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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (Date of earliest event reported): NOVEMBER 5, 1997
EVI, INC.
(Exact name of registrant as specified in charter)
DELAWARE 1-13086 04-2515019
(State of Incorporation) (Commission File No.) (I.R.S. Employer
Identification No.)
5 POST OAK PARK, SUITE 1760,
HOUSTON, TEXAS 77027-3415
(Address of Principal Executive Offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (713) 297-8400
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Exhibit Index Appears on Page 10
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ITEM 5. OTHER EVENTS.
On November 3, 1997, pursuant to the provisions of the Placement
Agreement dated October 28, 1997 (the "Placement Agreement"), by and among EVI,
Inc. (the "Company"), Morgan Stanley & Co. Incorporated, Donaldson, Lufkin &
Jenrette Securities Corporation, Credit Suisse First Boston Corporation, Lehman
Brothers Inc., Prudential Securities Incorporated and Schroder & Co. Inc.
(collectively, the "Initial Purchasers"), the Company issued and sold to the
Initial Purchasers in a private placement an aggregate principal amount of $350
million of the Company's 5% Convertible Subordinated Preferred Equivalent
Debentures due 2027 (the "Debentures"). The Initial Purchasers resold the
Debentures to various qualified institutional buyers, accredited investors and
foreign investors in transactions exempt from registration under the Securities
Act of 1933 (the "Securities Act") pursuant to Rule 144A and Regulation S
thereunder. The Company also granted the Initial Purchasers a 30-day option
to purchase up to $52,500,000 additional principal amount of the Debentures
solely to cover over-allotments, if any.
The Debentures (i) mature on November 1, 2027, (ii) bear interest at
an annual rate of 5% payable on February 1, May 1, August 1 and November 1 of
each year, commencing February 1, 1998, (iii) are convertible at any time after
90 days following the latest date of original issuance of the Debentures at a
conversion price of $80 per share of common stock, $1.00 par value, of the
Company (the "Common Stock"), (iv) are redeemable by the Company at any time on
or after November 4, 2000 at redemption prices set forth in the Supplemental
Indenture relating to the Debentures, and (v) are subordinated in right of
payment of principal and interest to the prior payment in full of certain
existing and future senior indebtedness of the Company. The terms of the
Debentures are more fully described in the Indenture dated as of October 15,
1997 (the "Indenture"), between the Company and The Chase Manhattan Bank, as
Trustee, as supplemented by the First Supplemental Indenture dated as of October
28, 1997 (the "Supplemental Indenture"), which such Indenture and Supplemental
Indenture are filed as Exhibits 4.1 and 4.2, respectively, and are hereby
incorporated herein by reference.
Pursuant to a Registration Rights Agreement dated November 3, 1997,
between the Company and the Initial Purchasers, the Company has agreed to file
with the Securities and Exchange Commission within 180 days of the latest date
of original issuance of the Debentures, to use its reasonable best efforts to
cause to be declared effective within 90 days following the latest date of
original issuance of the Debentures, a registration statement with respect to
the resale of the Debentures and the underlying Common Stock. The Company will
be required to pay liquidated damages to the holders of the Debentures or the
underlying Common Stock under certain circumstances if the Company is not in
compliance with its registration obligations. The terms and provisions of the
Registration Rights Agreement are more fully described in the Registration
Rights Agreement which is filed as Exhibit 99.1 and is hereby incorporated
herein by reference.
The net proceeds received by the Company from the sale of the
Debentures, after deducting the expenses of the transaction, were approximately
$340 million. Approximately $200 million of the net proceeds will be used to
fund the Company's previously announced acquisitions of Trico Industries,
Inc.("Trico"), BMW Monarch (Lloydminster) Ltd. ("BMW Monarch") and BMW Pump,
Inc. ("BMW Pump"). The balance of the net proceeds are expected to be used for
general corporate purposes, including future acquisitions and expansions. In
addition, although the Company will have no obligation to do so, the Company may
also use a portion of the net proceeds from the issuance and sale of the
Debentures in connection with a possible refinancing of the Company's 10 1/4%
Senior Notes due 2004.
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PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
The following tables set forth certain summary pro forma condensed
consolidated financial data of the Company giving effect to the issuance and
sale of the Debentures. The unaudited Pro Forma Condensed Consolidated
Statements of Income give effect to (i) the acquisition by the Company of
Tubular Corporation of America ("TCA") on August 5, 1996, (ii) the acquisition
by the Company of GulfMark International, Inc. ("GulfMark") and its assets of
the date of acquisition on May 1, 1997 (the "GulfMark Retained Assets"), and
(iii) the issuance and sale of the Debentures as if these transactions had
occurred on January 1, 1996. The unaudited Pro Forma Condensed Consolidated
Balance Sheet gives effect to the issuance and sale of the Debentures as if the
transaction had occurred on June 30, 1997. The following summary pro forma
condensed consolidated financial data and related notes thereto have been
restated to reflect the Company's May 1997 two-for-one stock split. The pro
forma information set forth below is not necessarily indicative of the results
that actually would have been achieved had such transactions been consummated as
of the dates reflected or that may be achieved in the future. The pro forma
financial data does not give effect to the Company's proposed acquisitions of
Trico, BMW Monarch or BMW Pump or various smaller acquisitions effected by the
Company during 1997. This information should be read in conjunction with the
Company's Management's Discussion and Analysis of Financial Condition and
Results of Operations contained in its Annual Report on Form 10-K for the year
ended December 31, 1996, as amended, and Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997, and the Company's, TCA's, and GulfMark Retained
Assets' consolidated financial statements and related notes thereto previously
filed.
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PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
AS OF JUNE 30, 1997
(IN THOUSANDS)
ASSETS
<TABLE>
<CAPTION>
OFFERING
HISTORICAL ADJUSTMENTS PRO FORMA
---------- ----------- ----------
<S> <C> <C> <C>
Current assets:
Cash and cash equivalents........................... $ 54,973 $339,600(a) $ 394,573
Accounts receivable, net............................ 161,138 -- 161,138
Inventories......................................... 228,092 -- 228,092
Prepaid expenses and other.......................... 34,425 347(b) 34,772
--------- -------- ----------
Total current assets........................ 478,628 339,947 818,575
--------- -------- ----------
Property, plant and equipment, net.................... 230,761 -- 230,761
Goodwill, net......................................... 154,179 -- 154,179
Other assets.......................................... 32,777 10,053(b) 42,830
--------- -------- ----------
$ 896,345 $350,000 $1,246,345
========= ======== ==========
LIABILITIES AND STOCKHOLDERS' INVESTMENT
Current liabilities:
Short-term borrowings, primarily under revolving
lines of credit.................................. $ 7,400 $ -- $ 7,400
Current maturities of long-term debt................ 7,774 -- 7,774
Accounts payable.................................... 117,702 -- 117,702
Other accrued liabilities........................... 86,774 -- 86,774
--------- -------- ----------
Total current liabilities................... 219,650 -- 219,650
--------- -------- ----------
Long-term debt........................................ 138,468 -- 138,468
Deferred income taxes, net............................ 27,343 -- 27,343
Other liabilities..................................... 25,044 -- 25,044
5% Convertible Subordinated Preferred Equivalent
Debentures.......................................... -- 350,000(a) 350,000
Stockholders' investment:
Common stock........................................ 50,614 -- 50,614
Capital in excess of par............................ 404,254 -- 404,254
Retained earnings................................... 191,740 -- 191,740
Foreign currency translation adjustment............. (8,828) -- (8,828)
Treasury stock, at cost............................. (151,940) -- (151,940)
--------- -------- ----------
Total stockholders' investment.............. 485,840 -- 485,840
--------- -------- ----------
$ 896,345 $350,000 $1,246,345
========= ======== ==========
</TABLE>
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PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF INCOME
FOR THE TWELVE MONTHS ENDED DECEMBER 31, 1996
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
TCA HISTORICAL PRO FORMA ADJUSTMENTS
EVI FOR THE GULFMARK ------------------------------ EVI
HISTORICAL SIX MONTHS ENDED RETAINED ASSETS GULFMARK THE PRO
CONSOLIDATED JUNE 30, 1996(C) HISTORICAL TCA MERGER OFFERING FORMA
------------ ---------------- --------------- ------ -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Revenues........................ $478,020 $28,260 $6,994 $ -- $ -- $ -- $513,274
-------- ------- ------ ------ ------- -------- --------
Costs and expenses:
Cost of sales................. 373,509 24,381 3,922 579(d) -- -- 402,391
Selling, general and
administrative attributable
to segments................. 51,885 1,006 2,068 197(e) -- -- 55,156
Corporate, general and
administrative.............. 6,339 -- -- -- -- -- 6,339
-------- ------- ------ ------ ------- -------- --------
431,733 25,387 5,990 776 -- -- 463,886
-------- ------- ------ ------ ------- -------- --------
Operating income................ 46,287 2,873 1,004 (776) -- -- 49,388
-------- ------- ------ ------ ------- -------- --------
Other income (expense):
Interest expense.............. (16,454) (602) -- 602(f) -- (17,845)(g) (34,299)
Interest income............... 2,163 -- -- -- -- -- 2,163
Other income (expense), net... (450) (742) 6,264 875(h) (6,264)(i) -- (317)
-------- ------- ------ ------ ------- -------- --------
(14,741) (1,344) 6,264 1,477 (6,264) (17,845) (32,453)
-------- ------- ------ ------ ------- -------- --------
Income (loss) before income
taxes......................... 31,546 1,529 7,268 701 (6,264) (17,845) 16,935
Provision (benefit) for income
taxes......................... 7,041 34 2,472 245(j) (2,192)(j) (6,246)(j) 1,354
-------- ------- ------ ------ ------- -------- --------
Income (loss) from continuing
operations.................... $ 24,505 $ 1,495 $4,796 $ 456 $(4,072) $(11,599) $ 15,581
======== ======= ====== ====== ======= ======== ========
Earnings per share from
continuing operations......... $ 0.60 $ 0.38(k)
Weighted average shares
outstanding................... 40,706 41,298(k)
</TABLE>
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PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF INCOME
FOR THE SIX MONTHS ENDED JUNE 30, 1997
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
GULFMARK
RETAINED ASSETS
HISTORICAL FOR THE
EVI THREE MONTHS
HISTORICAL ENDED OFFERING EVI
CONSOLIDATED MARCH 31, 1997(l) ADJUSTMENTS PRO FORMA
------------ ------------------ ----------- ---------
<S> <C> <C> <C> <C>
Revenues.................................... $376,108 $ 818 $ -- $376,926
-------- ------- -------- --------
Costs and expenses:
Cost of sales............................. 281,318 678 -- 281,996
Selling, general and administrative
attributable to segments............... 39,072 688 -- 39,760
Corporate, general and administrative..... 3,509 -- -- 3,509
-------- ------- -------- --------
323,899 1,366 -- 325,265
-------- ------- -------- --------
Operating income............................ 52,209 (548) -- 51,661
-------- ------- -------- --------
Other income (expense):
Interest expense.......................... (8,166) -- (8,923)(g) (17,089)
Interest income........................... 3,408 -- -- 3,408
Gain on sale of marketable securities..... 3,352 -- -- 3,352
Other income (expense), net............... 763 -- -- 763
-------- ------- -------- --------
(643) -- (8,923) (9,566)
-------- ------- -------- --------
Income (loss) before income taxes........... 51,566 (548) (8,923) 42,095
Provision (benefit) for income taxes........ 18,159 100 (3,123)(j) 15,136
-------- ------- -------- --------
Income (loss) from continuing operations.... $ 33,407 $(648) $ (5,800) $ 26,959
======== ======= ======== ========
Earnings per share from continuing
operations................................ $ 0.73 $ 0.59(k)
Weighted average shares outstanding......... 45,711 45,711(k)
</TABLE>
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NOTES TO PRO FORMA CONDENSED
CONSOLIDATED FINANCIAL STATEMENTS
GENERAL
The following notes set forth the assumptions used in preparing the
unaudited pro forma financial statements. The pro forma adjustments are based on
estimates made by the Company's management using information currently
available.
PRO FORMA ADJUSTMENTS
The adjustments to the accompanying unaudited pro forma condensed
consolidated balance sheet are described below:
(a) To reflect the sale of the $350 million principal amount of the
Debentures and the payment of approximately $10.4 million of related debt
issuance costs.
(b) To capitalize approximately $10.4 million of debt issuance costs
related to the Debentures.
The adjustments to the accompanying unaudited pro forma condensed
consolidated statements of income are described below:
(c) Reflects the results of TCA, which was acquired on August 5, 1996,
from January 1, 1996, through June 30, 1996. Actual results of TCA are
included in the Company's historical results from August 5, 1996.
(d) Reflects an increase in depreciation expense associated with the
assets of TCA, which was acquired on August 5, 1996 as a result of the
$11.6 million fair value increase of property, plant, and equipment through
the purchase price allocation. Such increase in property, plant, and
equipment is being depreciated over an average life of ten years.
(e) To record amortization expense relating to the estimated $15.8
million of excess of cost over fair value of tangible assets acquired in
connection with the acquisition of TCA. Such excess of cost over fair value
of net tangible assets acquired is being amortized over 40 years.
(f) To reduce TCA's interest expense to reflect the Company's
retirement of TCA's $7.7 million debt outstanding at the date of
acquisition.
(g) To adjust interest expense for the Debentures at the rate of 5%
per annum and to record amortization expense of related debt issuance costs
over the life of the Debentures.
(h) To eliminate certain expenses incurred by TCA relating to the
Company's acquisition of TCA. These expenses relate to amounts paid to an
investment banking firm which represented TCA in the Company's acquisition
of TCA.
(i) To eliminate the $6,264,000 gain recorded in the GulfMark Retained
Assets with respect to the sale by GulfMark of 600,000 shares of the
Company's Common Stock in July 1996. The net proceeds from this sale
were not received by the Company nor included in the GulfMark Retained
Assets at the time of the acquisition of GulfMark by the Company.
(j) To record the income tax provision (benefit) related to the effect
of the pro forma adjustments at the statutory rate.
(k) Pro forma weighted average shares outstanding reflect the average
number of common shares outstanding for the period. The effect of the sale
of the Debentures on fully-diluted earnings per share is anti-dilutive. At
December 31, 1996, historical and pro forma shares of Common Stock
outstanding, restated for the effect of the May 1997 two-for-one stock
split, are 45,657,842. At June 30, 1997, historical and pro forma shares of
Common Stock outstanding are 45,830,540.
(l) Reflects the results of the GulfMark Retained Assets, which were
acquired on May 1, 1997, from January 1, 1997, through March 31, 1997.
Actual results of the GulfMark Retained Assets are included in the
Company's historical results from May 1, 1997.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
4.1 - Indenture dated as of October 15, 1997, between EVI, Inc.
and The Chase Manhattan Bank, as Trustee.
4.2 - First Supplemental Indenture dated as of October 28, 1997,
between EVI, Inc. and The Chase Manhattan Bank, as Trustee
(including form of Debenture).
99.1 - Registration Rights Agreement dated November 3, 1997, by
and among EVI, Inc., Morgan Stanley & Co. Incorporated,
Donaldson, Lufkin & Jenrette Securities Corporation,
Credit Suisse First Boston Corporation, Lehman Brothers
Inc., Prudential Securities Incorporated and Schroder &
Co. Inc.
ITEM 9. SALES OF EQUITY SECURITIES PURSUANT TO REGULATION S.
Of the $350 million aggregate principal amount of Debentures issued and
sold by the Company to the Initial Purchasers on November 3, 1997, $950,000
principal amount of the Debentures were sold for cash to various foreign
institutional purchasers without registration under the Securities Act in
reliance upon the exemptions afforded by Regulation S promulgated under the
Securities Act. The Company received net proceeds of $923,875 from such sale.
See Item 5 for additional information with respect to the Debentures
and the issuance and sale thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
EVI, INC.
Dated: November 5, 1997 /s/ Frances R. Powell
------------------------------------------
Frances R. Powell
Vice President, Accounting
and Controller
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
4.1 Indenture dated as of October 15, 1997, between EVI,Inc.
and The Chase Manhattan Bank, as Trustee.
4.2 First Supplemental Indenture dated as of October 28, 1997,
between EVI, Inc. and The Chase Manhattan Bank, as
Trustee (including form of Debenture).
99.1 Registration Rights Agreement dated November 3, 1997, by
and among EVI, Inc., Morgan Stanley & Co. Incorporated,
Donaldson, Lufkin & Jenrette Securities Corporation,
Credit Suisse First Boston Corporation, Lehman Brothers
Inc., Prudential Securities Incorporated and Schroder & Co.
Inc.
</TABLE>
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Exhibit 4.1
EVI, INC.,
as Issuer
TO
THE CHASE MANHATTAN BANK,
as Trustee
Indenture
Dated as of October 15, 1997
Subordinated Debentures
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TABLE OF CONTENTS:(1)
<TABLE>
PAGE
RECITALS OF THE COMPANY
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<S> <C> <C>
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.3 Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.4 Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.5 Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1.6 Notice to Holders of Debentures; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1.7 Language of Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.8 Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.9 Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.10 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.11 Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.12 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.13 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1.14 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1.15 Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1.16 Immunity of Incorporators, Shareholders, Officers, Directors and Employees . . . . . . . . . 13
ARTICLE II
DEBENTURE FORMS
<S> <C> <C>
Section 2.1 Forms Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.2 Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.3 Debentures in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.4 Form of Legend for Book-Entry Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.5 Form of Conversion Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
- - - - - - - - - - - - - - - --------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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<TABLE>
ARTICLE III
THE DEBENTURES
<S> <C> <C>
Section 3.1 Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.2 Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 3.3 Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . 19
Section 3.4 Temporary Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 3.5 Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . 23
Section 3.6 Mutilated, Destroyed, Lost and Stolen Debentures and Coupons . . . . . . . . . . . . . . . . 26
Section 3.7 Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.8 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 3.9 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 3.10 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.11 Electronic Debenture Issuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.12 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 4.2 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 4.3 Company's Option to Effect Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . 30
Section 4.4 Discharge and Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 4.5 Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 4.6 Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE V
REMEDIES
Section 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 5.2 Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . 35
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . 36
Section 5.4 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.5 Trustee May Enforce Claims Without Possession of Debentures or Coupons . . . . . . . . . . . 37
Section 5.6 Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.7 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 5.9 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 5.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 5.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 5.12 Control by Holders of Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 5.13 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 5.14 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 5.15 Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
</TABLE>
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<TABLE>
ARTICLE VI
THE TRUSTEE
<S> <C> <C>
Section 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default . . . . . . . . 41
Section 6.2 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.3 Not Responsible for Recitals or Issuance of Debentures . . . . . . . . . . . . . . . . . . . 43
Section 6.4 May Hold Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.5 Money Held in Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.6 Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.7 Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.8 Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.9 Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.10 Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.11 Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.12 Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . 46
Section 6.13 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.14. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Company to Furnish Trustee Names and Addresses of Debentureholders . . . . . . . . . . . . . 49
Section 7.2 Preservation of Information: Communications to Holders . . . . . . . . . . . . . . . . . . . 49
Section 7.3 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 7.4 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
</TABLE>
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<TABLE>
ARTICLE VIII
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
<S> <C> <C>
Section 8.1 Company May Consolidate, Etc. on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . 51
Section 8.2 Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 8.3 Opinion of Counsel to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . 52
Section 9.2 Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . 53
Section 9.3 Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 9.4 Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 9.5 Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 9.6 Reference in Debentures to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE X
COVENANTS
Section 10.1 Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 10.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 10.3 Money for Debentures Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . 56
Section 10.4 Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 10.5 Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 10.6 Purchase of Debentures by Company or Subsidiary . . . . . . . . . . . . . . . . . . . . . . . 58
Section 10.7 Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 10.8 Calculation of Original Issue Discount . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 10.9 Financial Information; SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE XI
REDEMPTION OF DEBENTURES
Section 11.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 11.2 Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 11.3 Selection by Trustee of Debentures to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . 60
Section 11.4 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 11.5 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 11.6 Debentures Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 11.7 Debentures Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
</TABLE>
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<TABLE>
ARTICLE XII
SINKING FUNDS
<S> <C> <C>
Section 12.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 12.2 Satisfaction of Sinking Fund Payments with Debentures . . . . . . . . . . . . . . . . . . . . 63
Section 12.3 Redemption of Debentures for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE XIII
MEETINGS OF HOLDERS OF DEBENTURES
Section 13.1 Purposes for Which Meetings May be Called . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 13.2 Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 13.3 Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 13.4 Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 13.5 Determination of Voting Rights; Conduct and Adjournment of Meetings . . . . . . . . . . . . . 65
Section 13.6 Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE XIV
CONVERSION OF DEBENTURES
Section 14.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 14.2 Exercise of Conversion Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 14.3 No Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 14.4 Adjustment of Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 14.5 Notice of Certain Corporate Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 14.6 Reservation of Shares of Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 14.7 Payment of Certain Taxes upon Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 14.8 Nonassessability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 14.9 Effect of Consolidation or Merger on Conversion Privilege . . . . . . . . . . . . . . . . . . 69
Section 14.10 Duties of Trustee Regarding Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 14.11 Repayment of Certain Funds upon Conversion . . . . . . . . . . . . . . . . . . . . . . . . . 70
</TABLE>
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<TABLE>
ARTICLE XV
SUBORDINATION OF DEBENTURES
<S> <C> <C>
Section 15.1 Debentures Subordinate to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 15.2 Payment Over of Proceeds Upon Dissolution, Etc . . . . . . . . . . . . . . . . . . . . . . . 70
Section 15.3 Prior Payment to Senior Indebtedness Upon Acceleration of Debentures . . . . . . . . . . . . 71
Section 15.4 No Payment When Senior Indebtedness in Default . . . . . . . . . . . . . . . . . . . . . . . 72
Section 15.5 Payment Permitted in Certain Situations . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 15.6 Subrogation to Rights of Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . . . 73
Section 15.7 Provisions Solely to Define Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 15.8 Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 15.9 No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 15.10 Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 15.11 Reliance on Judicial Order or Certificate of Liquidating Agent . . . . . . . . . . . . . . . 75
Section 15.12 Trustee Not Fiduciary for Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . . 75
Section 15.13 Rights of Trustee as Holder of Senior Indebtedness, Preservation of Trustee's
Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 15.14 Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 15.15 Certain Conversions Deemed Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
</TABLE>
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<PAGE> 8
INDENTURE, dated as of October 15, 1997, between EVI, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 5 Post Oak Park,
Suite 1760, Houston, Texas 77027-3415 and The Chase Manhattan Bank, a New York
banking corporation having its principal corporate trust office at 450 West
33rd Street, 15th Floor, New York, New York 10001, as Trustee (herein called
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 secured or
unsecured subordinated debentures, notes or other evidences of indebtedness
(herein called the "Debentures"), 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.
