. Calian, Jordan B. Allan and Randall L.
Talcott, as Administrative Trustees, The Bank of New York (Delaware), as
Delaware Trustee, The Bank of New York, as Property Trustee, American Classic
Voyages Co., as Sponsor, and the Holders, from time to time, of undivided
beneficial interests in the Trust to be issued pursuant to the Declaration.
Pursuant to the aforementioned exercise of the option to convert the Trust
Common Security or Trust Common Securities, the undersigned hereby directs the
Conversion Agent (as that term is outlined in the Declaration) to (i) exchange
such Trust Common Security or Trust Common Securities for a portion of the
Subordinated Debentures (as that term is defined in the Declaration) held by
the Trust (at the rate of exchange specified in the Declaration) and (ii)
immediately convert such Subordinated Debentures on behalf of the undersigned,
into Common Stock (at the conversion rate specified in the Declaration).
The undersigned also hereby directs the Conversion Agent that
the shares of Common Stock issuable and deliverable upon conversion, together
with any check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in the
assignment below. If shares are to be issued in the name of a person other than
the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
Date:
---------------------
in whole
---------
in part Number of Trust Common
---------- Securities to be converted
($50 Liquidation Amount or
integral multiples thereof):
----------------------------
<PAGE> 98
If a name or names other
than the undersigned,
please indicate in the
spaces below the name or
names in which the shares
of Common Stock are to be
issued, along with the
address or addresses of
such person or persons.
---------------------------
---------------------------
---------------------------
---------------------------
---------------------------
Signature (for conversion
only) Please Print or
Typewrite Name and Address,
Including Zip Code, and
Social Security or Other
Identifying Number
---------------------------
---------------------------
---------------------------
---------------------------
---------------------------
(Name, Address (including
zip code) and Social
Security or Tax ID No.)
Signature Guarantee: *
- -----------------------
* Signature must be guaranteed by an institution which is a member of one
of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee programs
acceptable to the Conversion Agent.
<PAGE> 1
EXHIBIT 4.6
TRUST CONVERTIBLE PREFERRED SECURITIES
GUARANTEE AGREEMENT
AMCV CAPITAL TRUST I
DATED AS OF __________, 2000
<PAGE> 2
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INTERPRETATION............................................ 2
SECTION 1.1 Definitions and Interpretation............................... 2
ARTICLE II
TRUST INDENTURE ACT...................................................... 5
SECTION 2.1 Trust Indenture Act; Application............................ 5
SECTION 2.2 Lists of Holders of Securities.............................. 5
SECTION 2.3 Reports by the Trust Preferred Guarantee Trustee............ 6
SECTION 2.4 Periodic Reports to Trust Preferred Guarantee Trustee....... 6
SECTION 2.5 Evidence of Compliance with Conditions Precedent............ 6
SECTION 2.6 Guarantee Events of Default; Waiver......................... 6
SECTION 2.7 Guarantee Event of Default; Notice.......................... 7
SECTION 2.8 Conflicting Interests....................................... 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUST PREFERRED GUARANTEE TRUSTEE........... 7
SECTION 3.1 Powers and Duties of the Trust Preferred Guarantee Trustee.. 7
SECTION 3.2 Certain Rights of Trust Preferred Guarantee Trustee......... 8
SECTION 3.3 Not Responsible for Recitals or Issuance of Trust Preferred
Securities Guarantee........................................ 11
ARTICLE IV
TRUST PREFERRED GUARANTEE TRUSTEE........................................ 12
SECTION 4.1 Trust Preferred Guarantee Trustee; Eligibility.............. 12
SECTION 4.2 Appointment, Removal and Resignation of Trust Preferred
Guarantee Trustee........................................... 12
ARTICLE V
GUARANTEE................................................................ 13
SECTION 5.1 Guarantee................................................... 13
SECTION 5.2 Waiver of Notice and Demand................................. 14
SECTION 5.3 Obligations Not Affected.................................... 14
SECTION 5.4 Rights of Holders........................................... 15
SECTION 5.5 Guarantee of Payment........................................ 15
SECTION 5.6 Subrogation................................................. 15
SECTION 5.7 Independent Obligations..................................... 16
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING...................................... 16
SECTION 6.1 Limitation of Transactions.................................. 16
SECTION 6.2 Ranking..................................................... 17
ARTICLE VII
TERMINATION.............................................................. 17
SECTION 7.1 Termination................................................. 17
<PAGE> 3
ARTICLE VIII
CERTAIN COVENANTS........................................................ 18
SECTION 8.1 Payment of Additional Sums.................................. 18
SECTION 8.2 Continued Ownership of Trust Common Securities, Etc......... 18
ARTICLE IX
INDEMNIFICATION, ETC..................................................... 18
SECTION 9.1 Exculpation................................................. 18
SECTION 9.2 Fees, Expenses and Indemnification.......................... 19
ARTICLE X
MISCELLANEOUS............................................................ 20
SECTION 10.1 Successors and Assigns...................................... 20
SECTION 10.2 Amendments.................................................. 20
SECTION 10.3 Holding Company Formation, Consolidations and Mergers....... 20
SECTION 10.4 Notices..................................................... 21
SECTION 10.5 Benefit..................................................... 21
SECTION 10.6 Governing Law............................................... 21
<PAGE> 4
TRUST CONVERTIBLE PREFERRED SECURITIES
GUARANTEE AGREEMENT
This Trust Convertible Preferred Securities Guarantee Agreement (the
"Trust Preferred Securities Guarantee"), dated as of __________, 2000, is
executed and delivered by American Classic Voyages Co., a Delaware corporation
(the "Guarantor"), and The Bank of New York, a New York banking corporation, as
trustee (the "Trust Preferred Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Trust Preferred Securities
(as defined herein) of AMCV Capital Trust I, a Delaware statutory business trust
(the "Issuer").
R E C I T A L S:
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of __________, 2000, among the trustees of the Issuer
named therein, American Classic Voyages Co., as sponsor, and the holders from
time to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing on the date hereof ____ Trust Convertible Preferred
Securities, having an aggregate Liquidation Amount of $_____, designated the
_____% Trust Convertible Preferred Securities, which amounts exclude _____
_____% Trust Convertible Preferred Securities having an aggregate Liquidation
Amount of $_____ that are subject to purchase pursuant to an underwriters'
over-allotment option (all _____% Trust Convertible Preferred Securities issued
by the Issuer, including any issued in connection with such over-allotment
option, are referred to herein collectively as the "Trust Preferred
Securities"); and
WHEREAS, as an incentive for the Holders to purchase the Trust Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Trust Preferred Securities Guarantee, to pay to the
Holders of the Trust Preferred Securities the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set forth
herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Trust Common Securities Guarantee"), with substantially
identical terms to this Trust Preferred Securities Guarantee for the benefit of
the holders of the Trust Common Securities (as defined herein), except that if
the Guarantor is in default on any of its obligations under the Trust Preferred
Securities Guarantee or the Subordinated Indenture (as defined herein), the
rights of holders of the Trust Common Securities to receive "Guarantee Payments"
(as such term is defined in the Trust Common Securities Guarantee) under the
Trust Common Securities Guarantee are subordinated, to the extent and in the
manner set forth in the Trust Common Securities Guarantee, to the rights of
Holders of Trust Preferred Securities to receive Guarantee Payments under this
Trust Preferred Securities Guarantee;
NOW, THEREFORE, in consideration of the purchase by each Holder of Trust
Preferred Securities, which purchase the Guarantor hereby acknowledges shall
benefit the Guarantor, the Guarantor executes and delivers this Trust Preferred
Securities Guarantee for the benefit of the Holders.
<PAGE> 5
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Trust Preferred Securities Guarantee, unless the context
otherwise requires:
(a) Capitalized terms used in this Trust Preferred Securities Guarantee
but not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) Capitalized terms used in this Trust Preferred Securities Guarantee
but not otherwise defined herein shall have the meanings assigned to them in the
Declaration or the Subordinated Indenture, as the case may be;
(c) A term defined anywhere in this Trust Preferred Securities Guarantee
has the same meaning throughout;
(d) All references to "the Trust Preferred Securities Guarantee" or
"this Trust Preferred Securities Guarantee" are to this Trust Preferred
Securities Guarantee as modified, supplemented or amended from time to time;
(e) All references to this Trust Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Trust Preferred
Securities Guarantee, unless otherwise specified;
(f) A term defined in the Trust Indenture Act has the same meaning when
used in this Trust Preferred Securities Guarantee, unless otherwise defined in
this Trust Preferred Securities Guarantee or unless the context otherwise
requires; and
(g) A reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 under
the Securities Act of 1933, as amended, or any successor rule thereunder;
provided, however, that an Affiliate of the Guarantor shall not be deemed to
include the Issuer.
"Business Day" means any day other than a day on which banking
institutions in the City of New York are authorized or required by law or
executive order to close.