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 or of a 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 in the United States of America, 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
of America at the date of such computation; and
(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.
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<PAGE> 9
"Act", when used with respect to any Holder of a Debenture, has
the meaning specified in Section 1.4.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act of 1933, as amended, or any successor rule thereunder.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.13 to act on behalf of the Trustee to authenticate
Debentures 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. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business Day.
"Bearer Debenture" means any Debenture in the form established
pursuant to Section 2.1 which is payable to bearer.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company 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.
"Book-Entry Debenture" means a Debenture bearing the legend
specified in Section 2.4, evidencing all or part of a series of Debentures,
issued to the Depositary for such series or its nominee, and registered in the
name of such Depositary or nominee. Book-Entry Debentures shall not be deemed
to be securities in global form for purposes of Sections 2.1 and 2.3 and
Article III of this Indenture.
"Business Day", when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the
Debentures, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions and trust companies in the City of New
York, that Place of Payment or other location are authorized or obligated by
law or executive order to close.
"Cedel S.A." means Cedel Bank, societe anonyme, or its successor.
"Commission" means the United States Securities and Exchange
Commission.
"Common Depositary" has the meaning specified in Section 3.4.
"Common Stock" includes any stock of any class of the Company or
its successor 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 the Company and which is not subject to redemption by the
Company. Subject to the anti-dilution provisions of any convertible Debenture,
however, shares of
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<PAGE> 10
Company Common Stock issuable on conversion of a Debenture shall include only
(i) shares of the class designated as Common Stock of the Company at the date
of any supplemental indenture, Board Resolution or other instrument authorizing
such Debenture or (ii) shares of any class or classes resulting from any
reclassification or reclassifications thereof or merger (in which the Company
is not the surviving public company and such previously outstanding Common
Stock of the Company is converted into common stock of such surviving public
company) and which have no preference in respect of the payment of dividends or
the distribution of assets upon 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 classes resulting from all such reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture 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 the Chairman of the Board of
Directors or the President or any Executive Vice President or any Vice
President and by the Treasurer or the Secretary or any Assistant Treasurer or
any Assistant Secretary of the Company and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee
at which at any particular time its corporate trust business shall be
administered.
"Corporation" means a corporation, association, company,
joint-stock company or business trust.
"Coupon" means any interest coupon appertaining to a Bearer
Debenture.
"Credit Agreement" means, the Amended and Restated Credit
Agreement dated as of December 6, 1996 among the Company, the Subsidiary
Guarantors defined therein, the Lenders defined therein and The Chase Manhattan
Bank and any renewal, extension or replacement thereof which shall constitute
the principal bank credit agreement of the Company.
"Debenture Register" and "Debenture Registrar" have the respective
meanings specified in Section 3.5.
"Debentures" has the meaning stated in the first recital of this
Indenture and more particularly means any Debentures authenticated and
delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Defeasance" has the meaning specified in Section 4.4
"Depositary" means, with respect to the Debentures of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Debentures, the clearing agency registered under the Exchange Act specified for
that purpose as contemplated by Section 3.1.
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<PAGE> 11
"Designated Senior Indebtedness" shall mean Senior Indebtedness
under the Credit Agreement and any other Senior Indebtedness of the Company so
designated at the time of the incurrence thereof.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"Euro-clear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Date" has the meaning specified in Section 3.4.
"Holder", when used with respect to any Debenture, means in the
case of a Registered Debenture, the Person in whose name the Debenture is
registered in the Debenture Register and in the case of a Bearer Debenture the
bearer thereof and, when used with respect to any Coupon, means the bearer
thereof.
"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
and shall include the terms of Debentures of any series established as
contemplated by Section 3.1.
"Interest," when used with respect to an Original Issue Discount
Debenture which by its terms bears interest only at Maturity, means interest
payable at Maturity.
"Interest Payment Date," when used with respect to any Debenture,
means the Stated Maturity of an installment of interest on such Debenture.
"Maturity," when used with respect to any Debenture, means the
date on which the principal of such Debenture or an installment of such
principal becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption, notice
of option to elect repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board of Directors or the President or any Executive Vice President or
any Vice President and by the Treasurer or the Secretary or any Assistant
Treasurer or any Assistant Secretary of the Company and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be an employee of or counsel for the Company and who shall be acceptable to the
Trustee.
"Original Issue Discount Debenture" means any Debenture which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
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<PAGE> 12
"Outstanding," when used with respect to Debentures of any series,
means, as of the date of determination, all Debentures of such series
theretofore authenticated and delivered under this Indenture, except:
(i) Debentures of such series theretofore canceled by the
Trustee or any Paying Agent or delivered to the Trustee for cancellation or
that have previously been canceled;
(ii) Debentures of such series for whose payment or redemption
of which money or United States Government Obligations in the necessary
amount has been theretofore deposited in accordance with Article IV 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 Debentures of such series and any
Coupons appertaining thereto; provided that, if Debentures of such series
or portions of Debentures of such series are to be redeemed prior to the
Maturity thereof, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made;
(iii) Debentures of such series which have been paid pursuant to
Section 3.6 or in exchange for or in lieu of which other Debentures of such
series have been authenticated and delivered pursuant to this Indenture,
other than any Debentures of such series in respect of which there shall
have been presented to the Trustee proof satisfactory to it that Debentures
of such series are held by a bona fide purchaser in whose hands Debentures
of such series are valid obligations of the Company; and
(iv) Debentures of such series as to which Defeasance has been
effected pursuant to Section 4.4.
provided, however, that in determining whether the Holders of the requisite
aggregate principal amount of the Outstanding Debentures of such series have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder or whether a quorum is present at a meeting of Holders of Debentures
of such Series (A) the principal amount of an Original Issue Discount Debenture
of such series 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 pursuant to Section
5.2, (B) the principal amount of a Debenture of such series denominated in a
foreign currency or currencies shall be the U.S. dollar equivalent, determined
on the date of original issuance of such Debenture, of the principal amount
(or, in the case of an Original Issue Discount Debenture of such series, the
U.S. dollar equivalent on the date of original issuance of such Debenture of
the amount determined as provided in (A) above) of such Debenture, and (C)
Debentures of such series owned by the Company or any other obligor upon such
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, or upon any such
determination as to the presence of a quorum, only Debentures of such series
which the Trustee actually knows to be so owned shall be so disregarded.
Debentures of such series so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Debentures and that
the pledgee is not the Company or any other obligor upon such Debentures or any
Affiliate of the Company or of such other obligor.
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<PAGE> 13
"Paying Agent" means any Person authorized by the Company to pay
the principal of and any premium and interest on any Debentures or any Coupons
appertaining thereto on behalf of the Company.
"Person" means a legal person, including any individual,
corporation, state, partnership, joint venture, trust, association, joint stock
company, limited liability company, unincorporated association or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Place of Payment," when used with respect to the Debentures of
any series, means the place or places where, subject to the provisions of
Section 10.2, the principal of and any premium and interest on Debentures of
such series are payable as specified as contemplated by Section 3.1.
"Predecessor Debenture" of a Debenture of any series means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such Debenture; and, for the purposes of this definition, any
Debenture of any series authenticated and delivered under Section 3.6 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Debenture or
a Debenture to which a mutilated, destroyed, lost or stolen Coupon appertains
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Debenture or the Debenture to which the mutilated, destroyed, lost or
stolen Coupon appertains, as the case may be.
"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.
"Registered Debenture" means any Debenture in the form established
pursuant to Section 2.1 which is registered in the Debenture Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Debentures of any series means the date
specified for that purpose as contemplated by Section 3.1, whether or not such
day is a Business Day.
"Representative" means (a) the indenture trustee or other trustee,
agent or representative for any Designated Senior Indebtedness or (b) with
respect to any Designated Senior Indebtedness that does not have any such
trustee, agent or other representative, (i) in the case of such Designated
Senior Indebtedness issued pursuant to an agreement providing for voting
arrangements as among the holders or owners of such Designated Senior
Indebtedness, any holder or owner of such Designated Senior Indebtedness acting
with the consent of the required persons necessary to bind such holders or
owners of such Designated Senior Indebtedness and (ii) in the case of all other
such Designated Senior Indebtedness, the holder or owner of such Designated
Senior Indebtedness.
"Responsible Officer" means, when used with respect to the
Trustee, the chairman of the board of directors, the executive committee of the
board of directors, the chairman of the trust committee, the president, any
vice president, any assistant vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer, the controller or any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust
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<PAGE> 14
matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Rule 144(k)" means Rule 144(k) under The Securities Act or any
successor rule.
"Securities Act" means the Securities Act of 1933, as amended, or
any successor statute.
"Senior Indebtedness" means, with respect to the Company, (i) the
principal, premium, if any, and interest in respect of (a) indebtedness of the
Company for money borrowed under any credit agreements, notes, guarantees or
similar documents and (b) indebtedness evidenced by securities, debentures,
bonds or other similar instruments issued by the Company, including, without
limitation, all indebtedness and all obligations of the Company to pay fees and
other amounts, under the Credit Agreement, and any refinancing of the Credit
Agreement in the bank credit market (including institutional participants
therein), including interest accruing on or after a bankruptcy or other similar
event, whether or not an allowed claim therein; (ii) all capital lease
obligations of the Company; (iii) all obligations of the Company incurred,
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of the Company and all obligations of the Company under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of the Company for
reimbursement on any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction; (v) all obligations of the Company
(contingent or otherwise) with respect to interest rate or other swap, cap or
collar agreements, oil or gas commodity hedge transactions or other similar
instruments or agreements or foreign currency hedge, exchange, purchase or
similar instruments or agreements; (vi) all obligations of the types referred
to in clauses (i) through (v) of other Persons for the payment of which the
Company is responsible or liable as obligor, guarantor, surety or otherwise;
and (vii) all obligations of the types referred to in clauses (i) through (vi)
of other Persons secured by any lien on any property or asset of the Company
(whether or not such obligation is assumed by the Company), whether outstanding
on the date of the Indenture or thereafter created, incurred, assumed,
guaranteed or in effect guaranteed by the Company, except for (A) any such
indebtedness that is by its terms subordinated to or pari passu with the
Debentures, and (B) any indebtedness between the Company and its Affiliates,
including all other debt securities and guarantees in respect of those debt
securities, issued to any trust, or a trustee of such trust, partnership or
other entity affiliated with the Company that is a financing vehicle of the
Company (a "Financing Entity") in connection with the issuance by such
Financing Entity of preferred securities or other securities that rank pari
passu with, or junior to, such preferred securities.
"Special Record Date" for the payment of any Defaulted Interest on
Registered Debentures of any series 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 or a Coupon representing such installment of interest as the
fixed date on which the principal of such Debenture or such installment of
principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, (i) any
corporation at least a majority of whose outstanding Voting Stock shall at the
time be owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture, business trust or similar entity, at least
a majority of whose outstanding partnership or similar interests shall at the
time be owned by such Person or by one or more of its
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<PAGE> 15
Subsidiaries or by such Person and one or more of its Subsidiaries and (iii)
any limited partnership of which such Person or any of its Subsidiaries is a
general partner.
"Transfer Restriction Termination Date" means the first date on
which the Debentures and any Common Stock issued or issuable upon the
conversion or exchange thereof (other than (i) such securities acquired by the
Company or any Affiliate thereof and (ii) Common Stock issued upon the
conversion or exchange of any such security described in clause (i) above) may
be sold pursuant to Rule 144(k).
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture 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 Debentures of any series shall mean the Trustee with respect to
Debentures of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed,
provided, however, that in the event 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.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States
federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien fiduciary of a foreign estate or trust, or a
foreign partnership one or more of the members of which is, for United States
federal income tax purposes, a foreign corporation, a non-resident alien
individual or a nonresident alien fiduciary of a foreign estate or trust of a
foreign partnership.
"U.S. Government Obligations" means direct obligations of the
United States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with
respect to any such U.S. Government Obligations or a specific payment of
principal of or interest on any such U.S. Government Obligations held by such
custodian for the account of the holder of such depository receipt, provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of principal of or interest on the U.S.
Government Obligations evidenced by such depository receipt.
"Voting Stock", as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only
by reason of the occurrence of a contingency.
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"Yield to Maturity" means the yield to maturity on Debentures of
any series, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
Section 1.2 Compliance Certificates and Opinions. Except as
otherwise expressly provided by this Indenture, upon any application or request
by the Company to the Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion by or on behalf of the Company with
respect to compliance with a condition or covenant provided for in this
Indenture, except for certificates provided for in Section 10.8, 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,
the 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.
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 such officer's
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.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4 Acts of Holders. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided 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 by such Holders in person or by agent duly appointed in writing.
If Debentures of any series are issuable as Bearer Debentures of such series,
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 of such series may, alternatively, be embodied in and evidenced
by the record of Holders of Debentures of such series voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting of
Holders of Debentures of such series duly called and held in accordance with
the provisions of Article XIII, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments and so voting at
any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent or proxy, or of the holding by any Person of a
Debenture of any series, shall be sufficient for any purpose of this Indenture
and (subject to Section 6.2) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section. The record of any
meeting of Holders of Debentures of any series shall be proved in the manner
provided in Section 13.6.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered
Debentures of any series held by any Person, and the date of holding the same,
shall be proved by the Debenture Register.
(d) The principal amount and serial numbers of Bearer
Debentures of any series held by any Person, and the date of holding the same,
may be proved by the production of such Bearer Debentures or by a certificate
executed, as depositary, by any trust company, bank, banker or other
depositary, wherever situated, if such certificate shall be deemed by the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Debentures therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Debentures, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Debenture continues until
(i) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Debenture is produced, or (ii) such Bearer Debenture is
produced to the Trustee by some other Person, or (iii) such Bearer Debenture is
surrendered in exchange for a Registered Debenture, or (iv) such Bearer
Debenture is no longer Outstanding. The principal amount and serial numbers of
Bearer Debentures held by any Person, and the date of holding the same, may
also be proved in any other manner which the Trustee deems sufficient.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Debenture of any series 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
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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.
(f) With respect to the Debentures of any series, upon receipt
by the Trustee of (i) any written notice directing the time, method or place of
conducting any proceeding or exercising any trust or power pursuant to Section
5.1 with respect to Debentures of such series or (ii) any written demand,
request or notice with respect to any matter on which the Holders of Debentures
of such series are entitled to act under this Indenture, in each case from
Holders of less than, or proxies representing less than, the requisite
principal amount of Outstanding Debentures of such series entitled to give such
demand, request or notice, the Trustee shall establish a record date for
determining Holders of Outstanding Debentures of such series entitled to join
in such demand, request or notice, which record date shall be the close of
business on the day the Trustee received such demand, request or notice. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such demand, request or notice whether or
not such Holders remain Holders after such record date; provided, however, that
unless the Holders of the requisite principal amount of Outstanding Debentures
of such series shall have joined in such demand, request or notice prior to the
day which is the ninetieth day after such record date, such demand, request or
notice shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or
a proxy of a Holder, from giving, (i) after the expiration of such 90-day
period, a new demand, request or notice identical to a demand, request or
notice which has been canceled pursuant to the proviso to the preceding
sentence or (ii) during any such 90-day period, a new demand, request or notice
which has been canceled pursuant to the proviso to the preceding sentence or
(iii) during any such 90-day period, a new demand, request or notice contrary
to or different from such demand, request or notice, in either of which events
a new record date shall be established pursuant to the provisions of this
clause.
(g) The Company may set any day as the record date for the
purpose of determining the Holders of Outstanding Debentures 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 Debentures of such series. With regard to any
record date set pursuant to this paragraph, the Holders of Outstanding
Debentures of such 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. With regard
to any action that may be given or taken hereunder only by Holders of a
requisite principal amount of Outstanding Debentures of any series (or their
duly appointed agents) and for which a record date is set pursuant to this
paragraph, the Company may, at its option, set an expiration date after which
no such action purported to be given or taken by any Holder shall be effective
hereunder unless given or taken on or prior to such expiration date by Holders
of the requisite principal amount of Outstanding Debentures of such series on
such record date (or their duly appointed agents). On or prior to any
expiration date set pursuant to this paragraph, the Company may, on one or more
occasions at its option, extend such date to any later date. Nothing in this
paragraph shall prevent any Holder (or any duly appointed agent thereof) from
giving or taking, after any expiration date, any action identical to, or, at
any time, contrary to or different from, any action given or taken, or
purported to have been given or taken, hereunder by a Holder on or prior to
such date, in which event the Company may set a record date in respect thereof
pursuant to this clause. Notwithstanding the foregoing or the Trust Indenture
Act, the Company shall not set a record date for, and the provisions of this
clause shall not apply with respect to, any action to be given or taken by
Holders pursuant to Section 5.1, 5.2 or 5.12.
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<PAGE> 19
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 Trust Group, 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 the address of its principal office specified in
the first paragraph of this Indenture, to the attention of
its Treasurer, or at any other address previously furnished in writing to the
Trustee by the Company.
Section 1.6 Notice to Holders of Debentures; Waiver. Except
as otherwise expressly provided herein, where this Indenture provides for
notice to Holders of Debentures of any event:
(a) such notice shall be sufficiently given to Holders of
Registered Debentures of any series if in writing and mailed, first-class
postage prepaid, to each Holder of a Registered Debenture affected by such
event, at the address of such Holder as it appears in the Debenture
Register, not earlier than the earliest date, and not later than the latest
date, prescribed for the giving of such notice; and
(b) such notice shall be sufficiently given to Holders of
Bearer Debentures of any series if published in an Authorized Newspaper in
The City of New York, The City of London and in such other city or cities
as may be specified in such Debentures on a Business Day at least twice,
the first such publication to be not earlier than the earliest date, and
the second such publication to be not later than the latest date,
prescribed for the giving of such notice.
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 to
Holders of Registered Debentures by mail, then such notification as shall be
made with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. In any case where notice to Holders
of Registered Debentures is given by mail, neither the failure to mail such
notice, nor any defect in any notice mailed to any particular Holder of a
Registered Debenture shall affect the sufficiency of such notice with respect
to other Holders of Registered Debentures or the sufficiency of any notice to
Holders of Bearer Debentures given as provided herein.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause
it shall be impracticable to publish any notice to Holders of Bearer Debentures
as provided above, then such notification as shall be given with the approval
of the Trustee shall constitute sufficient notice to such Holders for every
purpose hereunder. Neither the failure to give notice by publication to
Holders of Bearer Debentures as provided above, nor any defect in any notice so
published, shall affect the sufficiency of any notice to Holders of Registered
Debentures given as provided herein.
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
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<PAGE> 20
the equivalent of such notice. Waivers of notice by Holders of Debentures
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.
Section 1.7 Language of Notices, Etc. Any request, demand,
authorization, direction, notice, consent or waiver 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 1.8 Conflict with Trust Indenture Act. If and to the
extent that any provision of this Indenture limits, qualifies or conflicts with
another provision included in this Indenture which is required to be included
in this Indenture by any of Sections 310 to 318, inclusive, of the Trust
Indenture Act of 1939, such required provision shall control.
Section 1.9 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 1.10 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 1.11 Separability Clause. In case any provision in
this Indenture or the Debentures or Coupons 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 1.12 Benefits of Indenture. Nothing in this
Indenture or the Debentures or Coupons, express or implied, shall give to any
Person, other than the parties hereto, any Authenticating Agent, any Paying
Agent, any Debenture Registrar and their successors hereunder, and the Holders
of Debentures and Coupons, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 1.13 Governing Law. This Indenture and the Debentures
and Coupons 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.
Section 1.14 Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date, Maturity or Stated
Maturity of any Debenture of any series shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture
or of the Debentures or Coupons other than a provision in the Debentures 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 on the next succeeding Business Day 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 on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be, to such
succeeding Business Day.
Section 1.15 Judgment Currency. The Company agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due on the Debentures of any series from the currency in which such sum
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is payable in accordance with the terms of such Debentures (the "Required
Currency") into a currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the New York Banking
Day preceding that on which a final unappealable judgment is rendered and (b)
its obligations under this Indenture to make payments in the Required Currency
(i) shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by the payee,
of the full amount of the Required Currency expressed to be payable in respect
of such payments, (ii) shall be enforceable as an alternative or additional
cause of action for the purpose of recovering in the Required Currency the
amount, if any, by which such actual receipt shall fall short of the full
amount of the Required Currency so expressed to be payable and (iii) shall not
be affected by judgment being obtained for any other sum due under this
Indenture. For purposes of the foregoing, "New York Banking Day" means any day
except a Saturday, Sunday or a legal holiday in The City of New York or a day
on which banking institutions in The City of New York are authorized or
required by law or executive order to close.
Section 1.16 Immunity of Incorporators, Shareholders,
Officers, Directors and Employees. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of a Debenture of any series, or
for any claim based thereon or otherwise in respect thereof, shall be had
against any incorporator, shareholder, officer, director or employee, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company, 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 this Indenture and the
obligations issued hereunder are solely corporate obligations of the Company,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, shareholders, officers, directors or employees,
as such, of the Company or of any successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations or agreements contained in this Indenture or in any
of the Debentures or implied therefrom; and that any and all such personal
liability, either at common law or in equity or by constitution or statute, of,
and any and all such rights and claims against, every such incorporator,
shareholder, officer, director or employee, as such, because of the creation of
the indebtedness hereby authorized, or under of by reason of the obligations or
agreements contained in this Indenture or in any of the Debentures or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Debentures.
All payments of interest and other amounts, if any, to be made by
the Trustee hereunder shall be made only from the money deposited with the
Trustee and only to the extent that the Trustee shall have sufficient income or
proceeds to make such payments in accordance with the terms of this Indenture,
and each Holder thereof, by its acceptance of a Debenture, agrees that it will
look solely to the income and proceeds deposited with the Trustee to the extent
available for distribution to such Holder as provided and that the Trustee is
not personally liable in any manner to such Holder for any amounts payable or
any liability under this Indenture or any Debenture.
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ARTICLE II
DEBENTURE FORMS
Section 2.1 Forms Generally. The Registered Debentures, if
any, of each series and the Bearer Debentures, if any, of each series and
related Coupons shall be in such form (including temporary or permanent global
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 Debentures
or Coupons, as evidenced by their execution of the Debentures or Coupons. If
temporary Debentures of any series are issued in global form as permitted by
Section 3.4, the form thereof shall be established as provided in the preceding
sentence. If the forms of Debentures or Coupons of any series (or any such
temporary global Debenture) are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified
by the Secretary or any Assistant Secretary 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 Debentures (or any such
temporary global Debenture) or Coupons.
Unless otherwise specified as contemplated by Section 3.1,
Debentures in bearer form shall have interest Coupons attached.
The definitive Debentures and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner permitted by the rules of any securities exchange, all as
determined by the officers executing such Debentures or Coupons, as evidenced
by their execution of such Debentures or Coupons.
Section 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Debentures of the series designated therein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank,
As Trustee
By:_____________________
Authorized Signatory
Section 2.3 Debentures in Global Form. If Debentures
of a series are issuable in global form, as contemplated by Section 3.1, then,
notwithstanding clause (e) of Section 3.1 and the provisions of Section 3.2,
any such Debenture shall represent such of the Outstanding Debentures of such
series as shall be specified therein and may provide that it shall represent
the aggregate amount of Outstanding Debentures from time to time endorsed
thereon and that the aggregate amount of Outstanding Debentures represented
thereby may from time to time be reduced to reflect exchanges. Any endorsement
of a Debenture in global form to reflect the amount, or any increase or
decrease in the amount, of Outstanding Debentures represented thereby shall be
made by the Trustee in such manner and upon instructions given by such Person
or Persons as shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 3.3 or Section 3.4. Subject to
the provisions of Section 3.3 and, if
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applicable, Section 3.4, the Trustee shall deliver and redeliver any Debenture
in permanent global form in the manner and upon instructions given by the
Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 3.3 or 3.4 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Debenture in global form shall be in writing but
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 Debenture represented by a Debenture in global form if such Debenture was
never issued and sold by the Company and the Company delivers to the Trustee
the Debenture in global form together with written instructions (which need not
comply with Section 1.2 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Debentures represented
thereby, together with the written statement contemplated by the last sentence
of Section 3.3.
Notwithstanding the provisions of Sections 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of and
any premium and interest on any Debenture in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.8 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat a Person as the Holder of such
principal amount of Outstanding Debentures represented by a permanent global
Debenture as shall be specified in a written statement of the Holder of such
permanent global Debenture or, in the case of a permanent global Debenture in
bearer form, of Euro-clear or Cedel S.A. which is provided to the Trustee by
such Person.
Section 2.4 Form of Legend for Book-Entry Debentures. Any
Book-Entry Debenture authenticated and delivered hereunder shall bear a legend
in substantially the following form:
"This Debenture is a Book-Entry Debenture within the meaning of
the Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Debenture is exchangeable for
Debentures registered in the name of a Person other than the Depositary or its
nominee only in the limited circumstances described in the Indenture, and no
transfer of this Debenture (other than a transfer of this Debenture 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 such limited circumstances."
Section 2.5 Form of Conversion Notice. The form of
conversion notice for the conversion of Debentures into shares of Common Stock
or other securities of the Company shall be in substantially the form included
with the applicable form of Debentures as shall be established pursuant to
Section 2.1 hereinabove.
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<PAGE> 24
ARTICLE III
THE DEBENTURES
Section 3.1 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Debentures which may be authenticated and
delivered under this Indenture is unlimited.
The Debentures 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 Officers'
Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Debentures of any series:
(i) the title of the
Debentures of the series
(which shall distinguish the
Debentures of the series from
all other series of
Debentures);
(ii) any limit upon the
aggregate principal amount of
the Debentures of the series
which may be authenticated and
delivered under this Indenture
except for Debentures of the
series authenticated and
delivered upon registration of
transfer of, or in exchange
for, or in lieu of, other
Debentures of the series
pursuant to Section 3.4, 3.5,
3.6, 9.6 or 11.7 and except for
any Debentures which, pursuant
to Section 3.3, are deemed
never to have been
authenticated and delivered
hereunder;
(iii) whether Debentures of
the series are to be issuable
as Registered Debentures,
Bearer Debentures or both,
whether any Debentures of the
series are to be issuable
initially in temporary global
form and whether any Debentures
of the series are to be
issuable in permanent global
form with or without Coupons
and, if so, whether beneficial
owners of interests in any such
permanent global Debenture may
exchange such interests for
Debentures of such series and
of like tenor of any authorized
form and denomination and the
circumstances under which any
such exchanges may occur, if
other than in the manner
provided in Section 3.5;
(iv) the Person to whom any
interest on any Registered
Debenture of the series shall
be payable, if other than 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 for such interest, the
manner in which, or the Person
to whom, any interest on any
Bearer Debenture of the series
shall be payable, if otherwise
than upon presentation and
surrender of the Coupons
appertaining thereto as they
severally mature, and the
extent to which, or the manner
in which, any interest payable
on a temporary global Debenture
on
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<PAGE> 25
an Interest Payment Date will
be paid if other than in the
manner provided in Section
3.4;
(v) the date or dates, or
the method by which such date
or dates will be determined or
extended, on which the
principal of the Debentures of
the series is payable;
(vi) the rate or rates at
which the Debentures of the
series shall bear interest, if
any, or the formula pursuant to
which such rate or rates shall
be determined, the date or
dates from which any such
interest shall accrue, the
Interest Payment Dates on which
any such interest shall be
payable, and the Regular Record
Date for any interest payable
on any Registered Debentures on
any Interest Payment Date and
the basis upon which interest
shall be calculated if other
than that of a 360-day year
consisting of twelve 30-day
months;
(vii) the place or places
where, subject to the
provisions of Sections 11.4 and
10.2, the principal of and any
premium and interest on
Debentures of the series shall
be payable, any Registered
Debentures of the series may be
surrendered for registration of
transfer, Debentures of the
series may be surrendered for
conversion or exchange, notices
and demands to or upon the
Company in respect of the
Debentures of the series and
this Indenture may be served
and where notices to Holders
of Bearer Debentures pursuant
to Section 1.6 will be
published;
(viii) the right, if any, to
extend the interest
payment periods and the
duration of such extension;
(ix) the period or periods
within which, the price or
prices at which and the terms
and conditions upon which
Debentures of the series may be
redeemed, in whole or in part,
at the option of the Company;
(x) the obligation, if
any, of the Company to redeem,
repay or purchase Debentures of
the series, or particular
Debentures within the series,
pursuant to any sinking fund or
analogous provisions and the
period or periods within which,
the price or prices at which
and the terms and conditions
upon which such Debentures
shall be redeemed, repaid or
purchased, in whole or in part,
pursuant to such obligation;
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<PAGE> 26
(xi) the terms of any
right to convert or exchange
Debentures of the series,
either at the option of the
Holder thereof or the Company,
into or for shares of Common
Stock of the Company or other
securities or property,
including without limitation
the period or periods within
which and the price or prices
(including adjustments thereto)
at which any Debentures of the
series shall be converted or
exchanged, in whole or in part
and any other provision in
addition to or in lieu of
those set forth in this
Indenture;
(xii) the denominations
in which any Registered
Debentures of the series shall
be issuable, if other than
denominations of $1,000 and any
integral multiple thereof, and
the denomination or
denominations in which any
Bearer Debentures of the series
shall be issuable, if other
than the denomination of
$5,000;
(xiii) the currency or
currencies, including composite
currencies, in which payment of
the principal of and any
premium and interest on the
Debentures of the series shall
be payable if other than
the currency of the United
States of America;
(xiv) if the principal of
and any premium or interest on
the Debentures of the series
are to be payable, at the
election of the Holders thereof
or the Company, in a currency
or currencies, including
composite currencies, other
than that or those in which the
Debentures are stated to be
payable, the currency or
currencies in which payment of
the principal of and any
premium and interest on
Debentures 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;
(xv) if the amount of
payments of principal of and
any premium or interest on the
Debentures of the series may be
determined with reference to an
index, the manner in which
such amounts shall be
determined;
(xvi) if other than the
principal amount thereof, the
portion of the principal amount
of any Debentures of the
series which shall be payable
upon
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<PAGE> 27
declaration of acceleration of
the Maturity thereof pursuant
to Section 5.2;
(xvii) the Person who
shall be the Debenture
Registrar, if other than the
Trustee;
(xviii) whether the Debentures
of the series shall be issued
upon original issuance in whole
or in part in the form of one
or more Book-Entry Debentures
and, in such case, (a) the
Depositary with respect to such
Book-Entry Debenture or
Debentures; and (b) the
circumstances under which any
such Book-Entry Debenture may
be exchanged for Debentures
registered in the name of, and
any transfer of such Book-Entry
Debenture may be registered to,
a Person other than such
Depositary or its nominee,
if other than as set forth in
Section 3.5;
(xix) if the provisions of
Section 4.4 or 4.5 are
applicable to the Debentures of
such series;
(xx) provisions, if any,
granting special rights to the
Holders of Debentures of the
series upon the occurrence of
such events as may be
specified;
(xxi) any deletions from,
modifications of or additions
to the Events of Default or
covenants of the Company with
respect to Debentures of the
series, whether or not such
Events of Default or covenants
are consistent with the Events
of Default or covenants set
forth herein;
(xxii) whether and under what
conditions additional amounts
will be payable to Holders of
Debentures of the series
pursuant to Section 10.4;
(xxiii) the terms and
conditions, if any,
pursuant to which such
Debentures are secured;
(xxiv) the subordination
terms of the Debentures
of the series;
(xxv) the restrictions, if
any, limiting the transfer
of the Debentures; and
(xxvi) any other terms of the
series.
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<PAGE> 28
All Debentures of any one series and the Coupons appertaining to
any Bearer Debentures of such series shall be substantially identical except,
in the case of Registered Debentures, 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 in, or determined in the manner provided
in, the Officers' Certificate referred to above or in any such indenture
supplemental hereto. Not all Debentures of any one series need be issued at
the same time, and, unless otherwise provided, a series may be reopened for
issuances of additional Debentures of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting forth the
terms, or the manner of determining the terms, of the series.
Section 3.2 Denominations. Unless otherwise
provided as contemplated by Section 3.1 with respect to Debentures of any
series, any Registered Debentures of a series shall be issuable in
denominations of $1,000 and any integral multiple thereof and any Bearer
Debentures shall be issuable in the denomination of $5,000.
Section 3.3 Execution, Authentication, Delivery and Dating.
Debentures shall be signed on behalf of the Company by both (a) its Chairman of
the Board of Directors or any Vice Chairman of the Board of Directors or its
President or one of its Vice Presidents and (b) its Treasurer or one of its
Assistant Treasurers or its Secretary or one of its Assistant Secretaries,
under its corporate seal which may, but need not, be attested. The signature
of any of these officers on the Debentures may be manual or facsimile. Coupons
shall bear the facsimile signature of the Treasurer of the Company.
Debentures and Coupons 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.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Debentures of any series, together
with any Coupons appertaining thereto executed by the Company to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of Debentures of such series, and the Trustee in accordance with the
Company Order shall authenticate and make Debentures of any series available
for delivery; provided, however, that, in connection with its original
issuance, no Bearer Debenture of such series shall be mailed or otherwise
delivered to any location in the United States; and provided, further, that a
Bearer Debenture of such series may be delivered in connection with its
original issuance only if the Person entitled to receive such Bearer Debenture
shall have furnished a certificate in the form specified in the Debenture of
such series as to certain tax matters in respect of United States citizens,
dated no earlier than 15 days prior to the earlier of the date on which the
Bearer Debenture of such series is delivered and the date on which any
temporary global Debenture first becomes exchangeable for such Bearer Debenture
in accordance with the terms of such temporary global Debenture and this
Indenture. If any Debenture of such series shall be represented by a permanent
global Bearer Debenture of such series, then, for purposes of this Section and
Section 3.4, the notation of a beneficial owner's interest therein upon
original issuance of such Debenture or upon exchange of a portion of a
temporary global Debenture shall be deemed to be delivery in connection with
its original issuance of such beneficial owner's interest in such permanent
global Debenture. Except as permitted by Section 3.6, the Trustee shall not
authenticate and deliver any
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<PAGE> 29
Bearer Debenture of such series unless all appurtenant Coupons for interest
then matured have been detached and canceled.
If all the Debentures of any series are not to be issued at one
time and if the Board Resolution and indenture supplement establishing such
series shall so permit, such Company Order may set forth procedures acceptable
to the Trustee for the issuance of Debentures of such series and determining
the terms of such series, such as interest rate, maturity date, date of
issuance and date from which interest shall accrue.
If the forms or terms of the Debentures of any series, together
with any Coupons appertaining thereto, have been established in or pursuant to
one or more Board Resolutions as permitted by Sections 2.1 and 3.1, in
authenticating Debentures of such series, and accepting the additional
responsibilities under this Indenture in relation to such Debentures of such
series, the Trustee shall be entitled to receive, and (subject to Section 6.2)
shall be fully protected in relying upon, an Opinion of Counsel stating
(subject to reasonable and customary qualifications) substantially as follows:
(a) that such forms have been established in conformity with
the provisions of this Indenture;
(b) that such terms, or the manner of determining such terms,
have been established in conformity with the provisions of this Indenture;
(c) that Debentures of such series, together with any Coupons
appertaining thereto, 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 against the Company in accordance
with their terms, except, as enforcement may be limited by bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting the enforcement of creditors' rights generally and general
equity principles (regardless of whether enforceability is considered in a
proceeding at law or equity): and
(d) that the Company has complied with all laws and
requirements in respect of the execution and delivery by the Company of
Debentures of such series.
If such forms or terms have been so established, the Trustee shall
not be required to authenticate Debentures of such series if the issue of such
Debentures pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under such Debentures 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 two
preceding paragraphs, if all Debentures of any series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraphs at
or prior to the time of authentication of each Debenture of such series if such
documents are delivered at or prior to the authentication upon original
issuance of the first Debenture of such series to be issued. In authenticating
any Debentures of any series issued subsequent to the original issuance of the
first Debenture of such series, the Trustee may and shall be fully protected in
relying upon the Officers' Certificate delivered to the Trustee pursuant to
Section 3.1 or the Company Order and Opinion of Counsel otherwise required
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<PAGE> 30
pursuant to such preceding paragraphs that were delivered to the Trustee at or
prior to the authentication upon original issuance of the first Debenture of
such series to be issued.
Each Registered Debenture shall be dated the date of its
authentication; and each Bearer Debenture shall be dated as of the date of
original issuance of the first Debenture of such series to be issued.
No Debenture of such series or any Coupon appertaining thereto
shall be entitled to any benefit under this Indenture nor shall such Debenture
or Coupon be a valid obligation for any purpose unless there appears on the
Debenture or the Coupon appertaining to such Debenture, a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, 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 together with a written
statement (which need not comply with Section 1.2 and need not be accompanied
by an Opinion of Counsel) stating that such Debenture has never been issued and
sold by the Company, 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 of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and make available for delivery, temporary
Debentures of such series 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, in registered form or, if authorized, in bearer form with one or
more Coupons or without Coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Debentures or Coupons may determine, as evidenced by their execution of such
Debentures or Coupons. In the case of Debentures of any series issuable as
Bearer Debentures, such temporary Debentures may be in global form. A
temporary Bearer Debenture shall be delivered only in compliance with the
conditions set forth in Section 3.3.
Except in the case of temporary Debentures in global form issued
in a transaction exempt from registration under the Securities Act pursuant to
Regulation S thereunder (a "Regulation S Debenture") (which shall be exchanged
in accordance with the provisions of the following paragraphs), if temporary
Debentures of any series are issued, the Company will cause definitive
Debentures of such series to be prepared without unreasonable delay. After the
preparation of definitive Debentures of such series, the temporary Debentures
of such series shall be exchangeable for definitive Debentures of such series
upon surrender of the temporary Debentures of such series at the office or
agency of the Company maintained pursuant to Section 10.2 in a Place of Payment
for such series for the purpose of exchanges of Debentures of such series,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Debentures of any series (accompanied by any unmatured Coupons
appertaining thereto) the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
aggregate principal amount of definitive Debentures of such series and of like
tenor of authorized denominations; provided, however, that no definitive Bearer
Debenture shall be delivered in exchange for a temporary Registered Debenture.
Until so exchanged the temporary Debentures shall in all respects be entitled
to the same benefits under this Indenture as definitive Debentures.
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<PAGE> 31
If Regulation S temporary Debentures of any series are issued in
global form, any such temporary global Regulation S Debenture shall, unless
otherwise provided therein, be delivered to the London office of a depositary
or common depositary (the "Common Depositary"), for the benefit of Euro-clear
and Cedel S.A., for credit to the respective accounts of the beneficial owners
of such Debentures (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Regulation S Debenture (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Debentures of such series, in aggregate principal amount
equal to the principal amount of such temporary global Regulation S Debenture,
executed by the Company. On or after the Exchange Date such temporary global
Regulation S Debenture shall be surrendered by the Common Depositary to the
Trustee, as the Company's agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Debentures of such series without
charge to the Holder and the Trustee shall authenticate and make available for
delivery, in exchange for each portion of such temporary global Regulation S
Debenture, a like aggregate principal amount of definitive Debentures of such
series of authorized denominations and of like tenor as the portion of such
temporary global Regulation S Debenture to be exchanged; provided, however,
that, unless otherwise specified in such temporary global Regulation S
Debenture, upon such presentation by the Common Depositary, such temporary
global Regulation S Debenture is accompanied by a certificate dated the
Exchange Date or a subsequent date and signed by Cedel S.A. as to the portion
of such temporary global Regulation S Debenture held for its account then to be
exchanged, each in the form or in such form as shall be specified in such
Regulation S Debenture. The definitive Debentures of such series to be
delivered in exchange for any such temporary global Regulation S Debenture
shall be in bearer form, registered form, permanent global bearer form or
permanent global registered form, or any combination thereof, as specified as
contemplated by Section 3.1, and, if any combination thereof is so specified,
as requested by the beneficial owner thereof; provided, however, that
definitive Bearer Debentures of such series shall be delivered in exchange for
a portion of a temporary global Regulation S Debenture of such series only in
compliance with the requirements of Section 3.3.