"Corporate Trust Office" means the principal corporate trust office of
the Trust Preferred Guarantee Trustee in the Borough of Manhattan, the City of
New York, which office at the date hereof is located at __________.
"Covered Person" means any Holder or beneficial owner of Trust Preferred
Securities.
<PAGE> 6
"Guarantee Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Trust Preferred Securities
Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Trust Preferred Securities, to the
extent not paid or made by the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Declaration) that are required to be paid on
such Trust Preferred Securities, to the extent the Issuer has funds legally
available therefor at such time, (ii) the redemption price, including all
accumulated and unpaid Distributions to the date of redemption (the "Redemption
Price"), to the extent the Issuer has funds legally available therefor at such
time, with respect to any Trust Preferred Securities called for redemption by
the Issuer, and (iii) upon a voluntary or involuntary termination, dissolution,
winding up or liquidation of the Issuer (other than in connection with the
distribution of Subordinated Debentures to the Holders in exchange for Trust
Preferred Securities as provided in the Declaration or the conversion or
redemption of all of the Trust Preferred Securities), the lesser of (a) the
aggregate of the Liquidation Amount and all accumulated and unpaid Distributions
on the Trust Preferred Securities to the date of payment, to the extent the
Issuer has funds legally available therefor, and (b) the amount of assets of the
Issuer, after satisfaction of all liabilities, remaining available for
distribution to Holders in liquidation of the Issuer (in either case, the
"Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and records
of the Issuer of any Trust Preferred Securities; provided, however, that, in
determining whether holders of the requisite percentage of Trust Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not apply to Trust Preferred Securities beneficially owned by the
Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Trust Preferred Guarantee Trustee, any
Affiliate of the Trust Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Trust Preferred Guarantee Trustee.
"Liquidation Amount" has the meaning assigned to such term in the
Declaration.
"Majority in Liquidation Amount of the Trust Preferred Securities"
means, except as provided by the Trust Indenture Act, a vote by Holder(s) of
Trust Preferred Securities, voting separately as a class, of more than 50% of
the aggregate Liquidation Amount of all Trust Preferred Securities.
"Officers' Certificate" means, with respect to any Person (who is not an
individual), a certificate signed by the Chairman of the Board, the President, a
Vice President or the Treasurer, and by an Assistant Treasurer, the Secretary or
an Assistant Secretary of such Person. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this Trust
Preferred Securities Guarantee (other than pursuant to Section 314(a)(4) of the
Trust Indenture Act) shall include:
<PAGE> 7
(a) A statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definition relating thereto;
(b) A brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) A statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) A statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Trust Preferred
Guarantee Trustee, the chairman or vice-chairman of the board of directors, the
chairman or vice-chairman of the executive committee of the board of directors,
the president, any vice president (whether or not designated by a number or a
word or words added before or after the title "vice president"), the secretary,
any assistant secretary the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any senior trust officer, any trust officer or assistant
trust officer, or any other officer of the Trust Preferred Guarantee Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Subordinated Indenture" means the Subordinated Indenture, dated as of
__________, between the Company and The Bank of New York, as trustee, as further
amended or supplemented from time to time.
"Successor Trust Preferred Guarantee Trustee" means a successor Trust
Preferred Guarantee Trustee possessing the qualifications to act as Trust
Preferred Guarantee Trustee under Section 4.1.
"Trust Common Securities" means the common securities representing
subordinated undivided beneficial interests in the assets of the Issuer in
accordance with the Declaration that are issued by the Issuer on the Closing
Date or Option Closing Date (as such terms are defined in the Underwriting
Agreement). All Trust Common Securities issued by the Trust are deemed to have
been issued as of the Closing Date.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
<PAGE> 8
"Trust Preferred Guarantee Trustee" means The Bank of New York, a New
York banking corporation, until a Successor Trust Preferred Guarantee Trustee
has been appointed and has accepted such appointment pursuant to the terms of
this Trust Preferred Securities Guarantee and thereafter means each such
Successor Trust Preferred Guarantee Trustee.
"Trust Preferred Securities" has the meaning assigned to such term in
the preamble of this Agreement. All Trust Preferred Securities issued by the
Trust are deemed to have been issued as of the Closing Date.
"Trust Securities" means the Trust Common Securities together with the
Trust Preferred Securities.
"Underwriting Agreement" means that certain Underwriting Agreement,
dated as of __________, 2000 among the Sponsor, the Issuer and the several
underwriters named therein.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Trust Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this Trust
Preferred Securities Guarantee and shall, to the extent applicable, be governed
by such provisions; and
(b) If and to the extent that any provision of this Trust Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2 Lists of Holders of Securities
(a) The Trust Preferred Guarantee Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders of Trust Preferred Securities. If the Trust
Preferred Guarantee Trustee is not the Registrar under the Declaration, the
Guarantor shall furnish to the Trust Preferred Guarantee Trustee semi-annually
on or before June 15 and December 15 in each year, and at such other times as
the Trust Preferred Guarantee Trustee may request in writing, a list, in such
form and as of such date as the Trust Preferred Guarantee Trustee may require,
containing all the information in the possession or control of the Registrar
under the Declaration, the Guarantor or any of its Paying Agents other than the
Trust Preferred Guarantee Trustee as to the names and addresses of Holders of
Trust Preferred Securities.
(b) The Trust Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
<PAGE> 9
SECTION 2.3 Reports by the Trust Preferred Guarantee Trustee
Within 60 days after May 15 of each calendar year, the Trust Preferred
Guarantee Trustee shall provide to the Holders of the Trust Preferred Securities
such reports as are required by Section 313(a) of the Trust Indenture Act, if
any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Trust Preferred Guarantee Trustee shall also comply with the
other requirements of Section 313 of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Trust Preferred Guarantee Trustee
The Guarantor shall provide to the Trust Preferred Guarantee Trustee
such documents, reports and information as required by Section 314 (if any) and
the compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act, provided that such compliance certificate shall be delivered on
or before 120 days after the end of each fiscal year of the Guarantor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Trust Preferred Guarantee Trustee
such evidence of compliance with the conditions precedent, if any, provided for
in this Trust Preferred Securities Guarantee that relate to any of the matters
set forth in Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section 314(c)(1) may be
given in the form of an Officers' Certificate.
SECTION 2.6 Guarantee Events of Default; Waiver
The Holders of a Majority in Liquidation Amount of Trust Preferred
Securities may, by vote, on behalf of the Holders of all of the Trust Preferred
Securities, waive any past Guarantee Event of Default and its consequences. Upon
such waiver, any such Guarantee Event of Default shall cease to exist, and any
Guarantee Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Trust Preferred Securities Guarantee, but no such
waiver shall extend to any subsequent or other default or Guarantee Event of
Default or impair any right consequent thereon.
SECTION 2.7 Guarantee Event of Default; Notice
(a) The Trust Preferred Guarantee Trustee shall, within 90 days after
the occurrence of a Guarantee Event of Default, transmit by mail, first class
postage prepaid, to the Holders of the Trust Preferred Securities, notices of
all Guarantee Events of Default actually known to a Responsible Officer of the
Trust Preferred Guarantee Trustee charged with the administration of this Trust
Preferred Securities Guarantee, unless such defaults have been cured before the
giving of such notice, provided, that, except in the case of default in any
Guarantee Payment, the Trust Preferred Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Trust
Preferred Guarantee Trustee in good faith
<PAGE> 10
determines that the withholding of such notice is in the interests of the
Holders of the Trust Preferred Securities.
(b) The Trust Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Guarantee Event of Default unless the Trust Preferred Guarantee
Trustee shall have received notice thereof from the Guarantor or a Holder, or a
Responsible Officer of the Trust Preferred Guarantee Trustee charged with the
administration of the Declaration shall have obtained actual knowledge, of such
Guarantee Event of Default.
SECTION 2.8 Conflicting Interests
The Declaration shall be deemed to be specifically described in this
Trust Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Trust Preferred Guarantee Trustee
(a) This Trust Preferred Securities Guarantee shall be held by the Trust
Preferred Guarantee Trustee for the benefit of the Holders of the Trust
Preferred Securities, and the Trust Preferred Guarantee Trustee shall not
transfer this Trust Preferred Securities Guarantee to any Person except a Holder
of Trust Preferred Securities exercising his or her rights pursuant to Section
5.4(b) or to a Successor Trust Preferred Guarantee Trustee on acceptance by such
Successor Trust Preferred Guarantee Trustee of its appointment to act as
Successor Trust Preferred Guarantee Trustee. The right, title and interest of
the Trust Preferred Guarantee Trustee shall automatically vest in any Successor
Trust Preferred Guarantee Trustee, and such vesting and succession of title
shall be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Trust Preferred
Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to a Responsible
Officer of the Trust Preferred Guarantee Trustee charged with the administration
of this Trust Preferred Securities Guarantee has occurred and is continuing, the
Trust Preferred Guarantee Trustee shall enforce this Trust Preferred Securities
Guarantee for the benefit of the Holders of the Trust Preferred Securities.