Unless otherwise specified in such temporary global Regulation S
Debenture, the interest of a beneficial owner of Debentures of any series in a
temporary global Regulation S Debenture shall be exchanged for definitive
Debentures of such series and of like tenor following the Exchange Date when
the account holder instructs Euro-clear or Cedel S.A., as the case may be, to
request such exchange on the Holder's behalf and delivers to Euro-clear or
Cedel S.A., as the case may be, a certificate in such form as shall be
specified in the Regulation S Debenture of such series, dated no earlier than
15 days prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euro-clear and Cedel S.A., the Trustee, any
Authenticating Agent appointed for the Debentures of such series and each
Paying Agent. Unless otherwise specified in such temporary global Regulation S
Debenture, any such exchange shall be made free of charge to the beneficial
owners of such temporary global Regulation S Debenture, except that a Person
receiving definitive Debentures must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take
delivery of such definitive Debentures of such series in person at the offices
of Euro-clear or Cedel S.A. Definitive Debentures of such series in bearer
form to be delivered in exchange for any portion of a temporary global
Regulation S Debenture of such series shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Regulation S Debentures of any series shall in all respects be entitled to such
benefits under this Indenture as definitive Debentures of such series and of
like tenor authenticated and delivered hereunder, except that, unless otherwise
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<PAGE> 32
specified as contemplated by Section 3.1, interest payable on a temporary
global Regulation S Debenture on an Interest Payment Date for Debentures of
such series occurring prior to the applicable Exchange Date shall be payable to
Euro-clear and Cedel S.A. on such Interest Payment Date upon delivery by
Euro-clear and Cedel S.A. to the Trustee of a certificate or certificates in
such form as shall be specified in the Debenture of such series, for credit
without further interest on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such
temporary global Regulation S Debenture on such Interest Payment Date and who
have each delivered to Euro-clear or Cedel S.A., as the case may be, a
certificate in such form as shall be specified in the Debenture of such series.
Any interest so received by Euro-clear and Cedel S.A. and not paid as herein
provided shall be returned to the Trustee immediately prior to the expiration
of two years after such Interest Payment Date in order to be repaid to the
Company in accordance with Section 10.3.
Section 3.5 Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 10.2 a register (the
"Debenture Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Registered
Debentures and the registration of transfers of Registered Debentures. The
Trustee is hereby appointed "Debenture Registrar" for the purpose of
registering Registered Debentures and transfers of Registered Debentures as
herein provided.
Upon due surrender for registration of transfer of any Registered
Debenture of any series at the office or agency of the Company maintained
pursuant to Section 10.2 for such purpose in a Place of Payment for such
series, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee or
transferees, one or more new Registered Debentures of the such series of any
authorized denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Registered Debentures of any series
may be exchanged for other Registered Debentures of such series of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Debentures to be exchanged at any such office or agency.
Whenever any Debentures are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and make available for delivery,
the Debentures which the Holder making the exchange is entitled to receive.
Bearer Debentures will not be issued in exchange for Registered Debentures.
At the option of the Holder, Bearer Debentures of any series may
be exchanged for Registered Debentures of such series of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Debentures of such series to be exchanged at any such
office or agency, with all unmatured Coupons, and all matured Coupons in
default appertaining thereto. If the Holder of a Bearer Debenture of such
series is unable to produce any such unmatured Coupon or Coupons or matured
Coupon or Coupons in default, such exchange may be effected if the Bearer
Debentures of such series are accompanied by payment in funds acceptable to the
Company in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by
the Company and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Debentures of such series shall
surrender to any Paying Agent any such missing Coupon in respect of which such
a payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that, except as otherwise provided
in Section 10.2, interest represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
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<PAGE> 33
Debenture of any series is surrendered at any such office or agency in exchange
for a Registered Debenture of such series and of like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, the Bearer Debenture of such series shall be surrendered without the
Coupon relating to such Interest Payment Date or proposed date for payment, as
the case may be, and interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of the Registered Debenture of such series issued
in exchange for such Bearer Debenture, but will be payable only to the Holder
of such Coupon when due in accordance with the provisions of this Indenture.
Whenever any Debentures of any series are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, the Debentures of such series which the Holder
making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 3.1, any permanent global Regulation S Debenture of any
series shall be exchangeable only as provided in this paragraph. If the
beneficial owners of interests in a permanent global Regulation S Debenture are
entitled to exchange such interests for Debentures of such series and of
principal amount and like tenor of another authorized form and denomination, as
specified as contemplated by Section 3.1, then without unnecessary delay but in
any event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Debentures of
such series in aggregate principal amount equal to the principal amount of such
permanent global Regulation S Debenture executed by the Company. On or after
the earliest date on which such interests may be so exchanged, such permanent
global Regulation S Debenture of any series shall be surrendered by the Common
Depositary or such other depositary or Common Depositary as shall be specified
in the Company Order with respect thereto to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or from time to time in part,
for definitive Debentures of such series without charge and the Trustee shall
authenticate and make available for delivery, in exchange for each portion of
such permanent global Regulation S Debenture, a like aggregate principal amount
of definitive Debentures of such series of authorized denominations and of like
tenor as the portion of such permanent global Debenture of such series to be
exchanged which, unless the Debentures of such series are not issuable both as
Bearer Debentures and as Registered Debentures of such series, as specified as
contemplated by Section 3.1, shall be in the form of Bearer Debentures or
Registered Debentures of such series, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that no Bearer
Debenture delivered in exchange for a portion of a permanent global Debenture
of such series shall be mailed or otherwise delivered to any location in the
United States. If a Registered Debenture of such series is issued in exchange
for any portion of a permanent global Debenture of such series after the close
of business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Debenture of
such series, but will be payable on such Interest Payment Date or proposed date
for payment, as the case may be, only to the Person to whom interest in respect
of such portion of such permanent global Debenture of such series is payable in
accordance with the provisions of this Indenture.
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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 Registered Debenture presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Trustee or any transfer agent) be duly endorsed, or be accompanied by a
written instrument of transfer, in form satisfactory to the Company and the
Debenture Registrar or any transfer agent, 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 (i) to issue, register the
transfer of or exchange Debentures of any series during a period beginning at
the opening of business 15 days before any selection of Debentures of such
series to be redeemed and ending at the close of business on (A) if Debentures
of such series are issuable only as Registered Debentures, the day of the
mailing of the relevant notice of redemption and (B) if Debenture of such
series are issuable as Bearer Debentures, the day of the first publication of
the relevant notice of redemption or, if Debentures of such series are also
issuable as Registered Debentures and there is no publication, the mailing of
the relevant notice of redemption, (ii) to register the transfer of or exchange
any Registered Debenture so selected for redemption, in whole or in part,
except the unredeemed portion of any Debenture being redeemed in part, or (iii)
to exchange any Bearer Debenture so selected for redemption except that such a
Bearer Debenture may be exchanged for a Registered Debenture of such series and
like tenor, provided that such Registered Debenture shall be simultaneously
surrendered for redemption.
Notwithstanding the foregoing and except as otherwise specified or
contemplated by Section 3.1, any Book-Entry Debenture shall be exchangeable
pursuant to this Section 3.5 or Sections 3.4, 9.6 and 11.7 for Debentures
registered in the name of, and a transfer of a Book-Entry Debenture of any
series may be registered to, any Person other than the Depositary for such
Debenture or its nominee only if (i) such Depositary notifies the Company that
it is unwilling or unable to continue as Depositary for such Book-Entry
Debenture or if at any time such Depositary ceases to be a clearing agency
registered under the Exchange Act, (ii) the Company executes and delivers to
the Trustee a Company Order that such Book-Entry Debenture shall be so
exchangeable and the transfer thereof so registerable or (iii) there shall have
occurred and be continuing an Event of Default, or an event which after notice
or lapse of time would be an Event of Default, with respect to the Debentures
of such series. Upon the occurrence in respect of any Book-Entry Debenture of
any series of any one or more of the conditions specified in clauses (i), (ii)
or (iii) of the preceding sentence or such other conditions as may be specified
as contemplated by Section 3.1 for such series, such Book-Entry Debenture may
be exchanged for Debentures registered in the names of, and the transfer of
such Book-Entry Debenture may be registered to, such Persons (including Persons
other than the Depositary with respect to such series and its nominees) as such
Depositary shall direct. Notwithstanding any other provision of this
Indenture, any Debenture authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, any Book-Entry Debenture shall
also be a Book-Entry Debenture and shall bear the legend specified in Section
2.4 except for any Debenture authenticated and delivered in exchange for, or
upon registration or transfer of, any Book-Entry Debenture pursuant to the
preceding sentence.
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Notwithstanding anything in this Indenture or in the terms of a
Debenture to the contrary, the exchange of Bearer Debentures for Registered
Debentures will be subject to satisfaction of the provisions of the United
States federal income tax laws in effect at the time of such exchange. None of
the Company, the Trustee or any Authenticating Agent of the Company or the
Trustee (any of which, other than the Company, shall rely on an Officers'
Certificate and an Opinion of Counsel) shall be required to exchange any Bearer
Debenture for a Registered Debenture if as a result thereof and in the
Company's reasonable judgment, the Company would incur adverse consequences
under then applicable United States federal income tax laws.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Debentures
and Coupons. If any mutilated Debenture of any series or a Debenture of any
series with a mutilated Coupon appertaining thereto is surrendered to the
Trustee, the Company shall execute and upon its request the Trustee shall
authenticate and make available for delivery in exchange therefor a new
Debenture of the same series and of principal amount and like tenor and bearing
a number not contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appertaining to the surrendered Debenture and such mutilated
Debenture or a Debenture with a mutilated Coupon, if any, shall be canceled by
the Trustee in accordance with the Indenture.
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 of any series or Coupon appertaining thereto and (ii) such security
or indemnity as may be required by them to hold each of them harmless, then, in
the absence of notice to the Company or the Trustee that such Debenture or
Coupon has been acquired by a bona fide purchaser, the Company shall, subject
to the following paragraph, execute, and upon its request the Trustee shall
authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen Debenture or in exchange for the Debenture to which a destroyed,
lost or stolen Coupon appertains (with all appurtenant Coupons not destroyed,
lost or stolen), a new Debenture of such series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding, with Coupons
corresponding to the Coupons, if any, appertaining to such destroyed, lost or
stolen Debenture or to the Debenture to which such destroyed, lost or stolen
Coupon appertains.
In case any such mutilated, destroyed, lost or stolen Debenture or
Coupon appertaining thereto 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 or Coupon; provided, however, that principal of and any premium and
interest on Bearer Debentures shall, except as otherwise provided in Section
10.2, be payable only at an office or agency located outside the United States.
Upon the issuance of any new Debenture under this Section, the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debenture of any series, with any Coupons appertaining
thereto, issued pursuant to this Section in lieu of any destroyed, lost or
stolen Debenture or in exchange for a Debenture to which a destroyed, lost or
stolen Coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Debenture and any Coupons appertaining thereto, or the destroyed, lost or
stolen Coupon shall be at any time enforceable by anyone, and any such new
Debenture and Coupons, if any, shall be entitled to all the benefits of this
Indenture equally and
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proportionately with any and all other Debentures of such series and their
Coupons appertaining thereto, if any, 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 or
Coupons.
Section 3.7 Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.1 with respect to any
series of Debentures, interest on any Registered 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
for such interest.
Unless otherwise provided as contemplated by Section 3.1 with
respect to any series of Debentures, any interest on any Registered Debenture
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) and (b)
below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Debentures of such
series (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 Registered Debenture 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 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 Registered Debentures of such series at
the address of such Holder as it appears in the Debenture Register, not
less than 10 days prior to such Special Record Date. The Trustee may, in
its discretion, in the name and at the expense of the Company, cause a
similar notice to be published at least once in an Authorized Newspaper in
each Place of Payment, but such publication shall not be a condition
precedent to the establishment of 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 Registered Debentures of such series (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); and
(b) The Company may make payment of any Defaulted Interest on
the Registered Debentures of any series in any other lawful manner not
inconsistent with the requirements of any
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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.
Except as otherwise specified as contemplated by Section 3.1, in
the case of any Debenture which is converted into Common Stock of the Company
after any Regular Record Date and on or prior to the next succeeding Interest
Payment Date (other than any Debenture whose Maturity is prior to such Interest
Payment Date), interest whose Stated Maturity is on such Interest Payment Date
shall be payable on such Interest Payment Date notwithstanding such conversion,
and such interest (whether or not punctually paid or duly provided for) shall
be paid to the Person in whose name that Debenture (or one or more Predecessor
Debentures) is registered at the close of business on such Regular Record Date.
However, if a Redemption Date falls between a Regular Record Date and the
subsequent Interest Payment Date, the amount of such payment shall include
accumulated and unpaid interest accrued to, but excluding, such Redemption Date
and shall be made on such Redemption Date. Except as otherwise expressly
provided in the first two sentences of this paragraph, 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.
Section 3.8 Persons Deemed Owners. Prior to due presentment
of a Registered 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 Registered Debenture is registered as the owner of such
Registered Debenture for the purpose of receiving payment of principal of (and
premium, if any) 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
shall 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.
Title to any Bearer Debenture and any Coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Debenture and the bearer of
any Coupon as the absolute owner of such Debenture or Coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Debenture or Coupon shall be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Section 3.9 Cancellation. All Debentures and Coupons
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. All Registered Debentures
and matured Coupons so delivered shall be promptly canceled by the Trustee.
All Bearer Debentures and unmatured Coupons so delivered shall be canceled.
All Bearer Debentures and unmatured Coupons held by the Trustee pending such
cancellation or reissuance shall be deemed to be delivered for cancellation for
all purposes of this Indenture and the Debentures. 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
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which the Company has not issued and sold, and all Debentures so delivered
shall be promptly canceled by the Trustee. No Debentures shall be
authenticated in lieu of or in exchange for any Debentures canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Debentures and Coupons held by the Trustee shall be destroyed and certification
of their destruction delivered to the Company unless by a Company Order the
Company shall direct that cancelled Debentures be returned to it.
Notwithstanding the foregoing, with respect to any Book-Entry
Debenture, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by a Depositary or impair, as between a
Depositary and holders of beneficial interests in any Book-Entry Debenture, the
operation of customary practices governing the exercise of the rights of the
Depositary (or its nominee) as Holder of such Book-Entry Debenture.
Section 3.10 Computation of Interest. Except as otherwise
specified as contemplated by Section 3.1 for Debentures of any series, interest
on the Debentures of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.
Section 3.11 Electronic Debenture Issuance. The Debentures
may, pursuant to a Board Resolution and Officers' Certificate complying with
Section 3.1 hereof, be issued by means of an electronic issuance system. Any
such Debenture issuance instructions may specify the name, address and taxpayer
identification number of the Holder, the principal amount and Maturity of the
Debenture, the interest rate to be borne by the Debenture and any other terms
not inconsistent with such Board Resolution and Officers' Certificate. Nothing
in this Section 3.11 shall be construed as prohibiting the Company from issuing
Debentures by any means not inconsistent with the provisions of this Indenture.
Section 3.12 CUSIP Numbers. The Company in issuing the
Debentures may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that the Trustee makes no
representation with respect to and is not responsible for the correctness or
accuracy of such 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 numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture. Except
as otherwise specified as contemplated by Section 3.1, this Indenture shall
upon Company Request cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of Debentures herein expressly
provided for, and any right to receive additional amounts, as provided in
Section 10.4), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when:
(a) either
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(1) all Debentures theretofore authenticated and
delivered and all Coupons, if any, appertaining thereto (other
than (i) Coupons appertaining to Bearer Debentures surrendered for
exchange for Registered Debentures and maturing after such
exchange, whose surrender is not required or has been waived as
provided in Section 3.5, (ii) Debentures and Coupons which have
been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 3.6, (iii) Coupons appertaining to
Debentures called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in
Section 11.6, and (iv) Debentures and Coupons 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 canceled or for cancellation; or
(2) all such Debentures and, in the case of (i) or
(ii) below, any Coupons appertaining thereto not theretofore
delivered to the Trustee canceled or for cancellation,
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) 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 (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose, an amount sufficient to pay and
discharge the entire indebtedness on such Debentures and Coupons
not theretofore delivered to the Trustee canceled or for
cancellation, for principal (and premium, if any) and any 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; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 6.6, the
obligations of the Company to any Authenticating Agent under Section 6.13 and,
if money shall have been deposited with the Trustee pursuant to clause (a)(2)
of this Section, the obligations of the Trustee under Section 4.2 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 and U.S. Government
Obligations deposited with the Trustee pursuant to Section 4.1 or 4.3 and all
money received by the Trustee in respect of such U.S. Government Obligations
shall be held in trust and applied by it, in accordance with the provisions of
the Debentures,
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the Coupons 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
premium, if any) and any interest for whose payment such money and U.S.
Government Obligations has been deposited with or received by the Trustee, but
such money need not be segregated from other funds held in trust by the Trustee
except to the extent required by law. Money deposited pursuant to this Section
not in violation of this Indenture shall not be subject to claims of the
holders of Senior Indebtedness under Article XV.
Section 4.3 Company's Option to Effect Defeasance or Covenant
Defeasance. If applicable to Debentures of any series, the Company may elect,
at its option at any time, to have Section 4.4 or Section 4.5 applied to any
such series of Debentures or any Debentures of such series, as the case may be,
designated pursuant to Section 3.1 as being defeasible pursuant to such Section
4.4 or 4.5, in accordance with any applicable requirements provided pursuant to
Section 3.1 and upon compliance with the conditions set forth below in this
Article. Any such election shall be evidenced by a Board Resolution or in
another manner specified as contemplated by Section 3.1 for such Debentures.
Section 4.4 Discharge and Defeasance. If this Section 4.4 is
specified, as contemplated by Section 3.1, to be applicable to Debentures of
any series, then notwithstanding Section 4.1 and upon compliance with the
applicable conditions set forth in 4.6: (1) the Company shall be deemed to have
paid and discharged the entire indebtedness on all the Outstanding Debentures
of any such series ("Defeasance"); and (2) the provisions of this Indenture as
it relates to such Outstanding Debentures shall no longer be in effect (except
as to the rights of Holders of Debentures of such series to receive, solely
from the trust fund described in Section 4.6, payment of (a) the principal of
(and premium, if any) and any installment of principal of (and premium, if any)
or interest on Debentures of such series on the Stated Maturity of such
principal (and premium, if any) or installment of principal (and premium, if
any) or interest or upon optional redemption and/or (b) any mandatory sinking
fund payments or analogous payments applicable to the Debentures of such series
on that day on which such payments are due and payable in accordance with the
terms of the Indenture and of Debentures of such series, the Company's
obligations with respect to Debentures of such series under Sections 3.4, 3.5,
3.6, 10.2, 10.3, and 10.4 and the rights, powers, trusts, duties and immunities
of the Trustee hereunder, including those under Section 6.8 hereof;
Section 4.5 Covenant Defeasance. If this Section 4.5 is
specified, as contemplated by Section 3.1, to be applicable to any series of
Debentures or any Debentures of such series, as the case may be, (a) the
Company shall be released from its obligations under Sections 10.4 through
10.5, inclusive, and any covenants provided pursuant to Section 3.1(u) or
9.1(b) for the benefit of the Holders of Debentures of such series that
pursuant to the terms of such Debentures of such series are defeasible pursuant
to this Section 4.5 and (b) the occurrence of any event specified in Sections
5.1(d) (with respect to any of Sections 10.4 through 10.5, inclusive, and any
such covenants provided pursuant to Section 3.1(u) or 9.1(b) shall be deemed
not to be or result in an Event of Default, in each case with respect to
Debentures of such series as provided in this Section on and after the date the
conditions set forth in Section 4.6 are satisfied (hereinafter called "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means that, with
respect to Debentures 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 specified Section (to the extent so specified in the case of
Section 5.1(d)), whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Debentures shall be unaffected thereby.
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Section 4.6 Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to the application of
Section 4.4 or Section 4.5 to any applicable series of Debentures or any
Debentures of such series, as the case may be.
(a) either
(1) with respect to all Outstanding Debentures of
such series or such Debentures of such Series, as the case may
be, with reference to this Section 4.6, the Company has deposited
or caused to be deposited with the Trustee irrevocably (but
subject to the provisions of Section 4.2 and the last paragraph of
Section 10.3), as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders
of the Debentures of such series, (i) lawful money of the United
States in an amount, or (ii) U.S. Government Obligations which
through the payment of interest and principal in respect thereof
in accordance with their terms will provide not later than the
opening of business on the due dates of any payment referred to in
clause (i) or (ii) of this subparagraph (a)(1) lawful money of the
United States in an amount, or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge (A) the principal of (and premium, if any) and each
installment of principal (and premium, if any) and interest on
such Debentures the Stated Maturity of such principal or
installment of principal or interest or upon optional redemption
and (B) any mandatory sinking fund payments or analogous payments
applicable to the Debentures of such series on the day on which
such payments are due and payable in accordance with the terms of
this Indenture and of the Debentures of such series; or
(2) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 3.1, to be applicable to the Debentures of
such series;
(b) the Company has paid or caused to be paid all other sums
payable with respect to the Debentures of such series;
(c) such deposit for the benefit of Holders of Debentures of
such series will not result in a breach or violation of, or constitute a
default under, this Indenture or any other agreement or instrument to which
the Company is a party or by which it is bound;
(d) no Event of Default or event which with the giving of
notice or lapse of time, or both, would become an Event of Default with
respect to the Debentures of such series shall have occurred and be
continuing on the date of such deposit and no Event of Default under
Section 5.1(e) or Section 5.1(f) or event which with the giving of notice
or lapse of time, or both, would become an Event of Default under Section
5.1(e) or Section 5.1(f) shall have occurred and be continuing on the 91st
day after such date;
(e) in the event of an election to have Section 4.4 apply to
the Debentures of any series, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling, or (ii)
since the date of this Indenture there has been a change in applicable
federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of
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Debentures of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amount and
in the same manner and at the same times as would have been the case if
such deposit, defeasance and discharge had not occurred;
(f) in the event of an election to have Section 4.5 apply to
Debentures of any series, the Company shall have delivered to the Trustee
an Opinion of Counsel, to the effect that the Holders of Debentures of such
series will not recognize gain or loss for federal income tax purposes as a
result of the deposit and Covenant Defeasance to be effected with respect
to the Debentures of such series and will be subject to United States
federal income tax on the same amount, in the same manner and at the same
times as would be the case if such deposit and Covenant Defeasance were not
to occur;
(g) if the Debentures of such series are then listed on any
domestic or foreign securities exchange, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that such deposit,
defeasance and discharge will not cause the Debentures of such series to be
delisted;
(h) no default in the payment of the principal (and premium,
if any) or any interest on any Senior Indebtedness beyond any applicable
grace period shall have occurred and be continuing;
(i) no other default with respect to any Senior Indebtedness
shall have occurred and be continuing and shall have resulted in the
acceleration of such Senior Indebtedness; and
(j) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the Defeasance or Covenant
Defeasance with respect to Debentures of such series have been complied
with and an Opinion of Counsel to the effect that either (i) as a result of
such deposit and the related exercise of the Company's option under this
Article, registration is not required under the Investment Company Act of
1940, as amended, by the Company, the trust funds representing such deposit
or the Trustee or (ii) all necessary registrations under said Act have been
effected.
Any deposits with the Trustee referred to in Section 4.6(a)(1)
above shall be irrevocable and shall be made under the terms of an escrow/trust
agreement in form and substance satisfactory to the Trustee. If any
Outstanding Debentures of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable escrow
trust agreement shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Upon Defeasance with respect to all the Debentures of any series,
the terms and conditions of the Debentures of such series, including the terms
and conditions with respect thereto set forth in this Indenture, shall no
longer be binding upon, or applicable to, the Company; provided that the
Company shall not be discharged from any payment obligations in respect of
Debentures of such series which are deemed not to be Outstanding under clause
(iii) of the definition thereof if such obligations continue to be valid
obligations of the Company under applicable law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
4.6) of the Company under this Indenture with
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respect to the Debentures of any series, the obligations of the Company to the
Trustee under Section 6.6, and the obligations of the Trustee under Section 4.2
and the last paragraph of Section 10.3 shall survive with respect the
Debentures of such series.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in this
Section 4.6 with respect to Debentures of any series which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect to
Debentures of such series.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to this Section 4.6 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of Outstanding
Debentures.
ARTICLE V
REMEDIES
Section 5.1 Events of Default. "Event of Default", wherever
used herein with respect to Debentures of any series, unless otherwise provided
in the applicable supplemental indenture, means any one or more 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 or any
additional amounts payable in respect of any Debenture of such 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 subordination
provisions set forth in Article XV hereof); provided, however, that a valid
extension of an interest payment period by the Company in accordance with
the terms of 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 Debenture of such series 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 that series (whether or not such payment is
prohibited by the subordination provisions set forth in Article XV hereof);
provided, however, that a valid extension of the maturity of the Debentures
of such series in accordance with the terms of any indenture supplemental
hereto shall not constitute a default in the payment of principal or
premium, if any; or
(c) if the Debentures of such series are convertible or
exchangeable into or for shares of Common Stock of the Company or other
securities, cash or other property pursuant to any supplemental indenture,
Board Resolution or other instrument authorizing Debentures of such series,
failure by the Company to convert such Debentures (whether or not
conversion or exchange is prohibited by the subordination provisions set
forth in Article XV); or
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(d) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a 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 any series of Debentures other
than such series), and continuance of such default or breach for a period
of 90 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 aggregate principal amount of the Outstanding Debentures
of such 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
(e) the entry by a court having jurisdiction in the premises
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance
of any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(f) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated as bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable federal or state law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidation, assignee, trustee, sequestrator or
similar official of the Company or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors; or
(g) any other Event of Default provided with respect to
Debentures of such series.
Section 5.2 Acceleration of Maturity; Rescission and
Annulment. If an Event of Default described in clause (a), (b), (c), (d) or
(g) (if the Event of Default under clause (d) is with respect to less than all
series of Debentures then Outstanding) of Section 5.1 above occurs and is
continuing, then, and in each and every such case, unless the principal of all
of the Debentures of such series shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Debentures of such series then Outstanding hereunder (each such
series voting as a separate class), by notice in writing to the Company (and to
the Trustee if given by the Holders of Debentures of such series), may declare
the entire principal (or, if the Debentures of such series are Original Issue
Discount Debentures, such portion of the principal amount as may be specified
in the terms of such series) of all Debentures of such series and the interest
accrued thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable. If an Event of
Default described in clause (d) (if the Event of Default under clause (d)
relates to all series of Debentures then Outstanding), (e) or (f) of Section
5.1 occurs and is continuing, then and in each and every such case, unless the
principal of all the Debentures of all series shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of all the Debentures of all series then Outstanding hereunder
(treated as one class), by notice in writing to the
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Company (and to the Trustee if given by Holders of Debentures), may declare the
entire principal (or, if any Debentures are Original Issue Discount Debentures
such portion of the principal as may be specified in the terms thereof) of all
Debentures of all series then Outstanding and interest accrued thereon, if any,
to be due and payable immediately, and upon any such declaration the same shall
become immediately due and payable.
The foregoing provisions, however, are subject to the condition
that if, at any time after the principal (or, if any Debentures are Original
Issue Discount Debentures, such portion of the principal as may be specified in
the terms thereof) of the Debentures of any series (or of all the Debentures of
all series, as the case may be) then Outstanding shall have been so declared
due and payable, and before any judgment or decree for the payment of such
moneys shall have been obtained or entered as hereinafter provided, the Company
shall pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Debentures of such series (or of all
Debentures of all series, as the case may be) and the principal of (and
premium, if any on) Debentures of such series (or of all Debentures of all
series, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments
of interest, at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Debentures) specified in the Debentures of
such series (or at the respective rates of interest or Yields to Maturity of
all Debentures of all series, as the case may be) to the date of such payment
or deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee, and each predecessor Trustee, their respective
agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith, and if any and all Events of Default under
the Indenture, other than the non-payment of the principal of Debentures of
such series (or, if any Debentures are Original Issue Discount Debentures, such
portion of the principal as may be specified in the terms thereof) which shall
have become due by acceleration, shall have been cured, waived or otherwise
remedied as provided herein -- then and in every such case the Holders of a
majority in aggregate principal amount of all the Debentures of such series,
each series voting as a separate class (or of all Debentures of all series, as
the case may be, voting as a single class), then Outstanding, by written notice
to the Company and to the Trustee, may waive all such defaults with respect to
the Debentures of such series (or with respect to all Debentures of all series,
as the case may be) and rescind and annul such declaration and its consequence,
but no such waiver or rescission and annulment shall extend to or shall affect
any subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right with
respect to Debentures of such series under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined adversely to
the Trustee, then and in every such case the Company and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company and the Trustee shall continue as
though no such proceedings had been taken.
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 of any series, or any payment required by any sinking or analogous
fund established with respect to Debentures of such series as and when the same
shall have become due and payable and such default continues for a period of 30
days, or
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(b) default is made in the payment of the principal of (or
premium, if any, on) any Debenture of any series when the same shall have
become due and payable, whether upon maturity of the Debentures of such series
or upon redemption or upon declaration or otherwise,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of Debentures of such series and any Coupons appertaining thereto, the
whole amount then due and payable on such Debentures of such series and Coupons
for principal and any premium and interest and, to the extent that payment of
such interest shall be legally enforceable under applicable law, interest on
any overdue principal and on the premium, if any, and overdue interest, at the
rate or rates prescribed therefor in Debentures of such series; 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 under Section
6.6.
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 Debentures of
such series 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 Debentures of such series, wherever situated.
If an Event of Default with respect to Debentures 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 Debentures of such
series and any Coupons appertaining thereto by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, either at law or in equity or in bankruptcy or otherwise whether
for the specific enforcement of any covenant or agreement in this Indenture or
in aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
Section 5.4 Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Debentures of
any series or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Debentures
of such series shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(a) to file and prove a claim for the whole amount of
principal and any premium and interest owing and unpaid in respect of the
Debentures of any series and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders of Debentures of such series and Coupons allowed in such
judicial proceeding, and
(b) 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 of Debentures of such series and Coupons
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appertaining thereto to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders of Debentures of such series and Coupons appertaining thereto, 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 6.6.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder of a
Debenture of any series or any Coupon appertaining thereto, any plan of
reorganization, arrangement, adjustment or composition affecting the Debentures
of such series or Coupons appertaining thereto or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder of Debentures of any series or Coupon appertaining thereto in any such
proceeding.
Section 5.5 Trustee May Enforce Claims Without Possession of
Debentures or Coupons. All rights of action and claims under this Indenture or
under any of the terms established with respect to the Debentures of any series
or Coupons appertaining thereto may be prosecuted and enforced by the Trustee
without the possession of any of the Debentures of such series or Coupons
appertaining thereto 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 due
under Section 6.6, be for the ratable benefit of the Holders of the Debentures
of such series and Coupons appertaining thereto 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 with respect to Debentures of
any series 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 of
such series or any Coupons appertaining thereto, or both, as the case may be,
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 6.6;
SECOND: To the payment of all Senior Indebtedness of the Company
and to the extent required by Article XV:
THIRD: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Debentures of such series
and Coupons appertaining thereto 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
Debentures of such series and Coupons appertaining thereto for principal
and any premium and interest, respectively; and
FOURTH: To the payment of the remainder, if any, to the Company.
Section 5.7 Limitation on Suits. No Holder of any
Debenture of any series or any Coupons appertaining thereto 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;
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(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Debentures of
such series and of the continuance thereof with respect to the Debentures
of such series specifying such Event of Default, as hereinbefore provided;
(b) the Holders of not less than 25% in principal amount of
the Outstanding Debentures of such 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 shall 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 of such 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, but subject to Article XV of this Indenture, the Holder of any
Debenture of any series or Coupon appertaining thereto shall have the right,
which is absolute and unconditional, to receive payment of the principal of and
any premium and (subject to Section 3.7) interest on Debentures of such series,
and any additional amounts contemplated by Section 10.4 in respect of
Debentures of such series or payment of any Coupons appertaining thereto on the
Stated Maturity or Maturities expressed in Debentures of such series or Coupons
appertaining thereto (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 of Debentures of any series or Coupon appertaining
thereto 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 of Debentures of such series and any
Coupons appertaining thereto 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 or Coupons in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Debentures or Coupons 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
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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 Debenture or Coupon to exercise
any right or remedy accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Subject to the
provisions of Section 5.7, every right and remedy given by this Article or by
law to the Trustee or to the Holders of Debentures or Coupons may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders of Debentures or Coupons, as the case may be.
Section 5.12 Control by Holders of Debentures. The Holders of
a majority in aggregate principal amount of the Outstanding Debentures 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 Debentures of such
series, provided that,
(a) such direction shall not be in conflict with any rule of
law or with this Indenture or expose the Trustee to personal liability, or
be unduly prejudicial to Holders of Debentures not joining therein, and
(b) the Trustee may take any other action deemed proper by the
Trustee; provided, however, that such direction shall not be in conflict
with any rule of law or with this Indenture or be unduly prejudicial to the
rights of Holders of Debentures of any other series at the time
Outstanding. Subject to the provisions of Section 6.2, the Trustee shall
have the right to decline to follow any such direction if the trustee in
good faith shall, by a Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed would involve the Trustee in
personal liability.
Section 5.13 Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Debentures of any series
may on behalf of the Holders of all the Debentures of such series and any
Coupons appertaining thereto waive any past default hereunder with respect to
the Debentures of such series and its consequences, except a default
(a) in the payment of the principal of (or premium, if any) or
any interest on any Debenture of such series as and when the same shall
become due by the terms of Debentures of such series 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 Section 5.2), or
(b) in the covenants contained in Section 10.4, or
(c) 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 of such series affected.
Upon any such waiver, the default covered thereby shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture and the Company, the Trustee and the
holders of the Debentures of such series shall be restored to their
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former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
Section 5.14 Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Debenture or Coupon by his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by
the Company, to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Debentures of any series, or to any suit
instituted by any Holder of any Debenture or Coupon for the enforcement of the
payment of the principal of or any premium or interest on such Debenture or the
payment of any Coupon on or after the Stated Maturity or Maturities expressed
in such Debenture or Coupon (or, in the case of redemption, on or after the
Redemption Date).
Section 5.15 Waiver of 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 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 Duties and Responsibilities of the Trustee;
During Default; Prior to Default. With respect to the Holders of any series of
Debentures issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Debentures of a such series and after the curing
or waiving of all Events of Default which may have occurred with respect to
Debentures of such series, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied covenants
or obligations shall be read into this Indenture against the Trustee. In case
an Event of Default with respect to the Debentures of such series has occurred
(which has not been cured or waived), the Trustee shall exercise with respect
to the Debentures of such series such of the rights and powers vested in it by
this Indenture, and shall use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that:
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(a) prior to the occurrence of an Event of Default with
respect to the Debentures of any series and after the curing or waiving of
all such Events of Default with respect to the Debentures of such series
which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Debentures of such series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or mobilizations shall be read
into this Indenture against the Trustee: and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon any statements, certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture: but
in the case of any such statement, certificates or opinions which
by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements
of this Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent
facts; and
(c) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders pursuant to Section
5.12 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or Power conferred upon the Trustee, under this
Indenture.
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.
Section 6.2 Certain Rights of Trustee. Subject to the
provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, Coupon, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
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Trustee (unless other evidence be herein specifically prescribed) may, in
the absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection 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 of Debentures of any series or any Coupons
appertaining thereto 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, Coupon, 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, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(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 shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture.
Section 6.3 Not Responsible for Recitals or Issuance of
Debentures. The recitals contained herein and in the Debentures (except the
Trustee's certificates of authentication) and in any Coupons shall be taken as
the statements of the Company, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of any
Debentures or Coupons. 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 6.4 May Hold Debentures. The Trustee, any
Authenticating Agent, any Paying Agent, any Debenture Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Debentures and Coupons and, subject to Sections 6.9 and
6.11, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Debenture Registrar or
such other agent.
Section 6.5 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 in writing with the
Company.
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Section 6.6 Compensation and Reimbursement. The Company
agrees:
(a) to pay to the Trustee or any successor Trustee from time
to time such compensation as shall be agreed in writing between the Company
and the Trustee 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 or any predecessor 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
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 and any predecessor Trustee for,
and to hold it harmless against, any and all loss, damage, claim, liability
or expense, including taxes (other than taxes based on the income of the
Trustee) 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.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(e) or Section 5.1(f), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar laws.
As security for the performance of the obligations of the Company
under this Section 6.6, the Trustee shall have a lien prior to the Debentures
on all property and funds held or collected by it hereunder for any amount
owing it or any predecessor Trustee pursuant to this Section 6.6, except with
respect to funds held in trust for the payment of the principal of (and
premium, if any) or interest on particular Debentures. The obligations of the
Company under this Section 6.6 shall not be subordinated to the payment of
Senior Indebtedness pursuant to Article Fifteen.
The provisions of this Section 6.6 shall survive the termination
of this Indenture.
Section 6.7 Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.8.
(b) The Trustee may resign at any time with respect to the
Debentures 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 6.8 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 of such series.
(c) The Trustee may be removed at any time with respect to the
Debentures of any series by Act of the Holders of a majority in principal
amount of the Outstanding Debentures of such series delivered to the Trustee
and to the Company. If the instrument of acceptance by a successor Trustee
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required by Section 6.8 shall not have been delivered to the Trustee within 30
days after the delivery of such Act of removal, the Trustee being removed may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Debentures of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
310(b) of the Trust Indenture Act after written request therefor by the
Company or by any Holder of a Debenture who has been a bona fide Holder of
a Debenture for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 6.10 and Section 310(a) of the Trust Indenture Act and shall fail
to resign after written request therefor by the Company or by any such
Holder of a Debenture who has been a bona fide Holder of Debenture for at
least six months, or
(3) the Trustee shall become incapable of acting or
shall be adjudged 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, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Debentures, or (ii) subject to Section 5.14 any
Holder of a Debenture 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.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Debentures of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Debentures of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the Debentures
of one or more or all of such series and that at any time there shall be only
one Trustee with respect to the Debentures of any particular series) and shall
comply with the applicable requirements of Section 6.8. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Debentures of any series shall
be appointed by Act of the Holders of a majority in principal amount of
Outstanding Debentures 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 6.8, become the successor Trustee with respect to the Debentures of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Debentures of any series
shall have been so appointed by the Company or the Holders of Debentures of
such series and accepted appointment in the manner required by Section 6.8, any
Holder of a Debenture of such series who has been a bona fide Holder of a
Debenture 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 Debentures of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debentures of any series and each
appointment of a successor Trustee with respect to the Debentures of any series
in the manner provided in Section 1.6. Each notice shall include the
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name of the successor Trustee with respect to the Debentures of such series and
the address of its Corporate Trust Office.
Section 6.8 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 written
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, subject
nevertheless to its lien, if any, provided for in Section 6.6.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Debentures of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Debentures of such series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which
(i) shall contain such provisions as shall be necessary or desirable to
transfer and conform to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Debentures of such series to which the appointment of such successor Trustee
relates, (ii) if the retiring Trustee is not retiring with respect to all
Debentures, 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 Debentures of such series as to which the
retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (iii) 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 Debentures of such series to which the appointment
of such successor Trustee relates; but, on the written 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 of such series to which the
appointment of such successor Trustee relates, subject nevertheless to such
retiring Trustee's lien, if any, provided for in Section 6.6.
(c) Upon the written 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.
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Section 6.9 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 6.10 Corporate Trustee Required; Eligibility. There
shall be at all times a Trustee hereunder 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 of at least $50,000,000. If such Person 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 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 hereunder specified in this Article.
Section 6.11 Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor, directly or
indirectly, secured or unsecured, 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 6.12 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 Appointment of Authenticating Agent. The Trustee
may appoint an Authenticating Agent or Agents with respect to Debentures of one
or more series which shall be authorized to act on behalf of the Trustee to
authenticate Debentures of each such series issued upon original issue or upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.6, and Debentures of such series 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. 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.
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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 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 promptly give notice
of such appointment to all Holders of Debentures pursuant to Section 1.6. 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.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section.
If an appointment with respect to Debentures of one or more series
is made pursuant to this Section, the Debentures 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 Debentures of the series designated therein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank
As Trustee
By
-----------------------------
Authenticating Agent
By
-----------------------------
Authorized Signatory
If all of the Debentures of any series may not be originally
issued at one time, and if the Company has an Affiliate eligible to be
appointed as an Authenticating Agent hereunder or the Trustee does not have an
office capable of authenticating Debentures of such series upon original
issuance located in a Place of Payment where the Company wishes to have
Debentures of such series authenticated upon original issuance, the Trustee, if
so requested by the Company in writing (which writing need not comply with
Section 1.2 and need not be accompanied by an Opinion of Counsel), shall
appoint in accordance with this Section an Authenticating Agent (which if so
requested by the Company, shall be such Affiliate of the Company) having an
office in a Place of Payment designated by the Company with respect to such
series of Debentures.
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Section 6.14. Notice of Defaults. If a default occurs
hereunder with respect to Debentures of any series, the Trustee shall give the
Holders of Debentures of such series notice of such default as and to the
extent provided by the Trust Indenture Act; provided, however, that in the case
of any default of the character specified in Section 5.1(d) with respect to
Debentures of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to Debentures of such
series.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Company to Furnish Trustee Names and Addresses of
Debentureholders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Debentures as of such Regular Record
Date, 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,
excluding from any such list names and addresses received by the Trustee in its
capacity as Debenture Registrar.