(c) The Trust Preferred Guarantee Trustee, before the occurrence of any
Guarantee Event of Default and after the curing or waiver of all Guarantee
Events of Default that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Trust Preferred Securities
Guarantee, and no implied covenants shall be read into this Trust Preferred
Securities Guarantee against the Trust Preferred Guarantee Trustee. In case a
<PAGE> 11
Guarantee Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) and is actually known to a Responsible Officer of the
Trust Preferred Guarantee Trustee charged with the administration of this Trust
Preferred Securities Guarantee, the Trust Preferred Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Trust Preferred
Securities Guarantee, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No provision of this Trust Preferred Securities Guarantee shall be
construed to relieve the Trust Preferred Guarantee Trustee from liability for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) Prior to the occurrence of any Guarantee Event of Default and
after the curing or waiving of all such Guarantee Events of Default that
may have occurred:
(A) The duties and obligations of the Trust Preferred
Guarantee Trustee shall be determined solely by the express
provisions of this Trust Preferred Securities Guarantee, and the
Trust Preferred Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Trust Preferred Securities Guarantee, and no implied
covenants or obligations shall be read into this Trust Preferred
Securities Guarantee against the Trust Preferred Guarantee Trustee;
and
(B) In the absence of bad faith on the part of the Trust
Preferred Guarantee Trustee, the Trust Preferred Guarantee Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trust Preferred Guarantee Trustee and
conforming to the requirements of this Trust Preferred Securities
Guarantee; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to
the Trust Preferred Guarantee Trustee, the Trust Preferred Guarantee
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Trust
Preferred Securities Guarantee;
(ii) The Trust Preferred Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer of the
Trust Preferred Guarantee Trustee, unless it shall be proved that the
Trust Preferred Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) The Trust Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of a Majority in
Liquidation Amount of the Trust Preferred Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trust Preferred Guarantee Trustee, or exercising any
trust or
<PAGE> 12
power conferred upon the Trust Preferred Guarantee Trustee under this
Trust Preferred Securities Guarantee; and
(iv) No provision of this Trust Preferred Securities Guarantee
shall require the Trust Preferred Guarantee Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights
or powers, if the Trust Preferred Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not assured to it under the terms of this Trust Preferred
Securities Guarantee or indemnity, reasonably satisfactory to the Trust
Preferred Guarantee Trustee, against such risk or liability is not
reasonably assured to it.
SECTION 3.2 Certain Rights of Trust Preferred Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Trust Preferred Guarantee Trustee may conclusively rely,
and shall be fully protected in acting or refraining from acting, upon
any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the proper party
or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Trust Preferred Securities Guarantee shall be sufficiently evidenced by
an Officers' Certificate.
(iii) Whenever, in the administration of this Trust Preferred
Securities Guarantee, the Trust Preferred Guarantee Trustee shall deem
it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Trust Preferred
Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Guarantor.
(iv) The Trust Preferred Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any instrument (or any
rerecording, refiling or reregistration thereof).
(v) The Trust Preferred Guarantee Trustee may consult with counsel
of its selection, and the advice or opinion of such counsel with respect
to legal matters 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 accordance with such advice or opinion. Such counsel
may be counsel to the Guarantor or any of its Affiliates and may include
any of its employees. The Trust Preferred Guarantee Trustee shall have
the right at any time to seek instructions concerning the administration
of this Trust Preferred Securities Guarantee from any court of competent
jurisdiction.
<PAGE> 13
(vi) The Trust Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Trust Preferred Securities Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the Trust Preferred
Guarantee Trustee such security and indemnity, reasonably satisfactory
to the Trust Preferred Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the Trust
Preferred Guarantee Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such request
or direction, including such reasonable advances as may be requested by
the Trust Preferred Guarantee Trustee; provided that, nothing contained
in this Section 3.2(a)(vi) shall be taken to relieve the Trust Preferred
Guarantee Trustee, upon the occurrence of a Guarantee Event of Default,
of its obligation to exercise the rights and powers vested in it by this
Trust Preferred Securities Guarantee.
(vii) The Trust Preferred Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trust
Preferred Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(viii) The Trust Preferred Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys, and
the Trust Preferred Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
(ix) Any action taken by the Trust Preferred Guarantee Trustee or
its agents hereunder shall bind the Holders of the Trust Preferred
Securities, and the signature of the Trust Preferred Guarantee Trustee
or its agents alone shall be sufficient and effective to perform any
such action. No third party shall be required to inquire as to the
authority of the Trust Preferred Guarantee Trustee to so act or as to
its compliance with any of the terms and provisions of this Trust
Preferred Securities Guarantee, both of which shall be conclusively
evidenced by the Trust Preferred Guarantee Trustee or its agent taking
such action.
(x) Whenever in the administration of this Trust Preferred
Securities Guarantee the Trust Preferred Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the Trust Preferred
Guarantee Trustee (i) may request instructions from the Holders of a
Majority in Liquidation Amount of the Trust Preferred Securities, (ii)
may refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall be fully
protected in conclusively relying on or acting in accordance with such
instructions.
<PAGE> 14
(xi) The Trust Preferred Guarantee Trustee shall not be liable for
any action taken, suffered, or omitted to be taken by it in good faith,
without negligence, and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Trust Preferred Securities Guarantee.
(b) No provision of this Trust Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Trust Preferred Guarantee Trustee
to perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Trust Preferred Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts
or to exercise any such right, power, duty or obligation. No permissive power or
authority available to the Trust Preferred Guarantee Trustee shall be construed
to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Trust Preferred
Securities Guarantee
The recitals contained in this Trust Preferred Securities Guarantee
shall be taken as the statements of the Guarantor, and the Trust Preferred
Guarantee Trustee does not assume any responsibility for their correctness. The
Trust Preferred Guarantee Trustee makes no representation as to the validity or
sufficiency of this Trust Preferred Securities Guarantee.
ARTICLE IV
TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Trust Preferred Guarantee Trustee; Eligibility
(a) There shall at all times be a Trust Preferred Guarantee Trustee
which shall:
(i) Not be an Affiliate of the Guarantor; and
(ii) Be a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and
surplus of at least 50 million U.S. dollars ($50,000,000), and
subject to supervision or examination by Federal, State, Territorial
or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to
above, then, for the purposes of this Section 4.1(a)(ii), the
combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Trust Preferred Guarantee Trustee shall cease to
be eligible to so act under Section 4.1(a), the Trust Preferred Guarantee
Trustee shall immediately
<PAGE> 15
resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Trust Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Trust Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act, subject to the penultimate paragraph thereof.
SECTION 4.2 Appointment, Removal and Resignation of Trust Preferred
Guarantee Trustee
(a) Subject to Section 4.2(b), the Trust Preferred Guarantee Trustee may
be appointed or removed without cause at any time by the Guarantor except during
a Guarantee Event of Default. Upon the occurrence and during the continuance of
a Guarantee Event of Default, only the Holders of a Majority in Liquidation
Amount of the Trust Preferred Securities may appoint or remove the Trust
Preferred Guarantee Trustee.
(b) The Trust Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Trust Preferred Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Trust Preferred Guarantee Trustee and
delivered to the Guarantor.
(c) The Trust Preferred Guarantee Trustee shall hold office until a
Successor Trust Preferred Guarantee Trustee shall have been appointed or until
its removal or resignation. The Trust Preferred Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by an instrument
in writing executed by the Trust Preferred Guarantee Trustee and delivered to
the Guarantor, which resignation shall not take effect until a Successor Trust
Preferred Guarantee Trustee has been appointed and has accepted such appointment
by instrument in writing executed by such Successor Trust Preferred Guarantee
Trustee and delivered to the Guarantor and the resigning Trust Preferred
Guarantee Trustee.
(d) If no Successor Trust Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery of an instrument of removal or resignation, the Trust
Preferred Guarantee Trustee resigning or being removed may petition any court of
competent jurisdiction for appointment of a Successor Trust Preferred Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Trust Preferred Guarantee Trustee.
(e) No Trust Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Trust Preferred Guarantee Trustee.
(f) Upon termination of this Trust Preferred Securities Guarantee or
removal or resignation of the Trust Preferred Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Trust Preferred Guarantee Trustee
all amounts due to the Trust Preferred Guarantee Trustee accrued to the date of
such termination, removal or resignation.
<PAGE> 16
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), if, as and when due, regardless of any defense, right of
set-off or counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Trust Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor under
this Trust Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) The release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Trust Preferred Securities to be
performed or observed by the Issuer.
(b) The extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Optional Redemption Price,
Liquidation Distribution or any other sums payable under the terms of the Trust
Preferred Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Trust Preferred
Securities.
(c) Any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Trust Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind.