Section 7.2 Preservation of Information: Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Debentures (i)
contained in the most recent list furnished to the Trustee as provided in
Section 312(a) of the Trust Indenture Act, (ii) received by the Trustee in its
capacity as Debenture Registrar and (iii) filed with it within the two
preceding years pursuant to Section 313(c)(2) of the Trust Indenture Act. The
Trustee may (A) destroy any list furnished to it as provided in Section 312(a)
of the Trust Indenture Act upon receipt of a new list so furnished, (B) destroy
any information received by it as Paying Agent (if so acting) hereunder upon
delivering to itself as Trustee, not earlier than March 20 or September 20 of
each year, a list containing the names and addresses of the Holders of
Debentures obtained from such information since the delivery of the next
previous list, if any, (C) destroy any list delivered to itself as Trustee
which was compiled from information received by it as Paying Agent (if so
acting) hereunder upon the receipt of a new list so delivered and (D) destroy
not earlier than two years after filing, any information filed with it pursuant
to Section 313(c)(2) of the Trust Indenture Act. For purposes of Section
312(a) of the Trust Indenture Act, the term "stated intervals" shall mean
January 15 and July 15.
(b) If three or more Holders of Debentures of any series
(herein referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Debenture of such series for a period of at least six months preceding the date
of such application, and such application states that the applicants desire to
communicate with other Holders of Debentures of such series with respect to
their rights under this Indenture or under the Debentures of
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such series and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such application, at its
election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 7.2(a), or
(ii) inform such applicants as to the approximate number of
Holders of Debentures of such series whose names and addresses appear in
the information preserved at the time by the Trustee in accordance with
Section 7.2(a), and as to the approximate cost of mailing to such Holders
the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Debentures of such series whose name and
address appears in the information preserved at the time by the Trustee in
accordance with Section 7.1(a) a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment of the reasonable expenses of mailing, unless within
five days after such tender the Trustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interest of the Holders of Debentures of
such series or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if after the
entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders of Debentures of such
series with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Every Holder of Debentures or Coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Debentures in accordance with Section 7.2(b),
regardless of the source from which such information was derived and that the
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 7.2(b).
Section 7.3 Reports by Trustee. The Trustee shall in each
year transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act in
the manner provided pursuant thereto. If required by Section 313(a) of the
Trust Indenture Act, the Trustee shall, within sixty days after each May 15
following the date of this Indenture transmit by mail to Holders a brief
report, dated as of such May 15, which complies with the provisions of Section
313(a).
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 and with the
Company. The Company will promptly notify the Trustee when any Debentures
are listed on any stock exchange or market center.
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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 such 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 required to be filed
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 to all Holders, in the manner and to the extent
provided in Trust Indenture Act Section 313(c), 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.
Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute notice of any information contained therein or determinable from
information contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates and Opinion of Counsel).
ARTICLE VIII
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 8.1 Company May Consolidate, Etc. on Certain Terms.
The Company shall not merge or consolidate with any other corporation or sell
or convey all or substantially all of its assets to any Person, unless (a)
either the Company shall be the continuing corporation, or the successor
corporation (if other than the Company, which term shall include a parent of
the Company in the event the Company's outstanding Common Stock is converted
into common stock of such parent) shall be a corporation organized under the
laws of the United States of America or any State thereof and shall expressly
assume the due and punctual payment of the principal of and interest on all the
Debentures, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Company, by supplemental indenture satisfactory to
the Trustee, executed and delivered to the Trustee by such corporation, (b) the
Company or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale or conveyance, be
in default in the performance of any such covenant or
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condition, (c) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing and (d) the
Company has delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel each stating that such consolidation, merger, conveyance or transfer
and such supplemental indenture comply with this Article and that all
conditions precedent herein provided relating to such transaction have been
complied with.
Section 8.2 Successor Corporation Substituted. In case of
any such consolidation, merger, sale or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein. Such successor corporation may cause to be signed, and
may issue either in its own name or in the name of the Company prior to such
succession any or all of the Debentures issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of such successor corporation instead of the Company and subject
to all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any securities which previously
shall have been signed and delivered by the officers of the Company, to the
Trustee for authentication, and any Debentures which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All of the Debentures so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Debentures theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Debentures had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Debentures thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease) the Company or any successor corporation which
shall theretofore have become such in the manner described in this Article
shall be discharged from all obligations and covenants under this Indenture and
the Debentures and may be liquidated and dissolved.
Section 8.3 Opinion of Counsel to Trustee. The Trustee shall
receive an Opinion of Counsel, prepared in accordance with Sections 1.2 and
8.1(d), as conclusive evidence that any such consolidation, merger, sale, lease
or conveyance, and any such assumption, and any such liquidation or
dissolution, complies with the applicable provisions of this Indenture.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders of Debentures or Coupons, the
Company, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Debentures; or
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(b) to add to the covenants of the Company for the benefit of
the Holders of Debentures of all or any series (and if such covenants are
to be for the benefit of Debentures of less than all series, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(c) to add any additional Events of Default (and if such
Events of Default are to be for the benefit of Debentures of less than all
series, stating that such Events of Default are expressly being included
solely for the benefit of such series); or
(d) to add to or change any of the provisions of this
Indenture to provide that Bearer Debentures may be registerable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Debentures, to permit
Bearer Debentures to be issued in exchange for Registered Debentures, to
permit Bearer Debentures to be issued in exchange for Bearer Debentures of
other authorized denominations or to permit or facilitate the issuance of
Debentures in uncertificated form, provided that any such action shall not
adversely affect the interests of the Holders of Debentures of any series
or any related Coupons in any material respect; or
(e) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Debenture Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision; or
(f) to establish the form or terms of Debentures of any series
and any related Coupons as permitted by Sections 2.1 and 3.1; or
(g) to evidence and provide for the acceptance of appointment
thereunder by a successor Trustee with respect to the Debentures 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 6.8(b); or
(h) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Article XIV, including providing
for the conversion of the Debentures into any security or property (other
than the Common Stock of the Company); or
(i) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to matters
or questions arising under this Indenture, provided that such other
provisions shall not adversely affect the interests of the Holders of
Debentures of any series or any related Coupons in any material respect.
Section 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Debentures of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Debentures of such series and any related Coupons under this
Indenture;
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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 on, any Debenture of any series, or
reduce the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or change any obligation of
the Company to pay additional amounts pursuant to Section 10.4 (except as
contemplated by Section 8.1 and permitted by Section 9.1(a)), or reduce the
amount of the principal of an Original Issue Discount Debenture that would
be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2 or change the coin or currency in which any
Debenture or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(b) reduce the percentage in principal amount of the
Outstanding Debentures 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 certain defaults hereunder and their
consequences provided for in this Indenture, or reduce the requirements of
Section 13.4 for quorum or voting, or
(c) change any obligation of the Company 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 or Section
5.13, 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 Debenture affected thereby;
provided, however, that this clause shall not be deemed to require the
consent of any Holder of a Debenture of such series or Coupon 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 6.7(b) and 9.1(h), or
(e) make any change that adversely affects the right to
convert any Debenture of any series as provided in Article XIV or pursuant
to Section 3.1 (except as permitted by Section 9.1) or decrease the
conversion rate or increase the conversion price of any such Debenture of
such series, or
(f) if the Debentures of any series are secured, change the
terms and conditions pursuant to which the Debentures of such series are
secured in a manner adverse to the Holders of the secured Debentures of
such series, or
(g) make any change in Article XV that adversely affects the
rights of any Holders of Outstanding Debentures of such series.
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 Debentures of one or more particular series, or which
modifies the rights of the Holders of Debentures 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 Debentures of any other series.
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It shall not be necessary for any Act of Holders of Debentures of
any series 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 6.2) 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 and
of any Coupons appertaining thereto 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 of 1939, as amended, in effect on such
date.
Section 9.6 Reference in Debentures to Supplemental
Indentures. Debentures 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 Debentures 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 Debentures of such series.
ARTICLE X
COVENANTS
Section 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of Debentures of any series
that it will duly and punctually pay the principal of and any premium and
interest on the Debentures of such series in accordance with the terms of the
Debentures of such series, any Coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 3.1 with respect to
Debentures of such series, any interest due on Bearer Debentures of such series
on or before Maturity shall be payable only upon presentation and surrender
outside the United States of the several Coupons for such interest installments
as are evidenced thereby as they severally mature.
Section 10.2 Maintenance of Office or Agency. If Debentures
of any series are issuable only as Registered Debentures, the Company will
maintain in each Place of Payment for such series an office or agency where
Debentures of such series may be presented or surrendered for payment, where
Debentures of such series may be surrendered for registration of transfer,
exchange, or conversion and
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where notices and demands to or upon the Company in respect of the Debentures
of such series and this Indenture may be served. If Debentures of any series
are issuable as Bearer Debentures, the Company will maintain (a) in The City of
New York, an office or agency where any Registered Debentures of such series
may be presented or surrendered for payment, where any Registered Debentures of
such series may be surrendered for registration of transfer, where Debentures
of such series may be surrendered for conversion or exchange, where notices and
demands to or upon the Company in respect of Debentures of such series and this
Indenture may be served and where Bearer Debentures of such series and related
Coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (b) subject to any
laws or regulations applicable thereto, in a Place of Payment for such series
which is located outside the United States, an office or agency where
Debentures of such series and related Coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Debentures
of such series pursuant to Section 10.4); provided, however, that if the
Debentures of such series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Debentures of such
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as Debentures of such series are
listed on such exchange, and (c) subject to any laws or regulations applicable
thereto in a Place of Payment for such series located outside the United States
an office or agency where any Registered Debentures of such series may be
surrendered for registration of transfer, where Debentures of such series may
be surrendered for conversion or exchange and where notices and demands to or
upon the Company in respect of the Debentures of such series and this Indenture
may be served. The Company will give prompt notice to the Trustee and to the
Holders as provided in Sections 1.5 and 1.6, respectively, of the location and
any change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency in respect of
Debentures of any series or shall fail to furnish the Trustee with the address
thereof, such presentations and surrenders of Debentures of such series may be
made and notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Debentures of such series and the
related Coupons may be presented and surrendered for payment (including payment
of any additional amounts payable on Bearer Debentures of such series pursuant
to Section 10.4) at the office of the Trustee for such series located outside
the United States, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Debentures
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to any account
maintained with a bank located in the United States; provided, however, that if
the Debentures of any series are denominated and payable in Dollars, payment of
principal of and any premium and interest on any Bearer Debenture of such
series (including any additional amounts payable on Debentures of such series
pursuant to Section 10.4) shall be made at the office of the Company's Paying
Agent in The City of New York, if (but only if) payment in Dollars of the full
amount of such principal, premium, interest or additional amounts, as the case
may be, at all offices or agencies outside the United States maintained for the
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Debentures 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
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in accordance with the requirements set forth above for Debentures of any
series for such purposes. The Company will give prompt written notice to the
Trustee and the Holders of Debentures of such series of any such designation or
rescission and of any change in the location of any such other office or
agency.
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 Debentures of any series, it will, on or before each due date of the
principal of and any premium or interest on any of the Debentures of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure to act.
Whenever the Company shall have one or more Paying Agents for
Debentures of any series it will, prior to each due date of the principal of
and any premium or interest on any Debentures of such series, deposit with a
Paying Agent a sum sufficient to pay the principal and any premium or interest
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure to act.
The Company will cause each Paying Agent for Debentures of any
series other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal
of and any premium or interest on Debentures of such 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;
(b) give the Trustee notice of any default by the Company (or
any other obligor upon the Debentures of such series) in the making of any
payment of principal of and any premium or interest on the Debentures of
such series; and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
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 and any
premium or interest on any Debenture of any series and remaining unclaimed for
two years after such principal and any 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 the
Debenture of such series or any Coupon appertaining thereto 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
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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 or mail to
each such Holder of the Debentures of such series or both, 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 or mailing, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.4 Additional Amounts. If the Debentures of any
series provide for the payment of additional amounts, the Company will pay to
the Holder of any Debenture of such series or any Coupon appertaining thereto
additional amounts as provided therein. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of any Debenture of any series or payment of any
related Coupon or the net proceeds received on the sale or exchange of any
Debenture of any series, such mention shall be deemed to include mention of the
payment of additional amounts provided for in this Section to the extent that,
in such context additional amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of the
payment of additional amounts (if applicable) in any provisions hereof shall
not be construed as excluding additional amounts in those provisions hereof
where such express mention is not made.
If the Debentures of any series provide for the payment of
additional amounts, at least 10 days prior to the first Interest Payment Date
with respect to Debentures of such series (or if the Debentures of such series
will not bear interest prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior to each date of
payment of principal and any premium or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's principal
Paying Agent or Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any premium or interest on the
Debentures of such series shall be made to Holders of Debentures of such series
or any Coupons appertaining thereto who are United States Aliens without
withholding for or on account of any tax assessment or other governmental
charge described in the Debentures of such series. If any such withholding
shall be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of
Debentures of such series or any Coupons appertaining thereto and the Company
will pay to the Trustee or such Paying Agent the additional amounts required by
this Section. The Company covenants to indemnify the Trustee and any Paying
Agent for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or willful misconduct on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this Section.
Section 10.5 Existence. Subject to Article VIII, the Company
will do or cause to be done all 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 the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
Section 10.6 Purchase of Debentures by Company or Subsidiary.
If and so long as the Debentures of any series are listed on The Stock Exchange
of the United Kingdom and the Republic of
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Ireland and such stock exchange shall so require, the Company will not, and
will not permit any of its Subsidiaries to, purchase any Debentures of such
series by private treaty at a price (exclusive of expenses and accrued
interest) which exceeds 120% of the mean of the nominal quotations of the
Debentures of such series as shown in The Stock Exchange Daily Official List
for the last trading day preceding the date of purchase.
Section 10.7 Statement by Officers as to Default. The Company
will deliver to the Trustee, within 120 days after the end of each fiscal year
of the Company ending after the date hereof, an Officers' Certificate signed by
any two of its principal executive officer, president, principal financial
officer, principal accounting officer or any vice president stating as to each
signer thereof, that a review of the activities of the Company during such year
and of its performance under this Indenture has been made under his supervision
and whether or not to the best knowledge of the signer thereof, based on such
review, the Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture, and if the Company
shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge and the nature and status thereof.
The Company shall file with the Trustee written notice of the
occurrence of any default or Event of Default within five Business Days of its
becoming aware of any such default or Event of Default.
Section 10.8 Calculation of Original Issue Discount. The
Company shall file with the Trustee promptly at the end of each year a written
notice specifying the amount of Original Issue Discount (including daily rates
and accrual periods) accrued on Outstanding Debentures as of the end of such
year.
Section 10.9 Financial Information; SEC Reports. The Company
will deliver to the Trustee (a) as soon as available and in any event within
115 days after the end of each fiscal year of the Company (i) a consolidated
balance sheet of the Company and its Subsidiaries as of the end of such fiscal
year and the related consolidated statements of operations, stockholders'
equity and cash flows for such fiscal year, all reported on by an independent
public accountant of nationally recognized standing and (ii) a report
containing a management's discussion and analysis of the financial condition
and results of operations and a description of the business and properties of
the Company and (b) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of the Company
(i) an unaudited consolidated financial report for such quarter and (ii) a
report containing a management's discussion and analysis of the financial
condition and results of operations of the Company; provided that the foregoing
shall not be required for any fiscal year or quarter, as the case may be, with
respect to which the Company files or expects to file with the Trustee an
annual report or quarterly report, as the case may be, pursuant to the second
paragraph of this Section 10.9.
The Company shall file with the Trustee, within 15 days after it
files such annual and quarterly reports, information, documents and other
reports with the Commission, copies of its annual report and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may by rules and regulations prescribe) which
the Company is required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act.
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With respect to Debentures originally issued in an offering not
registered pursuant to the Securities Act, if prior to the Transfer Restriction
Termination Date, the Company is neither subject to Section 13 or 15(d) of the
Exchange Act, the Company shall at the request of any Holder provide to such
Holder and any prospective purchaser designated by such Holder such
information, if any, required by Rule 144A(d)(4) under the Securities Act.
ARTICLE XI
REDEMPTION OF DEBENTURES
Section 11.1 Applicability of Article. Debentures 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 Debentures of any series) in accordance with this Article.
Section 11.2 Election to Redeem; Notice to Trustee. The
election of the Company to redeem Debentures of any series shall be evidenced
by an Officers' Certificate. In the case of any redemption, at the election of
the Company, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal
amount of Debentures of such series to be redeemed. In the case of any
redemption of Debentures of such series (a) prior to the expiration of any
restriction on such redemption provided in the terms of such Debentures of such
series or elsewhere in this Indenture, or (b) pursuant to an election of the
Company which is subject to a condition specified in the terms of Debentures of
such series, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
Section 11.3 Selection by Trustee of Debentures to Be
Redeemed. If less than all the Debentures of any series and of like tenor are
to be redeemed, the particular Debentures of such series to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Debentures of such series and of like tenor not previously
called for redemption, by lot, pro rata or 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 of such series or any integral multiple thereof) of the principal
amount of Registered Debentures of such series of a denomination larger than
the minimum authorized denomination for Debentures of such series. If so
specified in the Debentures of any series, partial redemptions must be in an
amount not less than $1,000,000 principal amount of Debentures.
If Debentures of any series selected for partial redemption are
converted in part before termination of the conversion right with respect to
the portion of the Debenture of such series so selected, the converted portion
of the Debentures of such series shall be deemed (so far as may be) to be the
portion selected for redemption. Debentures (or portions thereof) which have
been converted during a selection of Debentures of such series 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 of such series 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 of such series.
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The Trustee shall promptly notify the Company in writing of the
Debentures of such series selected for redemption and, in the case of any
Debentures of such series 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 of such
series of such series shall relate, in the case of any Debentures of such
series redeemed or to be redeemed only in part, to the portion of the principal
amount of the Debentures of such series which has been or is to be redeemed.
Section 11.4 Notice of Redemption. Notice of redemption shall
be given in the manner provided in Section 1.6 to the Holders of Debentures to
be redeemed not less than 30 nor more than 60 days prior to the Redemption
Date.
All notices of redemption shall identify the Debentures (including
the CUSIP number) to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Debentures of any series
are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debentures of such series to be
redeemed, and a statement to the effect that on or after the Redemption Date
upon surrender of such Debenture a new Debenture of such series in the
principal amount equal to the unredeemed portion will be issued;
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debenture of such series 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 Debentures of such series,
together in the case of Bearer Debentures of such series with all Coupons
appertaining thereto, if any maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price which shall be the office or
agency of the Company in each Place of Payment;
(f) that the redemption is for a sinking fund, if such is the
case;
(g) if applicable, the conversion rate or price, the date on
which the right to convert the Debentures of such series to be redeemed will
terminate and the place or places where such Debentures may be surrendered for
conversion; and
(h) that the Trustee is not responsible for the correctness or
accuracy of any CUSIP number.
A notice of redemption published as contemplated by Section 1.6
need not identify particular Registered Debentures of such series to be
redeemed.
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Notice of redemption of Debentures to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
Section 11.5 Deposit of Redemption Price. 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.
If any Debenture called for redemption is converted into Common
Stock of the Company, any money deposited with the Trustee or with any Paying
Agent or so segregated and held in trust for the redemption of such Debenture
shall (subject to any right of the Holder of such Debenture or any Predecessor
Debenture to receive interest as provided in the last paragraph of Section 3.7)
be paid to the Company upon Company Request or, if then held by the Company,
shall be discharged from such trust.
Section 11.6 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 and the Coupons for such interest
appertaining to any Bearer Debentures so to be redeemed except to the extent
provided below, shall be void. Upon surrender of any such Debenture for
redemption in accordance with said notice together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, 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 on
Bearer Debentures whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 10.2) and, unless otherwise specified
as contemplated by Section 3.1, only upon presentation and surrender of Coupons
for such interest; and provided, further, that, unless otherwise specified as
contemplated by Section 3.1, installments of interest on Registered Debentures
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 Bearer Debenture surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Debenture may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Debenture shall surrender to the Trustee or any Paying Agent any such missing
Coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by Coupons shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 10.2) and unless otherwise specified as contemplated by
Section 3.1 only upon presentation and surrender of those Coupons.
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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 11.7 Debentures Redeemed in Part. Any Registered
Debenture of any series 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 make available for delivery to
the Holder of such Debenture without service charge, a new Registered Debenture
or Debentures of such 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 Debenture of such
series 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
Debentures of any series except as otherwise specified as contemplated by
Section 3.1 for Debentures of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debentures 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 Debentures of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Debentures 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 Debentures of any series as provided for by the terms of
Debentures of such series.