<PAGE> 17
(d) The voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) Any invalidity of, or defect or deficiency in, the Trust Preferred
Securities;
(f) The settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) Any other circumstances whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in Liquidation Amount of the Trust
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trust Preferred
Guarantee Trustee in respect of this Trust Preferred Securities Guarantee or
exercising any trust or power conferred upon the Trust Preferred Guarantee
Trustee under this Trust Preferred Securities Guarantee, provided, that, subject
to Section 3.1, the Trust Preferred Guarantee Trustee shall have the right to
decline to follow any such direction if the Trust Preferred Guarantee Trustee,
being advised by counsel, determines that the action or proceeding so directed
may not lawfully be taken or if the Trust Preferred Guarantee Trustee in good
faith by its board or trustees, executive committee, or a trust committee of
directors or trustees, and/or Responsible Officers shall determine that the
action or proceeding so directed would involve the Trust Preferred Guarantee
Trustee in personal liability.
(b) If the Trust Preferred Guarantee Trustee fails to enforce its rights
under the Trust Preferred Securities Guarantee after a Holder of Trust Preferred
Securities has made a written request, such Holder of Trust Preferred Securities
may institute a legal proceeding directly against the Guarantor to enforce the
Trust Preferred Guarantee Trustee's rights under this Trust Preferred Securities
Guarantee, without first instituting a legal proceeding against the Issuer, the
Trust Preferred Guarantee Trustee or any other person or entity. Notwithstanding
the foregoing, if the Guarantor has failed to make a Guarantee Payment, a Holder
of Trust Preferred Securities may directly institute a proceeding in such
Holder's own name against the Guarantor for enforcement of the Trust Preferred
Securities Guarantee for such payment. The Guarantor waives any right or remedy
to require that any action be brought first against the Issuer or any other
person or entity before proceeding directly against the Guarantor.
<PAGE> 18
SECTION 5.5 Guarantee of Payment
This Trust Preferred Securities Guarantee creates a guarantee of payment
and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the Holders
of Trust Preferred Securities against the Issuer in respect of any amounts paid
to such Holders by the Guarantor under this Trust Preferred Securities
Guarantee; provided, however, that the Guarantor shall not (except to the extent
required by mandatory provisions of law) be entitled to enforce or exercise any
right that it may acquire by way of subrogation or any indemnity, reimbursement
or other agreement, in all cases as a result of payment under this Trust
Preferred Securities Guarantee, if, at the time of any such payment, any amounts
are due and unpaid under this Trust Preferred Securities Guarantee. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Trust Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Trust
Preferred Securities Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions
So long as any Trust Preferred Securities remain outstanding, if (a) for
any distribution period, full distributions on a cumulative basis on any Trust
Preferred Securities have not been paid or declared and set apart for payment,
(b) an Event of Default (as defined in the Subordinated Indenture) has occurred
and is continuing or there shall have occurred and be continuing any event of
which the Guarantor has actual knowledge that, with the giving of notice or
lapse of time, or both, would constitute an Event of Default with respect to the
Subordinated Debentures, (c) the Guarantor is in default of its obligations
under this Trust Preferred Securities Guarantee or the Trust Common Securities
Guarantee, or (d) the Guarantor shall have given notice of its selection of an
Extension Period (as defined in the Subordinated Indenture) as provided in the
Subordinated Indenture with respect to the Subordinated Debentures and shall not
have rescinded such notice, or such Extension Period (or any extension thereof)
shall be continuing, then, during such period the Guarantor shall not (i)
declare or pay dividends on, make distributions with respect to, or redeem,
purchase or acquire, or make a liquidation payment with
<PAGE> 19
respect to any of its Capital Stock (except for (w) purchases of the Guarantor's
Common Stock related to the issuance of its Common Stock under any of the
Guarantor's benefit plans for its directors, officers or employees, (x) as a
result of a reclassification of the the Guarantor's Capital Stock or the
exchange or conversion of one series or class of the Guarantor's Capital Stock
for another series or class of the Guarantor's Capital Stock, (y) the purchase
of fractional interests in shares of the Guarantor's Capital Stock pursuant to
the conversion or exchange provisions of such Capital Stock or the security
being converted or exchanged, and (z) redemptions or purchases of any rights
pursuant to a shareholder rights plan and the issuance of Capital Stock pursuant
to such rights), (ii) make any payments of principal, interest or premium, if
any, on or repay or repurchase or redeem any debt securities of the Guarantor
that rank pari passu with or junior to the Debentures (other than any
redemption, liquidation, interest, principal or guarantee payment by the
Guarantor where the payment is made by way of securities (including the
Guarantor's Capital Stock) that rank pari passu with or junior to the securities
on which such redemption, interest, principal or guarantee payment is being
made) or (iii) make any guarantee payments regarding the foregoing (other than
payments under the Trust Preferred Securities Guarantee) .
SECTION 6.2 Ranking
(a) This Trust Preferred Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate and junior
in right of payment to all other liabilities of the Guarantor (other than the
obligations of the Guarantor under the Trust Common Securities Guarantee, which
are subordinate and junior to this Trust Preferred Securities Guarantee to the
extent provided therein), (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor or any of its
Affiliates and (iii) senior to the Guarantor's common stock. Any similar
guarantee given hereafter by the Guarantor with respect to trust preferred
securities that is silent as to seniority will rank pari passu with this Trust
Preferred Securities Guarantee.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Trust Preferred Securities Guarantee shall terminate upon (i) full
payment of the Redemption Price of all Trust Preferred Securities, (ii) upon the
distribution of the Subordinated Debentures to the Holders of all of the Trust
Preferred Securities, (iii) upon the conversion of all Trust Preferred
Securities pursuant to the Declaration or (iv) upon full payment of the amounts
payable in accordance with the Declaration upon liquidation of the Issuer.
Notwithstanding the foregoing, this Trust Preferred Securities Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder of Trust Preferred Securities must restore payment of any sums
paid under the Trust Preferred Securities or under this Trust Preferred
Securities Guarantee.
<PAGE> 20
ARTICLE VIII
CERTAIN COVENANTS
SECTION 8.1 Payment of Additional Sums
Guarantor covenants and agrees that if and so long as (i) the Issuer is
the holder of all the Subordinated Debentures, (ii) a Trust Tax Event (as
defined in the Declaration) in respect of the Issuer has occurred and is
continuing and (iii) the Guarantor has elected, and has not revoked such
election, to pay Additional Sums (as defined in the Declaration) in respect of
the Trust Common Securities and Trust Preferred Securities, the Guarantor will
pay to the Issuer such Additional Sums.
SECTION 8.2 Continued Ownership of Trust Common Securities, Etc.
The Guarantor covenants and agrees (i) for so long as the Trust
Preferred Securities remain outstanding, (a) to maintain directly or indirectly
100% ownership of the Trust Common Securities, provided that certain successor
Persons in transactions which are permitted by Article VIII of the Subordinated
Indenture may succeed to the Guarantor's ownership of the Trust Common
Securities, (b) not to voluntarily terminate, wind-up or liquidate the Issuer,
except in connection with (I) a distribution of the Subordinated Debentures to
the holders of the Trust Securities in liquidation of the Issuer, (II) the
redemption of all Trust Securities or (III) certain mergers, consolidations or
amalgamations permitted by the Declaration, and (c) not to convert Subordinated
Debentures except pursuant to a notice of conversion delivered to the Conversion
Agent (as defined in the Declaration) by a Holder or by a holder of Trust Common
Securities, (ii) to use its reasonable commercial efforts, consistent with the
terms and provisions of the Declaration, to cause the Issuer to remain
classified as a grantor trust and not taxable as a corporation for United States
federal income tax purposes, (iii) to maintain the reservation for issuance of
the number of shares of Common Stock that would be required from time to time
upon the conversion of all the Subordinated Debentures then outstanding, (iv) to
deliver shares of Common Stock upon an election by a Holder to convert such
Trust Preferred Securities into or for Common Stock, and (v) to honor all
obligations relating to the conversion or exchange of the Trust Preferred
Securities into or for Common Stock or Subordinated Debentures.
ARTICLE IX
INDEMNIFICATION, ETC.
SECTION 9.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Guarantor or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Trust Preferred
Securities Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Trust Preferred Securities Guarantee or by law, except that an
<PAGE> 21
Indemnified Person shall be liable for any such loss, damage or claim incurred
by reason of such Indemnified Person's gross negligence or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and if selected by such Indemnified Person,
has been selected by such Indemnified Person with reasonable care by or on
behalf of the Guarantor, including information, opinions, reports or statements
as to the value and amount of the assets, liabilities, profits, losses, or any
other facts pertinent to the existence and amount of assets from which
Distributions to Holders of Trust Preferred Securities might properly be paid.
SECTION 9.2 Fees, Expenses and Indemnification
The Guarantor covenants and agrees to pay to the Trust Preferred
Guarantee Trustee from time to time, and the Trust Preferred Guarantee Trustee
shall be entitled to, reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust), and the Guarantor
will pay or reimburse the Trust Preferred Guarantee Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trust Preferred Guarantee Trustee in accordance with any of the provisions of
this Trust Preferred Securities Guarantee (including the reasonable compensation
and the expenses and disbursements of its counsel and all Persons not regularly
in its employ), except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Guarantor also agrees to indemnify each
Indemnified Person for, and to hold each Indemnified Person harmless against,
any and all loss, liability, damage, claim or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
obligations of the Guarantor under this Section 9.2 shall survive the
termination of this Trust Preferred Securities Guarantee or the earlier
resignation or removal of the Trust Preferred Guarantee Trustee.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Successors and Assigns
<PAGE> 22
All guarantees and agreements contained in this Trust Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Trust Preferred Securities then outstanding.
SECTION 10.2 Amendments
Except with respect to any changes that do not materially adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Trust Preferred Securities Guarantee may only be amended with
the prior approval of the Holders of at least a Majority in Liquidation Amount
of the Trust Preferred Securities. The provisions of the Declaration with
respect to consents to amendments (whether at a meeting or otherwise) shall
apply to the giving of such approval.
SECTION 10.3 Consolidations and Mergers
Upon any consolidation of the Guarantor with, or merger of the Guarantor
into, any other Person or any sale, transfer or lease of the properties and
assets of the Guarantor as, or substantially as, an entirety by the Guarantor,
the successor Person formed by such consolidation or into which the Guarantor is
merged or to which such sale, transfer or lease is made shall execute and
deliver to the Trust Preferred Guarantee Trustee an instrument of assumption in
form satisfactory to the Trust Preferred Guarantee Trustee whereby such
successor expressly assumes the due and punctual performance and observance of
all of the covenants and conditions of this Trust Preferred Securities Guarantee
to be performed by the Guarantor and such successor Person shall thereupon
succeed to, and be substituted for, and may exercise every right and power of,
the Guarantor under this Trust Preferred Securities Guarantee with the same
effect as if such successor Person had been named originally as the Guarantor
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Trust Preferred
Securities Guarantee. Notwithstanding the foregoing, the predecessor Person may
elect, at its option, not to be so relieved of such obligations and covenants,
provided that the predecessor Person and the successor Person shall agree in
writing to be co-obligors jointly and severally with respect to all such
obligations and covenants. Concurrently with the delivery to the Trust Preferred
Guarantee Trustee of such instrument of assumption, the Guarantor shall deliver
to the Trust Preferred Guarantee Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that such consolidation, merger, transfer, sale or
lease and the transactions effected in connection therewith and the related
instrument of assumption comply with this Article and that all conditions
precedent herein provided relating to such transaction and assumption have been
complied with.
SECTION 10.4 Notices
All notices provided for in this Trust Preferred Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Trust Preferred Guarantee Trustee, at the Trust
Preferred
<PAGE> 23
Guarantee Trustee's Corporate Trust Office, Attention: Corporate Trustee,
Administration Department.
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Trust Preferred Securities and the Trust Preferred Guarantee
Trustee):
American Classic Voyages Co.
Two North Riverside Plaza
Chicago, Illinois 60606
Attention:
(c) If given to any Holder of Trust Preferred Securities, at the address
set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 10.5 Benefit
This Trust Preferred Securities Guarantee is solely for the benefit of
the Holders of the Trust Preferred Securities and, subject to Section 3.1(a), is
not separately transferable from the Trust Preferred Securities.
SECTION 10.6 Governing Law
THIS TRUST PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
<PAGE> 24
THIS TRUST PREFERRED SECURITIES GUARANTEE is executed as of the day and
year first above written.
AMERICAN CLASSIC VOYAGES CO.,
as Guarantor
By:
--------------------------------
THE BANK OF NEW YORK,
as Trust Preferred Guarantee Trustee
By:
--------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 5.1
[Letterhead of Seyfarth, Shaw, Fairweather & Geraldson]
January 14, 2000
American Classic Voyages Co.
Two North Riverside Plaza, Suite 200
Chicago, Illinois 60606
Re: American Classic Voyages Co.
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel for American Classic Voyages Co., a Delaware
corporation (the "Company"), in connection with the preparation of the Company's
Registration Statement on Form S-3 filed with the Securities and Exchange
Commission on January 14, 2000 (the "Registration Statement"). The Registration
Statement relates to the registration of (i) shares of the Company's common
stock, par value $.01 per share (the "Common Stock"), (ii) shares of the
Company's preferred stock, par value $.01 per share (the "Preferred Stock"),
(iii) and the Company's subordinated debt securities (the "Subordinated Debt
Securities") in amounts, at prices and on terms to be determined at the time of
the offering. The Registration Statement also relates to the guarantees by the
Company of the preferred securities of the AMCV Capital Trust I (the "Trust"),
pursuant to a guarantee agreement to be entered into by the Company (the
"Preferred Securities Guarantee Agreement"). Unless otherwise specified in the
applicable prospectus supplement, the Subordinated Debt Securities to be issued
to the Trust will be issued under the Junior Convertible Subordinated Indenture
between the Company and the Bank of New York, as Trustee (the "Junior
Convertible Subordinated Indenture") and all other Subordinated Debt Securities
will be issued under the Subordinated Indenture between the Company and the Bank
of New York, as Trustee (the "Subordinated Indenture").
In connection with the opinions set forth below, we have examined
originals or copies, certified or otherwise identified to our satisfaction, of
(i) the Company's Second Amended and Restated Certificate of Incorporation
("Certificate of Incorporation") and Third Amended and Restated By-laws (the
"Bylaws"), as each existed on the date hereof, (ii) the Registration Statement,
including all amendments thereto and the prospectus contained therein, (iii)
certain resolutions of the Company's Board of Directors, (iv) the form of
Subordinated Indenture, (v) the form of Junior Convertible Subordinated
Indenture and (vi) such other documents as we deemed necessary or appropriate in
connection with the opinions set forth below. In such examination, we have
assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies and the authenticity of the originals of such latter
documents. As to any facts material to the opinions set forth below which
<PAGE> 2
American Classic Voyages Co.
January 13, 2000
Page 2
we did not independently establish or verify, we have relied upon statements and
representations of officers and other representatives of the Company and others.
Based upon and subject to the foregoing, we are of the opinion that:
1. When (a) the Registration Statement, as finally amended (including
any necessary post-effective amendments), shall have become effective under the
Securities Act of 1933, as amended (the "Securities Act") and the Subordinated
Indenture, including any necessary supplemental indenture, shall have been duly
qualified under the Trust Indenture Act of 1939, as amended, (ii) a prospectus
supplement with respect to such series of Subordinated Debt Securities shall
have been filed with the Securities and Exchange Commission in compliance with
the Securities Act and the rules and regulations thereunder; (iii) a Board
Resolution within the meaning of the Subordinated Indenture shall have been duly
issued, or supplemental indenture entered into, in accordance with the
Subordinated Indenture detailing the establishment of such series of
Subordinated Debt Securities; and (iv) such series of Subordinated Debt
Securities shall have been duly executed and authenticated and shall have been
duly delivered to purchasers thereof against payment of the agreed consideration
therefor, each such series of Subordinated Debt Securities will be legally
issued and binding obligations of the Company (except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws affecting the enforcement of creditors' rights
generally and by the effect of general principles of equity, regardless of
whether considered in a proceeding in equity or at law).
2. When (i) the Registration Statement, as finally amended (including
any necessary post-effective amendments), shall have become effective under the
Securities Act and the Junior Convertible Subordinated Indenture, including any
necessary supplemental indenture, shall have been duly qualified under the Trust
Indenture Act of 1939, as amended; (ii) a prospectus supplement with respect to
such series of Subordinated Debt Securities shall have been filed with the
Commission in compliance with the Securities Act and the rules and regulations
thereunder; (iii) a Board Resolution within the meaning of the Junior
Convertible Subordinated Indenture shall have been duly issued, or supplemental
indenture entered into, in accordance with the Junior Convertible Subordinated
Indenture detailing the establishment of such series of Subordinated Debt
Securities; and (iv) such series of Subordinated Debt Securities shall have been
duly delivered to the purchasers thereof against payment of the agreed
consideration therefor, each such series of Subordinated Debt Securities will be
legally issued and binding obligations of the Company (except as may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws affecting the enforcement of creditors' rights
generally and by the effect of general principles of equity, regardless of
whether considered in a proceeding in equity or at law).
<PAGE> 3
American Classic Voyages Co.
January 13, 2000
Page 3
3. When (i) the Certificate of Incorporation has authorized a
sufficient number of shares of Common Stock to permit issuance of a given number
of shares of Common Stock, (ii) the Common Stock has been authorized for
issuance by the Company's Board of Directors, and (iii) the Common Stock has
been duly issued and the consideration therefor has been received by the
Company, the shares of Common Stock so issued will be legally issued, fully paid
and nonassessable.