Section 12.2 Satisfaction of Sinking Fund Payments with
Debentures. The Company (a) may deliver Outstanding Debentures of any series
(other than any previously called for redemption), together in the case of any
Bearer Debentures of such series with all unmatured Coupons appertaining
thereto, and (b) may apply as a credit Debentures of such series which have
been redeemed either at the election of the Company pursuant to the terms of
the Debentures of such series or through the application of permitted optional
sinking fund payments pursuant to the terms of the Debentures, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Debentures of such series required to be made pursuant to the terms of the
Debentures of such series; provided that the Debentures of such series have not
been previously so credited. The Debentures shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in the Debentures
of such series 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 Debentures for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for Debentures of any
series, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such series
pursuant to the terms of such series, the portion thereof, if any, which is to
be satisfied by payment of
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cash and the portion thereof, if any, which is to be satisfied by delivering
and crediting Debentures of such series pursuant to Section 12.2 and will also
deliver to the Trustee any Debentures of such series to be so delivered. Not
less than 45 days before each such sinking fund payment date the Trustee shall
select the Debentures of such series 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 Debentures of such series shall be made upon the terms
and in the manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
MEETINGS OF HOLDERS OF DEBENTURES
Section 13.1 Purposes for Which Meetings May be Called. If
Debentures of any series are issuable as Bearer Debentures, a meeting of
Holders of Debentures of such series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Debentures of such
series.
Section 13.2 Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Debentures of such series
for any purpose specified in Section 13.1, to be held at such time and at such
place in the Borough of Manhattan, The City of New York, or in London as the
Trustee shall determine. Notice of every meeting of Holders of Debentures of
any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 1.6, not less than 21 nor more than 90 days prior to
the date fixed for the meeting (or, in the case of a meeting of Holders with
respect to Debentures of any series all or part of which are represented by a
Book-Entry Debenture, not less than 20 nor more than 40 days).
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 25% in principal amount of the
Outstanding Debentures of any series shall have requested the Trustee to call a
meeting of the Holders of Debentures of such series for any purpose specified
in Section 13.1, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have made
the first publication of the notice of such meeting within 20 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Debentures of
such series in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New York or in
London for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
Section 13.3 Persons Entitled to Vote at Meetings. Upon the
calling of any meeting of Holders with respect to the Debentures of any series
all or part of which are represented by a Book-Entry Debenture, a record date
shall be established for determining Holders of Outstanding Debentures of such
series entitled to vote at such meeting, which record date shall be the close
of business on the day the notice of the meeting of Holders is given in
accordance with Section 13.2. The Holders on such record date, and their
designated proxies, and only such Persons, shall be entitled to vote at any
meeting of Holders. To be entitled to vote at any meeting of Holders a Person
shall (a) be a Holder of one or more
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Debentures of such series or (b) be a Person appointed by an instrument in
writing as proxy by a Holder of one or more Debentures of such series;
provided, however, that in the case of any meeting of Holders with respect to
the Debentures of any series all or part of which are represented by a
Book-Entry Debenture, only Holders, or their designated proxies, of record on
the record date established pursuant to Section 13.3 hereof shall be entitled
to vote at such meeting. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders shall be the Persons entitled to vote at
such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
Section 13.4 Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Debentures of any series shall
constitute a quorum for a meeting of Holders of Debentures of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of a specified percentage in aggregate principal amount of
Outstanding Debentures of such series that is less or greater than a majority
in principal amount of the Outstanding Debentures of such series, then, with
respect to such action (and only such action) the Persons entitled to vote such
lesser or greater percentage in principal amount of the Outstanding Debentures
of such series shall constitute a quorum. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Debentures of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 13.2 (a), except that such notice need be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the outstanding Debentures of such series which shall
constitute a quorum. Notwithstanding the foregoing, no meeting of Holders with
respect to Debentures of any series which is represented in whole or in part by
a Book-Entry Debenture, shall be adjourned to a date more than 90 days after
the record date for such meeting unless the Trustee shall send out a new notice
of meeting and establish, in accordance with Section 13.3, a new record date
for Holders entitled to vote at such meeting.
Except as limited by the proviso to Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Debentures of such series;
provided, however, that, except as limited by the proviso to Section 9.2, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of a specified percentage in aggregate
principal amount of Outstanding Debentures of such series that is less or
greater than a majority in principal amount of the Outstanding Debentures of
such series may be adopted at a meeting or an adjourned meeting duly convened
and at which a quorum is present as aforesaid only by the affirmative vote of
the Holders of such specified percentage in principal amount of the Outstanding
Debentures of such series.
Any resolution passed or decision taken at any meeting of Holders
of Debentures of any series duly held in accordance with this Section shall be
binding on all the Holders of Debentures of such series and the Coupons
appertaining thereto, whether or not present or represented at the meeting.
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Section 13.5 Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Debentures of any series in regard to
proof of the holding of Debentures of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Debentures of such series shall be proved in
the manner specified in Section 1.4 and the appointment of any proxy shall be
proved in the manner specified in Section 1.4 or by having the signature of the
person executing the proxy witnessed or guaranteed by any trust company, bank
or banker authorized by Section 1.4 to certify to the holding of Bearer
Debentures of such series. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid
and genuine without the proof specified in Section 1.4 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Debentures of such series as provided in Section
13.2(b), in which case the Company or the Holders of Debentures of such series
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Debentures of such series represented at
the meeting.
(c) At any meeting each Holder of a Debenture of such series or
proxy shall be entitled to one vote for each $ 1,000 principal amount of the
Outstanding Debentures of such series held or represented by him (or
proportionate fraction of a vote for any lesser principal amount thereof);
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Debenture challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Debenture of such series
or proxy.
(d) Any meeting of Holders of Debentures of any series duly called
pursuant to Section 13.2 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Debentures of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 13.6 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Debentures
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Debentures of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Debentures of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Debentures of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 13.2 and, if
applicable, Section 13.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the
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Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters
therein stated.
ARTICLE XIV
CONVERSION OF DEBENTURES
Section 14.1 Applicability of Article. The provisions of this
Article shall be applicable to the Debentures of any series which are
convertible into shares of Common Stock of the Company, and the issuance of
such shares of Common Stock upon the conversion of Debentures of such series,
except as otherwise specified as contemplated by Section 3.1 for the Debentures
of such series. The terms and provisions applicable to the conversion of
Debentures of any series into securities of the Company (other than Common
Stock) shall, if applicable, be set forth in an Officers' Certificate or
established in one or more indentures supplemental hereto, prior to the
issuance of Debentures of such series in accordance with Section 3.1.
Section 14.2 Exercise of Conversion Privilege. In order to
exercise a conversion privilege, the Holder of a Debenture of any series with
such a privilege shall surrender such Debenture to the Company at the office or
agency maintained for that purpose pursuant to Section 10.2, accompanied by
written notice to the Company that the Holder elects to convert such Debenture
or a specified portion thereof. Such notice shall also state, if different
from the name and address of such Holder, the name or names (with address) in
which the certificate or certificates for shares of Common Stock which shall be
issuable on such conversion shall be issued. Debentures of such series
surrendered for conversion shall (if so required by the Company or the Trustee)
be duly endorsed by or accompanied by instruments of transfer in forms
satisfactory to the Company and the Trustee duly executed by the registered
Holder or its attorney duly authorized in writing. As promptly as practicable
after the receipt of such notice and of any payment required pursuant to a
Board Resolution and, subject to Section 3.1, set forth, or determined in the
manner provided, in an Officers' Certificate, or established in one or more
indentures supplemental hereto setting forth the terms of Debentures and the
surrender of such Debentures in accordance with such reasonable regulations as
the Company may prescribe, the Company shall issue and shall deliver, at the
office or agency at which such Debenture is surrendered, to such Holder or on
its written order, a certificate or certificates for the number of full shares
of Common Stock issuable upon the conversion of such Debenture (or specified
portion thereof), in accordance with the provisions of such Board Resolution,
Officers' Certificate or supplemental indenture, and cash as provided therein
in respect of any fractional share of such Common Stock otherwise issuable upon
such conversion. Such conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which such notice and
such payment, if required, shall have been received in proper order for
conversion by the Company and such Debenture shall have been surrendered as
aforesaid (unless such Holder shall have so surrendered such Debenture and
shall have instructed the Company to effect the conversion on a particular date
following such surrender and such Holder shall be entitled to convert such
Debenture on such date, in which case such conversion shall be deemed to be
effected immediately prior to the close of business on such date) and at such
time the rights of the Holder of such Debenture as such Debenture Holder shall
cease and the person or persons in whose name or names any certificate or
certificates for shares of Common Stock of the Company shall be issuable upon
such conversion shall be deemed to have become the holder or holders of record
of the shares represented thereby. Except as set forth above and subject to
the final paragraph of Section 3.7, no payment or adjustment shall be made upon
any conversion on account of any interest accrued on the Debentures of such
series surrendered for
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conversion or on account of any dividends on the Common Stock of the Company
issued upon such conversion.
In the case of any Debenture of any series which is converted in
part only, upon such conversion the Company shall execute and, upon Company
Order, the Trustee shall authenticate and make available for delivery to or on
the order of the Holder thereof, at the expense of the Company, a new Debenture
or Debentures of such series, of authorized denominations, in aggregate
principal amount equal to the unconverted portion of such Debenture.
Section 14.3 No Fractional Shares. No fractional share of
Common Stock of the Company shall be issued upon conversions of Debentures of
any series. If more than one Debenture of such series shall be surrendered for
conversion at one time by the same Holder, the number of full shares which
shall be issuable upon conversion shall be computed on the basis of the
aggregate principal amount of the Debentures of such series (or specified
portions thereof to the extent permitted hereby) so surrendered. If, except
for the provisions of this Section 14.3, any Holder of a Debenture or
Debentures of such series would be entitled to a fractional share of Common
Stock of the Company upon the conversion of such Debenture or Debentures, or
specified portions thereof, the Company shall pay to such Holder an amount in
cash equal to the current market value of such fractional share computed, (a)
if such Common Stock is listed or admitted to unlisted trading privileges on a
national securities exchange, on the basis of the last reported sale price
regular way on such exchange on the last trading day prior to the date of
conversion upon which such a sale shall have been effected, or (b) if such
Common Stock is not at the time so listed or admitted to unlisted trading
privileges on a national securities exchange or market, on the basis of the
average of the bid and asked prices of such Common Stock in the
over-the-counter market, on the last trading day prior to the date of
conversion, as reported by the National Quotation Bureau, Incorporated or
similar organization if the National Quotation Bureau, Incorporated is no
longer reporting such information, or if not so available, the fair market
price as determined by the Board of Directors. For purposes of this Section,
"trading day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
other than any day on which the Common Stock is not traded on the New York
Stock Exchange, or if the Common Stock is not traded on the New York Stock
Exchange, on the principal exchange or market on which the Common Stock is
traded or quoted.
Section 14.4 Adjustment of Conversion Price. The conversion
price of Debentures of any series that is convertible into Common Stock of the
Company shall be adjusted for any stock dividends, stock splits,
reclassification, combinations or similar transactions in accordance with the
terms of the supplemental indenture or Board Resolutions setting forth the
terms of the Debentures of such series.
Whenever the conversion price is adjusted, the Company shall
compute the adjusted conversion price in accordance with terms of the
applicable Board Resolution or supplemental indenture and shall prepare an
Officers' Certificate setting forth the adjusted conversion price and showing
in reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed at each office or agency maintained for
the purpose of conversion of Debentures of such series pursuant to Section 10.2
and, if different, with the Trustee. The Company shall forthwith cause a
notice setting forth the adjusted conversion price to be mailed, first class
postage prepaid, to each Holder of Debentures of such series at its address
appearing on the Debenture Register and to any conversion agent other than the
Trustee.
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Section 14.5 Notice of Certain Corporate Actions. In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of its
retained earnings (other than a dividend for which approval of any
shareholders of the Company is required); or
(b) the Company shall authorize the granting to the holders of
its Common Stock of rights, options or warrants to subscribe for or
purchase any shares of capital stock of any class or of any other rights
(other than any such grant for which approval of any shareholders of the
Company is required); or
(c) of any reclassification of the Common Stock of the Company
(other than a subdivision or combination of its outstanding shares of
Common Stock) or of any consolidation, merger or share exchange to which
the Company is a party and for which approval of any shareholders of the
Company is required, or of the sale of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then the Company shall cause to be filed with the Trustee, and shall cause to
be mailed to all Holders at their last addresses as they shall appear in the
Debenture Register, at least 20 days (or 10 days in any case specified in
clause (a) or (b) above) prior to the applicable record date hereinafter
specified, a notice stating (i) the date on which a record is to be taken for
the purpose of such dividend, distribution, rights, options 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, options or
warrants are to be determined, or (ii) the date on which such reclassification,
consolidation, merger, share exchange, sale, 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, share exchange, sale,
dissolution, liquidation or winding up. If at any time the Trustee shall not
be the conversion agent, a copy of such notice shall also forthwith be filed by
the Company with the Trustee.
Section 14.6 Reservation of Shares of Common Stock. The
Company shall at all times reserve and keep available, free from preemptive
rights, out of its authorized but unissued Common Stock or treasury shares, for
the purpose of effecting the conversion of Debentures, the full number of
shares of Common Stock of the Company then issuable upon the conversion of all
outstanding Debentures of any series that has conversion rights.
Section 14.7 Payment of Certain Taxes upon Conversion. The
Company will pay any and all taxes that may be payable in respect of the issue
or delivery of shares of its Common Stock on conversion of Debentures pursuant
hereto. The Company shall not, however, be required to pay any tax which may
be payable in respect of any transfer involved in the issue and delivery of
shares of its Common Stock in a name other than that of the Holder of the
Debenture or Debentures to be converted, and no such issue or delivery shall be
made unless and until the person requesting such issue has paid to the Company
the amount of any such tax, or has established, to the satisfaction of the
Company, that such tax has been paid.
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Section 14.8 Nonassessability. The Company covenants that all
shares of Common Stock which may be issued upon conversion of Debentures will
upon issue in accordance with the terms hereof be duly and validly issued and
fully paid and nonassessable.
Section 14.9 Effect of Consolidation or Merger on Conversion
Privilege. Unless otherwise provided as contemplated by Section 3.1 with
respect to Debentures of any series, in case of any consolidation of the
Company with, or merger of the Company into or with any other Person, or in
case of any sale of all or substantially all of the assets of the Company, the
Company or the Person formed by such consolidation or the Person into which the
Company shall have been merged or the Person which shall have acquired such
assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Debenture then
outstanding of any series that is convertible into Common Stock shall have the
right, which right shall be the exclusive conversion right thereafter available
to said Holder (until the expiration of the conversion right of such
Debenture), to convert such Debenture into the kind and amount of shares of
stock or other securities or property (including cash) receivable upon such
consolidation, merger or sale by a holder of the number of shares of Common
Stock into which such Debenture might have been converted immediately prior to
such consolidation, merger or sale, subject to compliance with the other
provisions of this Indenture, such Debenture and such supplemental indenture.
Such supplemental indenture shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in such
Debenture. The above provisions of this Section shall similarly apply to
successive consolidations, mergers or sales. Unless otherwise provided as
contemplated by Section 3.1 with respect to Debentures of any series, it is
expressly agreed and understood that anything in this Indenture to the contrary
notwithstanding, if, pursuant to such merger, consolidation or sale, holders of
outstanding shares of Common Stock do not receive shares of common stock of the
surviving corporation but receive other securities, cash or other property or
any combination thereof, Holders of Debentures shall not have the right to
thereafter convert their Debentures into common stock of the surviving
corporation or the corporation which shall have acquired such assets, but
rather, shall have the right upon such conversion to receive the other
securities, cash or other property receivable by a holder of the number of
shares of Common Stock into which the Debentures held by such Holder might have
been converted immediately prior to such consolidation, merger or sale, all as
more fully provided in the first sentence of this Section 14.9. Anything in
this Section 14.9 to the contrary notwithstanding, the provisions of this
Section 14.9 shall not apply to a merger or consolidation of another
corporation with or into the Company pursuant to which both of the following
conditions are applicable: (i) the Company is the surviving corporation and
(ii) the outstanding shares of Common Stock are not changed or converted into
any other securities or property (including cash) or changed in number or
character or reclassified pursuant to the terms of such merger or
consolidation.
As evidence of the kind and amount of shares of stock or other
securities or property (including cash) into which Debentures may properly be
convertible after any such consolidation, merger or sale, or as to the
appropriate adjustments of the conversion prices applicable with respect
thereto, the Trustee shall be furnished with and may accept the certificate or
opinion of an independent certified public accountant with respect thereto;
and, in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely thereon, and shall not be responsible or accountable to any
Holder of Debentures for any provision in conformity therewith or approved by
such independent certified accountant which may be contained in said
supplemental indenture.
Section 14.10 Duties of Trustee Regarding Conversion. Neither
the Trustee nor any conversion agent shall at any time be under any duty or
responsibility to any Holder of Debentures of
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any series that is convertible into Common Stock 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, whether herein or in any supplemental indenture (or
whether a supplemental indenture need be entered into), any resolutions of the
Board of Directors or written instrument executed by one or more officers of
the Company provided to be employed in making the same. Neither the Trustee
nor any conversion agent shall be accountable with respect to the validity or
value (or the kind 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 Debentures 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 issue,
transfer or deliver any shares of Common Stock or stock certificates or other
securities or property upon the surrender of any Debenture for the purpose of
conversion or to comply with any of the covenants of the Company contained in
this Article XIV or in the applicable supplemental indenture, resolutions of
the Board of Directors or written instrument executed by one or more duly
authorized officers of the Company. All Debentures delivered for conversion
shall be delivered to the Trustee to be canceled by or at the direction of the
Trustee, which shall dispose of the same as provided in Section 3.9.
Section 14.11 Repayment of Certain Funds upon Conversion. Any
funds which at any time shall have been deposited by the Company or on its
behalf with the Trustee or any other paying agent for the purpose of paying the
principal of, and premium, if any, and interest, if any, on any of the
Debentures (including funds deposited for the sinking fund referred to in
Article III hereof) and which shall not be required for such purposes because
of the conversion of such Debentures as provided in this Article XIV shall
after such conversion be repaid to the Company by the Trustee upon the
Company's written request, subject to the final paragraph of Section 3.7
hereof.
ARTICLE XV
SUBORDINATION OF DEBENTURES
Section 15.1 Debentures Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Debenture, by the
Holder's acceptance thereof, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article, the indebtedness
represented by the Debentures and the payment of the principal of (and premium,
if any) and interest on each and all of the Debentures are hereby expressly
made subordinate and junior in right of payment to the prior payment in full of
all Senior Indebtedness of the Company, whether outstanding at the date of this
Indenture or thereafter incurred. No provision of this Article shall prevent
the occurrence of any default or Event of Default hereunder.
Section 15.2 Payment Over of Proceeds Upon Dissolution, Etc.
Upon any payment by the Company or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to creditors upon
any dissolution or winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due upon all Senior Indebtedness of the Company
shall first be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made by the Company on account
of the principal (and premium, if any) or interest on the Debentures; and upon
any such dissolution or winding-up or liquidation or reorganization, any
payment by the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities,
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which the Holders of the Debentures or the Trustee would be entitled to receive
from the Company, except for the provisions of this Article, shall be paid by
the Company or by any receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, or by the Holders of
the Debentures or by the Trustee under the Indenture if received by them or it,
directly to the holders of Senior Indebtedness of the Company (pro rata to such
holders on the basis of the respective amounts of Senior Indebtedness held by
such holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay such
Senior Indebtedness in full, in money or money's worth, after giving effect to
any concurrent payment or distribution to or for the holders of such Senior
Indebtedness, before any payment or distribution is made to the Holders of the
Debentures or to the Trustee.
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, prohibited by the foregoing, shall be received by
the Trustee or any Holder of the Debentures before all Senior Indebtedness of
the Company is paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders of such
Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, and their respective
interests may appear, as calculated by the Company, for application to the
payment of all Senior Indebtedness of the Company, as the case may be,
remaining unpaid to the extent necessary to pay such Senior Indebtedness in
full in money in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the benefit of the holders of
such Senior Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment which are
subordinated in right of payment to all Senior Indebtedness which may at the
time be outstanding to substantially the same extent as, or to a greater extent
than, the Debentures are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the
conveyance or transfer of its properties and assets substantially as an
entirety to another Person upon the terms and conditions set forth in Article
VIII shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of
assets and liabilities of the Company for the purposes of this Section if the
Person formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article VIII.