4. When (i) the Board of Directors of the Company has duly adopted
resolutions specifying the terms and conditions of the applicable series of
Preferred Stock, (ii) the Company has filed with the Delaware Secretary of State
articles of amendment or a certificate of designation with respect to such
series of Preferred Stock and (iii) such series of Preferred Stock has been
authorized for issuance by the Company's Board of Directors, duly issued and the
consideration therefor has been received by the Company, the shares of Preferred
Stock within such series of Preferred Stock so issued will be legally issued,
fully paid and nonassessable.
5. When a Preferred Securities Guarantee has been duly executed and
delivered by the Company and the preferred guarantee trustee, such Preferred
Securities Guarantee will constitute the legal and binding obligation of the
Company (except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws affecting
the enforcement of creditors' rights generally and by the effect of general
principles of equity, regardless of whether considered in a proceeding in equity
or at law).
We do not express herein any opinion concerning any law other than
applicable federal law and the corporate law of the State of Delaware, which we
deem to include the Delaware General Corporation Law, the applicable provisions
of the Delaware Constitution and the reported judicial decisions interpreting
the laws.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. We also consent
to the reference to our firm under the caption "Legal Matters" in the
Registration Statement. In giving this consent, we do not thereby admit that we
are included in the category of persons whose consent is required under Section
7 of the Securities Act or the rules and regulations of the Securities and
Exchange Commission.
Very truly yours,
DSS/RFW
<PAGE> 1
EXHIBIT 5.2
[Letterhead of Richards, Layton & Finger, P.A.]
January 14, 2000
AMCV Capital Trust I
c/o American Classic Voyages Co.
Two North Riverside Plaza, Suite 200
Chicago, IL 60606
Re: AMCV Capital Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for American Classic
Voyages Co., a Delaware corporation (the "Company"), and AMCV Capital Trust I, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of
January 12, 2000 (the "Certificate"), as filed in the office of the Secretary of
State of the State of Delaware (the "Secretary of State") on January 12, 2000;
(b) The Declaration of Trust of the Trust, dated as of
January 12, 2000, between the Company, as sponsor, and the trustees of the Trust
named therein;
(c) A form of Amended and Restated Declaration of Trust
of the Trust (including Exhibits A-1 and A-2 thereto) (the "Declaration"), to be
entered into among the Company, as sponsor, the trustees of the Trust named
therein, and the holders, from time to time, of undivided beneficial interests
in the assets of the Trust, attached as an exhibit to the Registration Statement
(as defined below);
(d) The Registration Statement on Form S-3 (the
"Registration Statement"), including a prospectus (the "Prospectus"), relating
to the preferred securities of the Trust
<PAGE> 2
AMCV Capital Trust I
January 14, 2000
Page 2
representing undivided beneficial interests in the assets of the Trust (each, a
"Preferred Security" and collectively, the "Preferred Securities"), as proposed
to be filed by the Company and the Trust with the Securities and Exchange
Commission on or about January 14, 2000; and
(e) A Certificate of Good Standing for the Trust, dated
January 14, 2000, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined are
used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, that each of
the parties to the documents examined by us has been duly created, organized or
formed, as the case may be, and is validly existing in good standing under the
laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) that each of the parties to the documents
examined by us has duly authorized, executed and delivered such documents, (vi)
the receipt by each Person to whom a Preferred Security is to be issued by the
Trust (collectively, the "Preferred Security Holders") of a Trust Preferred
Security Certificate for such Preferred Security and the payment for the
Preferred Security acquired by it, in accordance with the Declaration and the
Registration Statement, and (vii) that the Preferred Securities are issued and
sold to the Preferred Security Holders
<PAGE> 3
AMCV Capital Trust I
January 14, 2000
Page 3
in accordance with the Declaration and the Registration Statement. We have not
participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
2. The Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of
the Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. We note that the Preferred
Security Holders may be obligated to make payments as set forth in the
Declaration.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of Persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
BJK/JRS
<PAGE> 1
EXHIBIT 12.1
American Classic Voyages Co.
Computation of Ratio of Earnings to Fixed Charges and
the Ratio of Earnings to Combined Fixed
Charges and
Preferred and Preference Stock Dividend Requirements
(Dollars in Thousands)
<TABLE>
<CAPTION>
Nine Months
Year Ended December 31, Ended September 30,
1994 1995 1996 1997 1998 1998 (c) 1999 (c)
---- ---- ---- ---- ---- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income (loss) from continuing operations
before income taxes ($2,434) ($15,979) ($25,935) $4,049 $264 ($2,224) ($2,867)
Adjustments
Minority interest in losses of subsidiary (1,332) (2,558) - - - - -
Fixed charges, as below 2,274 8,237 8,391 7,265 6,917 5,210 5,086
Interest capatilized (1,200) (2,247) - - - - (478)
----------------------------------------------------------------------
Earnings as adjusted ($2,692) ($12,547) ($17,544) $11,314 $7,181 $2,986 $1,741
======================================================================
Fixed charges:
Interest on indebtedness, expensed
or capitalized $1,917 $7,955 $8,111 $6,963 $6,639 $5,002 $4,854
Portion of rent expense representative
of the interest factor (a) 357 282 280 302 278 208 232
---------------------------------------------------------------------
Total fixed charges $2,274 $8,237 $8,391 $7,265 $6,917 $5,210 $5,086
Ratio of earnings to fixed charges (b) * * * 1.56 1.04 * *
====================================================================
</TABLE>
(a) Represents one-third of rent expense, which management believes to be
representative of the interest portion of rent expense.
(b) The ratio of earnings to combined fixed charges and preferred and
preference stock dividend requirements for the periods presented is the same as
the ratio of earnings to fixed charges since American Classic Voyages Co. has no
outstanding preferred stock or preference stock and, therefore, no dividend
requirements.
(c) Because of the seasonal nature of American Classic Voyages Co.'s business,
the ratio for the nine month period may not necessarily be indicative of the
ratio that will result for the full year.
* Earnings were not adequate in 1994, 1995, 1996 and for the nine months ended
September 30, 1998 and 1999 to cover combined fixed charges, of which the
coverage deficiency was $4,966, $20,784, $25,935, $2,224 and $3,345,
respectively.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF KPMG LLP
The Board of Directors
American Classic Voyages Co.:
We consent to incorporation by reference in this registration statement on Form
S-3 of American Classic Voyages Co. of our report dated February 19, 1999,
relating to the consolidated balance sheets of American Classic Voyages Co. and
subsidiaries as of December 31, 1998, and 1997, and the related consolidated
statements of operations, retained earnings, and cash flows for each of the
years in the three-year period ended December 31, 1998, which report appears in
the December 31, 1998, annual report on Form 10-K of American Classic
Voyages Co.
KPMG LLP
Chicago, Illinois
January 13, 1999
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
That Samuel Zell has made, constituted and appointed, and BY THESE
PRESENTS does make, constitute and appoint Philip C. Calian and Jordan B. Allen,
of the City of Chicago, County of Cook, State of Illinois, true and lawful
ATTORNEYS for himself and in his name, place and stead to sign that certain
Registration Statement on Form S-3 (and all amendments thereto), including all
exhibits and all supplementary prospectuses thereto covering the issuance of an
aggregate of up to $250,000,000 of securities which shall consist of securities
issued by (i) American Classic Voyages Co., which may issue securities in the
form of common stock, preferred stock, preferred stock convertible into common
stock, guarantees of preferred securities which AMCV Capital Trust I may issue,
and/or subordinated debt securities which may be convertible into the Company's
common stock and (ii) AMCV Capital Trust I, which may issue preferred securities
and preferred securities convertible into common stock, which Form S-3 is to be
filed with the Securities and Exchange Commission on or about January 14, 2000,
to be executed by the undersigned in his capacity as Chairman of the Board of
Directors of American Classic Voyages Co., and to perform any and all other acts
necessary in order to consummate such transaction, giving and granting unto
Philip C. Calian and Jordan B. Allen said ATTORNEYS full power and authority to
do and perform all and every act and thing whatsoever, requisite and necessary
to be done in and about the premises, as fully, to all intents and purposes, as
the undersigned might or could do if personally present at the doing thereof,
with full power of substitution and revocation, hereby ratifying and confirming
all that Philip C. Calian and Jordan B. Allen said ATTORNEYS or their
substitutes shall lawfully do or cause to be done by virtue hereof.
Notwithstanding any other provision of this Power of Attorney to the
contrary, the power granted to said Philip C. Calian and Jordan B. Allen shall
not include the power to negotiate checks.
IN TESTIMONY WHEREOF, the undersigned has hereunto set his hand and
seal this 13th day of January, 2000.