Section 15.3 Prior Payment to Senior Indebtedness Upon
Acceleration of Debentures. In the event that any Debentures are declared due
and payable before their Stated Maturity, then and in such event the holders of
Senior Indebtedness outstanding at the time the Debentures become due and
payable shall be entitled to receive payment in full of all amounts due or to
become due on or in respect of all Senior Indebtedness or provision shall be
made for such payment in cash, before the Holders of the Debentures are
entitled to receive any payment (including any payment which may be payable by
reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Debentures) by the Company on account of the
principal of (or premium, if any) or interest on the
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Debentures or on account of the purchase or other acquisition of Debentures;
provided, however, that nothing in this Section shall prevent the satisfaction
of any sinking fund payment in accordance with Article XII by delivering and
crediting pursuant to Section 12.2 Debentures which have been acquired (upon
redemption or otherwise) prior to such declaration of acceleration or which
have been converted pursuant to Article XIV.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Debenture prohibited
by the foregoing provisions of this Section, and if such fact shall, at or
prior to the time of such payment, have been made known to the Trustee or, as
the case may be, such Holder, then and in such event such payment shall be paid
over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 14.2 would be applicable.
Section 15.4 No Payment When Senior Indebtedness in Default.
In the event and during the continuation of any default by the Company in the
payment of principal, premium, interest or any other payment due on any Senior
Indebtedness of the Company, as the case may be, beyond any applicable grace
period with respect thereto, or in the event that the maturity of any Senior
Indebtedness of the Company, as the case may be, has been accelerated because
of a default, then, in any such case, no payment shall be made by the Company
with respect to the principal (including redemption and sinking fund payments)
of, or premium, if any, or interest on the Debentures until such default is
cured or waived or ceases to exist or any such acceleration or demand for
payment has been rescinded; provided, however, that nothing in this Section
shall prevent the satisfaction of any sinking fund payment in accordance with
Article XII by delivering and crediting pursuant to Section 12.2 Debentures
which have been acquired (upon redemption or otherwise) prior to such
declaration or acceleration or which have been converted pursuant to Article
XIV.
No payment shall be made with respect to the principal of, or
premium, if any, or interest on the Debentures if a default, other than a
payment default, on Designated Senior Indebtedness occurs and is continuing
that then permits the lenders to accelerate its maturity and the Trustee
receives a notice of the default (a "Payment Blockage Notice") from a
Representative or the Company. If the Trustee receives any Payment Blockage
Notice, no subsequent Payment Blockage Notice shall be effective for purposes
of this Section unless and until (a) at least 365 days shall have elapsed since
the initial effectiveness of the immediately prior Payment Blockage Notice, and
(b) all scheduled payments of principal, premium, if any, and interest on the
Debentures that have come due have been paid in full in cash. No nonpayment
default that existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent
Payment Blockage Notice.
The Company may and shall resume payments on and distributions in
respect of the Debentures upon the earlier of: (x) the date upon which the
default is cured or waived or ceases to exist or (y) 179 days pass after a
Payment Blockage Notice is received by the Trustee if the maturity of the
Designated Senior Indebtedness has not been accelerated, unless this Section
15.4 otherwise prohibits the payment or distribution at the time of such
payment or distribution.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee when such payment is prohibited by the
preceding paragraph of this Section 15.4, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness
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or their respective representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Senior Indebtedness may have been
issued, as their respective interests may appear, but only to the extent that
the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
The provisions of this Section shall not apply to any payment to
which Section 14.2 would be applicable.
Section 15.5 Payment Permitted in Certain Situations. Nothing
contained in this Article or elsewhere in this Indenture or in any of the
Debentures shall prevent (a) the Company, at any time except during the
pendency of any dissolution, winding-up, liquidation or reorganization of the
Company, whether voluntary or involuntary or any bankruptcy, insolvency,
receivership or other proceedings of the Company referred to in Section 15.2 or
under the conditions described in Section 15.3 or 15.4, from making payments at
any time of principal of or premium, if any, or interest on the Debentures, or
(b) the application by the Trustee of any money deposited with it hereunder to
the payment of or on account of the principal of, or premium, if any, or
interest on the Debentures or the retention of such payment by the Holders, if,
at the time of such application by the Trustee, it did not have knowledge that
such payment would have been prohibited by the provisions of this Article.
Section 15.6 Subrogation to Rights of Holders of Senior
Indebtedness. Subject to the payment in full of all Senior Indebtedness or the
provision for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Indebtedness, the rights of the Holders
of Debentures shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article (equally and ratably with the holders of
indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Debentures
are subordinated to the Senior Indebtedness and is entitled to like rights of
subrogation) to the rights of the holders of such Senior Indebtedness to
receive payments and distributions of cash, property and securities applicable
to the Senior Indebtedness until the principal of (and premium, if any) and
interest on the Debentures shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of
Debentures or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to or
for the benefit of the holders of Senior Indebtedness by Holders of Debentures
or the Trustee, shall, as among the Company, its creditors other than holders
of Senior Indebtedness and the Holders of Debentures, be deemed to be a payment
or distribution by the Company to or on account of the Senior Indebtedness.
Section 15.7 Provisions Solely to Define Relative Rights. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of Debentures on the one hand and
the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Debentures is intended to
or shall (a) impair, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of Debentures, the obligation of the
Company, which is absolute and unconditional (and which, subject to the rights
under this Article of the holders of Senior Indebtedness, is intended to rank
equally with all other general obligations of the Company), to pay to the
Holders of Debentures the principal of (and premium, if any) and interest on
the Debentures as and when the same shall become due and payable in accordance
with their terms; or (b) affect the relative rights against the Company of the
Holders of Debentures and
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creditors of the Company, as the case may be, other than the holders of Senior
Indebtedness; or (c) prevent the Trustee or the Holder of any Debenture from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
Section 15.8 Trustee to Effectuate Subordination. Each Holder
of a Debenture by such Holder's acceptance thereof authorizes and directs the
Trustee on such Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee such Holder's attorney-in-fact for any and all such
purposes.
Section 15.9 No Waiver of Subordination Provisions. No right
of any present or future holder of any Senior Indebtedness to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Debentures, without incurring responsibility to the Holders of Debentures and
without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of Debentures to the holders of Senior
Indebtedness do any one or more of the following: (a) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (b) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness; (c)
release any Person liable in any manner for the payment or collection of Senior
Indebtedness; and (d) exercise or refrain from exercising any rights against
the Company and any other Person.
Section 15.10 Notice to Trustee. The Company shall give prompt
written notice to a Responsible Officer of the Trustee located at the Corporate
Trust Office of any fact known to the Company which would prohibit the making
of any payment to or by the Trustee in respect of the Debentures pursuant to
the provisions of this Article. Notwithstanding the provisions of this Article
or any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Debentures pursuant to the
provisions of this Article, unless and until a Responsible Officer of the
Trustee shall have received at its Corporate Trust Office written notice
thereof from the Company or a holder or holders of Senior Indebtedness or from
any trustee therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 6.2, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall have not received the notice provided for in this Section at
least three Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of (or premium, if any) or interest on any
Debentures), then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such money and to
apply the same to the purposes for which they were received, and shall not be
affected by any notice to the contrary that may be received by it within three
Business Days prior to such date.
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Subject to the provisions of Section 6.2, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee therefor). In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of
any Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
Section 15.11 Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Section
6.2, and the Holders of Debentures shall be entitled to conclusively rely upon
any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Debentures, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, as the case may be, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
Section 15.12 Trustee Not Fiduciary for Holders of Senior
Indebtedness. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of such Senior Indebtedness shall be
read into the Indenture against the Trustee. Except with respect to Section
15.4, the Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Indebtedness and shall not be liable to any such holders or creditors
if it shall in good faith pay over or distribute to Holders of Debentures or to
the Company or to any other Person cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise.
Section 15.13 Rights of Trustee as Holder of Senior
Indebtedness, Preservation of Trustee's Rights. The Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article with
respect to any Senior Indebtedness which may at any time be held by it, to the
same extent as any other holder of Senior Indebtedness and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall subordinate to Senior Indebtedness
the claims of, or payments to, the Trustee under or pursuant to Section 6.6.
Section 15.14 Article Applicable to Paying Agents. In case at
any time any Paying Agent other than the Trustee shall have been appointed by
the Company and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided,
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however, that Section 14.13 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
Section 15.15 Certain Conversions Deemed Payment. For the
purposes of this Article only, (a) the issuance and delivery of junior
securities (or cash paid in lieu of fractional shares) upon conversion of
Debentures in accordance with Article XIV, or pursuant to the terms set forth
in an Officers' Certificate or established in one or more indentures
supplemental hereto in accordance with Section 3.1, 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 (b) the payment, issuance or delivery of cash, property or
securities (other than junior securities and cash paid in lieu of fractional
shares) 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,
the term "junior securities" means (i) shares of any stock of any class of the
Company and (ii) securities of the Company which are subordinated in right of
payment to all Senior Indebtedness which may be outstanding at the time of
issuance or delivery of such securities to substantially the same extent as, or
to a greater extent than, the Debentures are so subordinated as provided in
this Article. Nothing contained in this Article 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 Indebtedness and the Holders of
Debentures, the right, which is absolute and unconditional, of the Holder of
any Debenture to convert such Debenture in accordance with Article XIV.
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This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the day and year first above written.
EVI, INC.
By: /s/ James G. Kiley
------------------------------------
James G. Kiley, Vice President
and Chief Financial Officer
THE CHASE MANHATTAN BANK, AS TRUSTEE
By: /s/ W. B. Dodge
------------------------------------
Name: W. B. Dodge
-----------------------------------
Title: Vice President
-----------------------------------
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<PAGE> 1
EXHIBIT 4.2
=======================================
FIRST SUPPLEMENTAL INDENTURE
between
EVI, Inc.
and
The Chase Manhattan Bank
Dated as of October 28, 1997
========================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
Page
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE CONVERTIBLE DEBENTURES
SECTION 2.1. Designation and Principal Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
SECTION 2.2. Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
SECTION 2.3. Form and Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
SECTION 2.4. Exchange and Registration of Transfer of Convertible
Debentures; Restrictions on Transfers; Depositary . . . . . . . . . . . . . . . . . . . . . -6-
SECTION 2.5. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
SECTION 2.6. No Satisfaction and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
SECTION 2.7. Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
ARTICLE III
REDEMPTION OF THE CONVERTIBLE DEBENTURES
SECTION 3.1. Optional Redemption by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
SECTION 3.2. No Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
SECTION 4.2. Notice of Extension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
SECTION 4.3. Limitation of Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
SECTION 5.2. Payment Upon Resignation or Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
ARTICLE VI
CONVERSION OF CONVERTIBLE DEBENTURES
SECTION 6.1. Conversion Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
SECTION 6.2. Conversion Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
SECTION 6.3. Conversion Price Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-
SECTION 6.4. Merger, Consolidation, or Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . -21-
SECTION 6.5. Notice of Adjustments of Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . -22-
SECTION 6.6. Prior Notice of Certain Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-
SECTION 6.7. Certain Additional Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -24-
SECTION 6.8. Trustee Not Responsible for Determining Conversion
Price or Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -24-
ARTICLE VII
FORM OF CONVERTIBLE DEBENTURE
SECTION 7.1. Form of Convertible Debenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -25-
ARTICLE VIII
ORIGINAL ISSUE OF CONVERTIBLE DEBENTURES
SECTION 8.1. Original Issue of Convertible Debentures . . . . . . . . . . . . . . . . . . . . . . . . -40-
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture; First Supplemental Indenture
Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -40-
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C> <C>
Page
SECTION 9.2. Trustee Not Responsible for Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . -40-
SECTION 9.3. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -40-
SECTION 9.4. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -40-
SECTION 9.5. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -41-
</TABLE>
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<PAGE> 4
FIRST SUPPLEMENTAL INDENTURE, dated as of October 15, 1997
(the "First Supplemental Indenture"), between EVI, Inc., a Delaware corporation
(the "Company"), and The Chase Manhattan Bank, a New York banking corporation,
as trustee (the "Trustee") under the Indenture dated as of October 15, 1997
between the Company and the Trustee (the "Base Indenture" and together with the
First Supplemental Indenture, the "Indenture").
WHEREAS, the Company executed and delivered the Base Indenture
to the Trustee to provide for the future issuance of the Company's secured or
unsecured subordinated debt securities to be issued from time to time in one or
more series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
as provided in the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the
Company desires to provide for the establishment of a new series of its
Debentures to be known as its 5% Convertible Subordinated Preferred Equivalent
Debentures due 2027 (the "Convertible Debentures"), the form and substance of
such Convertible Debentures and the terms, provisions and conditions thereof to
be set forth as provided in the Base Indenture and this First Supplemental
Indenture;
WHEREAS, the Company has requested that the Trustee execute
and deliver this First Supplemental Indenture and all requirements necessary to
make this First Supplemental Indenture a valid instrument in accordance with
its terms, and to make the Convertible Debentures, when executed by the Company
and authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance
of the Convertible Debentures by the Holders thereof, and for the purpose of
setting forth, as provided in the Base Indenture, the form and substance of the
Convertible Debentures and the terms, provisions and conditions thereof, the
Company covenants and agrees with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
For all purposes of the First Supplemental Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(a) the terms which are defined in the Base Indenture
have the same meanings when used in this First Supplemental Indenture;
(b) the terms defined in this Article have the meaning
assigned to them in this Article and include the plural as well as the
singular;
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<PAGE> 5
(c) all other terms used herein which are defined in the
Trust Indenture Act, whether directly or by reference therein, have the
meanings assigned to them therein;
(d) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally accepted
accounting principles in the United States of America, 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 of America
at the date of such computation;
(e) a reference to a Section or Article is to a Section
or Article of this First Supplemental Indenture;
(f) the words "herein"' "hereof" and "hereunder" and
other words of similar import refer to this First Supplemental Indenture as a
whole and not to any particular Article, Section or other subdivision; and
(g) headings are for convenience of reference only and do
not affect interpretation.
"Additional Interest" means any interest agreed by the Company
to be paid on the Convertible Debentures in excess of the amount agreed to be
paid thereon pursuant to this Supplemental Indenture and the form of
Convertible Debenture, whether pursuant to a registration rights agreement or
otherwise.
"Applicable Price" means (i) in the event of a Non-Stock
Fundamental Change in which the holders of the Common Stock receive only cash,
the amount of cash received by a holder of one share of Common Stock and (ii)
in the event of any other Fundamental Change, the average of the daily Closing
Price for one share of Common Stock during the 10 Trading Days immediately
prior to the record date for the determination of the holders of Common Stock
entitled to receive cash, securities, property or other assets in connection
with such Fundamental Change or, if there is no such record date, prior to the
date upon which the holders of the Common Stock shall have the right to receive
such cash, securities, property or other assets the adjustment shall be based
upon the consideration that the holders of the Common Stock received in the
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 shall
constitute solely the right to receive, such cash, securities, property or
other assets.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Convertible Debentures 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 the Convertible
Debentures.
"Closing Price" of any common stock on any day shall mean the
last recorded sale price regular way on such day or, in case no such sale takes
place on such day, the average of the reported closing bid and asked prices
regular way of such common stock, in each case
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<PAGE> 6
on the New York Stock Exchange Composite Tape or, if the common stock is not
listed or admitted to trading on such exchange, on the principal national
securities exchange on which such common stock is listed or admitted to
trading, or, if not listed or admitted to trading on any national securities
exchange, the average of the closing bid and asked prices as furnished by any
New York Stock Exchange member firm 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.
"Common Stock" means the common stock, par value $1.00 per
share, of EVI, Inc., a Delaware corporation, and any other shares of common
stock as may constitute "Common Stock" under the Indenture.
"Common Stock Fundamental Change" means any Fundamental Change
in which more than 50% of the value (as determined in good faith by the Board
of Directors of the Company) of the consideration received by holders of Common
Stock consists of common stock that, for the 10 Trading Days immediately prior
to such Fundamental Change, has been admitted for listing or admitted for
listing subject to notice of issuance on a national securities exchange or
quoted on The Nasdaq National Market; provided, however, that a Fundamental
Change shall not be a Common Stock Fundamental Change unless either (i) the
Company continues to exist after the occurrence of such Fundamental Change and
the outstanding Convertible Debentures continue to exist as outstanding
Convertible Debentures, or (ii) not later than the occurrence of such
Fundamental Change, the outstanding Convertible Debentures are converted into
or exchanged for debentures of a corporation succeeding to the business of the
Company, which debentures have terms substantially similar to those of the
Convertible Debentures.
"Compounded Interest" shall have the meaning specified in
Section 4.1.
"Convertible Preferred Securities" has the meaning specified
in the recitals to this First Supplemental Indenture.
"Conversion Price" has the meaning set forth in Section 6.1.
"Deferred Interest" has the meaning specified in Section 4.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Extended Interest Payment Period" has the meaning specified
in Section 4.1.
"Fundamental Change" means the occurrence of any transaction
or event or series of transactions or events pursuant to which all or
substantially all of the Common Stock shall be exchanged for, converted into,
acquired for or shall constitute solely the right to receive cash, securities,
property or other assets (whether by means of an exchange offer, liquidation,
tender offer, consolidation, merger, combination, reclassification,
recapitalization or otherwise); provided, however, in the case of any such
series of transactions or events, 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 have been exchanged for, converted
into or acquired for, or shall constitute solely the right to receive, such
cash, securities, property or
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<PAGE> 7
other assets, but the adjustment shall be based upon the consideration that the
holders of Common Stock received in the transactions or events as a result of
which, taken together, more than 50% of the Common Stock shall have been
exchanged for, converted into or acquired for, or shall constitute solely the
right to receive, such cash, securities, property or other assets.
"Global Debenture" has the meaning specified in Section 2.4.
"Maturity Date" means the date on which the Convertible
Debentures mature and on which the principal shall be due and payable together
with all accrued and unpaid interest thereon including Compounded Interest and
Additional Interest, if any.
"Non-Stock Fundamental Change" means any Fundamental Change
other than a Common Stock Fundamental Change.
"Non-U.S. Person" means a Person other than a U.S. person (as
such term is defined in Regulation S).
"Optional Redemption Price" has the meaning specified in
Section 3.2.
"PORTAL Market" means the Private Offerings, Resales and
Trading through Automated Linkages Market operated by the National Association
of Securities Dealers, Inc., or any successor thereto.
"Purchaser Stock Price" means, with respect to any Common
Stock Fundamental Change, the average of the daily Closing Price for one share
of the common stock received by holders of Common Stock in such Common Stock
Fundamental Change during the 10 Trading Days immediately prior to the date
fixed for the determination of the holders of Common Stock entitled to receive
such common stock or, if there is no such date, prior to the date upon which
the holders of Common Stock shall have the right to receive such common stock.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Reference Market Price" initially means $43 and, in the event
of any adjustment to the Conversion Price other than as a result of a
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.
"Regulation S" means Regulation S under the Securities Act, or
any successor provision.
"Rule 144A" means Rule 144A as promulgated under the
Securities Act, or any successor rule.
"Rule 144(k)" means Rule 144(k) as promulgated under the
Securities Act, or any successor rule.
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<PAGE> 8
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Trading Day" shall mean a day on which any securities are
traded on the national securities exchange or quotation system used to
determine the Closing Price.
ARTICLE II
GENERAL TERMS AND CONDITIONS
OF THE CONVERTIBLE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Debentures designated
the "5% Convertible Subordinated Preferred Equivalent Debentures due 2027,"
limited in aggregate principal amount to $402,500,000, which amount shall be as
set forth in any written order of the Company for the authentication and
delivery of Convertible Debentures pursuant to Section 3.3 of the Base
Indenture.
SECTION 2.2. Maturity.
The Maturity Date is November 1, 2027.
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Convertible Debentures
shall be issued in fully registered certificated form without Coupons in
denominations of $50 in principal amount and integral multiples thereof.
Principal and interest on the Convertible Debentures issued in certificated
form will be payable, the transfer of such Convertible Debentures will be
registrable and such Convertible Debentures will be exchangeable for
Convertible Debentures bearing identical terms and provisions at the office or
agency of the Trustee; provided, however, that payment of interest may be made
at the option of the Company by check mailed to the Holder at such address as
shall appear in the Debenture Register. Notwithstanding the foregoing, so long
as the Holder of any Convertible Debentures is the Depositary, the payment of
the principal of and interest (including Compounded Interest and Additional
Interest, if any) on such Convertible Debentures held by the Depositary will be
made at such place and to such account as may be designated by the Depositary.
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<PAGE> 9
SECTION 2.4. Exchange and Registration of Transfer of Convertible
Debentures; Restrictions on Transfers; Depositary.
The Convertible Debentures will be issued in accordance with
the following procedures:
(a) So long as Convertible Debentures are eligible for
book-entry settlement with the Depositary, or unless otherwise required by law,
all Convertible Debentures that are so eligible may be represented by one or
more Convertible Debentures in global form registered in the name of the
Depositary or the nominee of the Depositary, except as otherwise specified
below. The transfer and exchange of beneficial interests in any such
Convertible Debenture in global form shall be effected through the Depositary
in accordance with the Indenture and the procedures of the Depositary therefor.
Convertible Debentures that are issued to QIBs will be
represented by a global Convertible Debenture (the "144A Global Debenture").
Convertible Debentures that are issued to Non-U.S. Persons will be represented
by a global Convertible Debenture (the "Regulation S Global Debenture"). Each
of the 144A Global Debenture and the