/s/ SAMUEL ZELL
----------------------------------------
Samuel Zell
<PAGE> 1
EXHIBIT 24.2
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
That John R. Berry has made, constituted and appointed, and BY THESE
PRESENTS does make, constitute and appoint Philip C. Calian and Jordan B. Allen,
of the City of Chicago, County of Cook, State of Illinois, true and lawful
ATTORNEYS for himself and in his name, place and stead to sign that certain
Registration Statement on Form S-3 (and all amendments thereto), including all
exhibits and all supplementary prospectuses thereto covering the issuance of an
aggregate of up to $250,000,000 of securities which shall consist of securities
issued by (i) American Classic Voyages Co., which may issue securities in the
form of common stock, preferred stock, preferred stock convertible into common
stock, guarantees of preferred securities which AMCV Capital Trust I may issue,
and/or subordinated debt securities which may be convertible into the Company's
common stock and (ii) AMCV Capital Trust I, which may issue preferred securities
and preferred securities convertible into common stock, which Form S-3 is to be
filed with the Securities and Exchange Commission on or about January 14, 2000,
to be executed by the undersigned in his capacity as a member of the Board of
Directors of American Classic Voyages Co., and to perform any and all other acts
necessary in order to consummate such transaction, giving and granting unto
Philip C. Calian and Jordan B. Allen said ATTORNEYS full power and authority to
do and perform all and every act and thing whatsoever, requisite and necessary
to be done in and about the premises, as fully, to all intents and purposes, as
the undersigned might or could do if personally present at the doing thereof,
with full power of substitution and revocation, hereby ratifying and confirming
all that Philip C. Calian and Jordan B. Allen said ATTORNEYS or their
substitutes shall lawfully do or cause to be done by virtue hereof.
Notwithstanding any other provision of this Power of Attorney to the
contrary, the power granted to said Philip C. Calian and Jordan B. Allen shall
not include the power to negotiate checks.
IN TESTIMONY WHEREOF, the undersigned has hereunto set his hand and
seal this 14th day of January, 2000.
/s/ JOHN R. BERRY
----------------------------------------
John R. Berry
<PAGE> 1
EXHIBIT 24.3
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
That Bradbury Dyer, III has made, constituted and appointed, and BY
THESE PRESENTS does make, constitute and appoint Philip C. Calian and Jordan B.
Allen, of the City of Chicago, County of Cook, State of Illinois, true and
lawful ATTORNEYS for himself and in his name, place and stead to sign that
certain Registration Statement on Form S-3 (and all amendments thereto),
including all exhibits and all supplementary prospectuses thereto covering the
issuance of an aggregate of up to $250,000,000 of securities which shall consist
of securities issued by (i) American Classic Voyages Co., which may issue
securities in the form of common stock, preferred stock, preferred stock
convertible into common stock, guarantees of preferred securities which AMCV
Capital Trust I may issue, and/or subordinated debt securities which may be
convertible into the Company's common stock and (ii) AMCV Capital Trust I, which
may issue preferred securities and preferred securities convertible into common
stock, which Form S-3 is to be filed with the Securities and Exchange Commission
on or about January 14, 2000, to be executed by the undersigned in his capacity
as a member of the Board of Directors of American Classic Voyages Co., and to
perform any and all other acts necessary in order to consummate such
transaction, giving and granting unto Philip C. Calian and Jordan B. Allen said
ATTORNEYS full power and authority to do and perform all and every act and thing
whatsoever, requisite and necessary to be done in and about the premises, as
fully, to all intents and purposes, as the undersigned might or could do if
personally present at the doing thereof, with full power of substitution and
revocation, hereby ratifying and confirming all that Philip C. Calian and Jordan
B. Allen said ATTORNEYS or their substitutes shall lawfully do or cause to be
done by virtue hereof.
Notwithstanding any other provision of this Power of Attorney to the
contrary, the power granted to said Philip C. Calian and Jordan B. Allen shall
not include the power to negotiate checks.
IN TESTIMONY WHEREOF, the undersigned has hereunto set his hand and
seal this 13th day of January, 2000.
/s/ BRADBURY DYER, III
----------------------------------------
Bradbury Dyer, III
<PAGE> 1
EXHIBIT 24.4
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
That Laurence S. Geller has made, constituted and appointed, and BY
THESE PRESENTS does make, constitute and appoint Philip C. Calian and Jordan B.
Allen, of the City of Chicago, County of Cook, State of Illinois, true and
lawful ATTORNEYS for himself and in his name, place and stead to sign that
certain Registration Statement on Form S-3 (and all amendments thereto),
including all exhibits and all supplementary prospectuses thereto covering the
issuance of an aggregate of up to $250,000,000 of securities which shall consist
of securities issued by (i) American Classic Voyages Co., which may issue
securities in the form of common stock, preferred stock, preferred stock
convertible into common stock, guarantees of preferred securities which AMCV
Capital Trust I may issue, and/or subordinated debt securities which may be
convertible into the Company's common stock and (ii) AMCV Capital Trust I, which
may issue preferred securities and preferred securities convertible into common
stock, which Form S-3 is to be filed with the Securities and Exchange Commission
on or about January 14, 2000, to be executed by the undersigned in his capacity
as a member of the Board of Directors of American Classic Voyages Co., and to
perform any and all other acts necessary in order to consummate such
transaction, giving and granting unto Philip C. Calian and Jordan B. Allen said
ATTORNEYS full power and authority to do and perform all and every act and thing
whatsoever, requisite and necessary to be done in and about the premises, as
fully, to all intents and purposes, as the undersigned might or could do if
personally present at the doing thereof, with full power of substitution and
revocation, hereby ratifying and confirming all that Philip C. Calian and Jordan
B. Allen said ATTORNEYS or their substitutes shall lawfully do or cause to be
done by virtue hereof.
Notwithstanding any other provision of this Power of Attorney to the
contrary, the power granted to said Philip C. Calian and Jordan B. Allen shall
not include the power to negotiate checks.
IN TESTIMONY WHEREOF, the undersigned has hereunto set his hand and
seal this 14th day of January, 2000.
/s/ LAURENCE S. GELLER
----------------------------------------
Laurence S. Geller
<PAGE> 1
EXHIBIT 24.5
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
That Arthur A. Greenberg has made, constituted and appointed, and BY
THESE PRESENTS does make, constitute and appoint Philip C. Calian and Jordan B.
Allen, of the City of Chicago, County of Cook, State of Illinois, true and
lawful ATTORNEYS for himself and in his name, place and stead to sign that
certain Registration Statement on Form S-3 (and all amendments thereto),
including all exhibits and all supplementary prospectuses thereto covering the
issuance of an aggregate of up to $250,000,000 of securities which shall consist
of securities issued by (i) American Classic Voyages Co., which may issue
securities in the form of common stock, preferred stock, preferred stock
convertible into common stock, guarantees of preferred securities which AMCV
Capital Trust I may issue, and/or subordinated debt securities which may be
convertible into the Company's common stock and (ii) AMCV Capital Trust I, which
may issue preferred securities and preferred securities convertible into common
stock, which Form S-3 is to be filed with the Securities and Exchange Commission
on or about January 14, 2000, to be executed by the undersigned in his capacity
as a member of the Board of Directors of American Classic Voyages Co., and to
perform any and all other acts necessary in order to consummate such
transaction, giving and granting unto Philip C. Calian and Jordan B. Allen said
ATTORNEYS full power and authority to do and perform all and every act and thing
whatsoever, requisite and necessary to be done in and about the premises, as
fully, to all intents and purposes, as the undersigned might or could do if
personally present at the doing thereof, with full power of substitution and
revocation, hereby ratifying and confirming all that Philip C. Calian and Jordan
B. Allen said ATTORNEYS or their substitutes shall lawfully do or cause to be
done by virtue hereof.
Notwithstanding any other provision of this Power of Attorney to the
contrary, the power granted to said Philip C. Calian and Jordan B. Allen shall
not include the power to negotiate checks.
IN TESTIMONY WHEREOF, the undersigned has hereunto set his hand and
seal this 13th day of January, 2000.
\s\ ARTHUR A. GREENBERG
----------------------------------------
Arthur A. Greenberg
<PAGE> 1
EXHIBIT 24.6
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
That Mark Slezak has made, constituted and appointed, and BY THESE
PRESENTS does make, constitute and appoint Philip C. Calian and Jordan B. Allen,
of the City of Chicago, County of Cook, State of Illinois, true and lawful
ATTORNEYS for himself and in his name, place and stead to sign that certain
Registration Statement on Form S-3 (and all amendments thereto), including all
exhibits and all supplementary prospectuses thereto covering the issuance of an
aggregate of up to $250,000,000 of securities which shall consist of securities
issued by (i) American Classic Voyages Co., which may issue securities in the
form of common stock, preferred stock, preferred stock convertible into common
stock, guarantees of preferred securities which AMCV Capital Trust I may issue,
and/or subordinated debt securities which may be convertible into the Company's
common stock and (ii) AMCV Capital Trust I, which may issue preferred securities
and preferred securities convertible into common stock, which Form S-3 is to be
filed with the Securities and Exchange Commission on or about January 14, 2000,
to be executed by the undersigned in his capacity as a member of the Board of
Directors of American Classic Voyages Co., and to perform any and all other acts
necessary in order to consummate such transaction, giving and granting unto
Philip C. Calian and Jordan B. Allen said ATTORNEYS full power and authority to
do and perform all and every act and thing whatsoever, requisite and necessary
to be done in and about the premises, as fully, to all intents and purposes, as
the undersigned might or could do if personally present at the doing thereof,
with full power of substitution and revocation, hereby ratifying and confirming
all that Philip C. Calian and Jordan B. Allen said ATTORNEYS or their
substitutes shall lawfully do or cause to be done by virtue hereof.
Notwithstanding any other provision of this Power of Attorney to the
contrary, the power granted to said Philip C. Calian and Jordan B. Allen shall
not include the power to negotiate checks.
IN TESTIMONY WHEREOF, the undersigned has hereunto set his hand and
seal this 13th day of January, 2000.
/s/ MARK SLEZAK
----------------------------------------
Mark Slezak
<PAGE> 1
EXHIBIT 24.7
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
That Jerry R. Jacob has made, constituted and appointed, and BY THESE
PRESENTS does make, constitute and appoint Philip C. Calian and Jordan B. Allen,
of the City of Chicago, County of Cook, State of Illinois, true and lawful
ATTORNEYS for himself and in his name, place and stead to sign that certain
Registration Statement on Form S-3 (and all amendments thereto), including all
exhibits and all supplementary prospectuses thereto covering the issuance of an
aggregate of up to $250,000,000 of securities which shall consist of securities
issued by (i) American Classic Voyages Co., which may issue securities in the
form of common stock, preferred stock, preferred stock convertible into common
stock, guarantees of preferred securities which AMCV Capital Trust I may issue,
and/or subordinated debt securities which may be convertible into the Company's
common stock and (ii) AMCV Capital Trust I, which may issue preferred securities
and preferred securities convertible into common stock, which Form S-3 is to be
filed with the Securities and Exchange Commission on or about January 14, 2000,
to be executed by the undersigned in his capacity as a member of the Board of
Directors of American Classic Voyages Co., and to perform any and all other acts
necessary in order to consummate such transaction, giving and granting unto
Philip C. Calian and Jordan B. Allen said ATTORNEYS full power and authority to
do and perform all and every act and thing whatsoever, requisite and necessary
to be done in and about the premises, as fully, to all intents and purposes, as
the undersigned might or could do if personally present at the doing thereof,
with full power of substitution and revocation, hereby ratifying and confirming
all that Philip C. Calian and Jordan B. Allen said ATTORNEYS or their
substitutes shall lawfully do or cause to be done by virtue hereof.
Notwithstanding any other provision of this Power of Attorney to the
contrary, the power granted to said Philip C. Calian and Jordan B. Allen shall
not include the power to negotiate checks.
IN TESTIMONY WHEREOF, the undersigned has hereunto set his hand and
seal this 13th day of January, 2000.
/s/JERRY R. JACOB
----------------------------------------
Jerry R. Jacob
<PAGE> 1
EXHIBIT 24.8
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
That Joseph P. Sullivan has made, constituted and appointed, and BY
THESE PRESENTS does make, constitute and appoint Philip C. Calian and Jordan B.
Allen, of the City of Chicago, County of Cook, State of Illinois, true and
lawful ATTORNEYS for himself and in his name, place and stead to sign that
certain Registration Statement on Form S-3 (and all amendments thereto),
including all exhibits and all supplementary prospectuses thereto covering the
issuance of an aggregate of up to $250,000,000 of securities which shall consist
of securities issued by (i) American Classic Voyages Co., which may issue
securities in the form of common stock, preferred stock, preferred stock
convertible into common stock, guarantees of preferred securities which AMCV
Capital Trust I may issue, and/or subordinated debt securities which may be
convertible into the Company's common stock and (ii) AMCV Capital Trust I, which
may issue preferred securities and preferred securities convertible into common
stock, which Form S-3 is to be filed with the Securities and Exchange Commission
on or about January 14, 2000, to be executed by the undersigned in his capacity
as a member of the Board of Directors of American Classic Voyages Co., and to
perform any and all other acts necessary in order to consummate such
transaction, giving and granting unto Philip C. Calian and Jordan B. Allen said
ATTORNEYS full power and authority to do and perform all and every act and thing
whatsoever, requisite and necessary to be done in and about the premises, as
fully, to all intents and purposes, as the undersigned might or could do if
personally present at the doing thereof, with full power of substitution and
revocation, hereby ratifying and confirming all that Philip C. Calian and Jordan
B. Allen said ATTORNEYS or their substitutes shall lawfully do or cause to be
done by virtue hereof.
Notwithstanding any other provision of this Power of Attorney to the
contrary, the power granted to said Philip C. Calian and Jordan B. Allen shall
not include the power to negotiate checks.
IN TESTIMONY WHEREOF, the undersigned has hereunto set his hand and
seal this 13th day of January, 2000.
/s/JOSEPH P. SULLIVAN
----------------------------------------
Joseph P. Sullivan
<PAGE> 1
EXHIBIT 24.9
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
That Jeffrey N. Watanabe has made, constituted and appointed, and BY
THESE PRESENTS does make, constitute and appoint Philip C. Calian and Jordan B.
Allen, of the City of Chicago, County of Cook, State of Illinois, true and
lawful ATTORNEYS for himself and in his name, place and stead to sign that
certain Registration Statement on Form S-3 (and all amendments thereto),
including all exhibits and all supplementary prospectuses thereto covering the
issuance of an aggregate of up to $250,000,000 of securities which shall consist
of securities issued by (i) American Classic Voyages Co., which may issue
securities in the form of common stock, preferred stock, preferred stock
convertible into common stock, guarantees of preferred securities which AMCV
Capital Trust I may issue, and/or subordinated debt securities which may be
convertible into the Company's common stock and (ii) AMCV Capital Trust I, which
may issue preferred securities and preferred securities convertible into common
stock, which Form S-3 is to be filed with the Securities and Exchange Commission
on or about January 14, 2000, to be executed by the undersigned in his capacity
as a member of the Board of Directors of American Classic Voyages Co., and to
perform any and all other acts necessary in order to consummate such
transaction, giving and granting unto Philip C. Calian and Jordan B. Allen said
ATTORNEYS full power and authority to do and perform all and every act and thing
whatsoever, requisite and necessary to be done in and about the premises, as
fully, to all intents and purposes, as the undersigned might or could do if
personally present at the doing thereof, with full power of substitution and
revocation, hereby ratifying and confirming all that Philip C. Calian and Jordan
B. Allen said ATTORNEYS or their substitutes shall lawfully do or cause to be
done by virtue hereof.
Notwithstanding any other provision of this Power of Attorney to the
contrary, the power granted to said Philip C. Calian and Jordan B. Allen shall
not include the power to negotiate checks.
IN TESTIMONY WHEREOF, the undersigned has hereunto set his hand and
seal this 14th day of January, 2000.
\s\ JEFFREY N. WATANABE
----------------------------------------
Jeffrey N. Watanabe
<PAGE> 1
EXHIBIT 25.1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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)(2) |__|
---------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------------------
American Classic Voyages Co.
(Exact name of obligor as specified in its charter)
Delaware 31-0303330
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Two North Riverside Plaza, Suite 200
Chicago, Illinois 60606
(Address of principal executive offices) (Zip code)
---------------------------
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
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.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York, N.Y.
New York 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y.
10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, 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 12th day of January, 2000.
THE BANK OF NEW YORK
By: /s/ VAN K. BROWN
------------------------------
Name: VAN K. BROWN
Title: ASSISTANT VICE PRESIDENT
-3-
<PAGE> 1
EXHIBIT 25.2
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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)(2) |__|
---------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------------------
AMCV Capital Trust I
(Exact name of obligor as specified in its charter)
Delaware Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Two North Riverside Plaza, Suite 200
Chicago, Illinois 60606
(Address of principal executive offices) (Zip code)
---------------------------
Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
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.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York, N.Y.
New York 10006,and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y.
10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, 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 12th day of January, 2000.
THE BANK OF NEW YORK
By: /s/ VAN K. BROWN
-------------------------------
Name: VAN K. BROWN
Title: ASSISTANT VICE PRESIDENT
-3-
<PAGE> 1
EXHIBIT 25.3
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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)(2) |__|
---------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------------------
American Classic Voyages Co.
(Exact name of obligor as specified in its charter)
Delaware 31-0303330
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Two North Riverside Plaza, Suite 200
Chicago, Illinois 60606
(Address of principal executive offices) (Zip code)
---------------------------
Guarantee of preferred securities of AMCV Capital Trust I
(Title of the indenture securities)
================================================================================
<PAGE> 2
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.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York, N.Y.
New York 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y.
10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, 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 12th day of January, 2000.
THE BANK OF NEW YORK
By: /s/ VAN K. BROWN
-------------------------------
Name: VAN K. BROWN
Title: ASSISTANT VICE PRESIDENT
-3-
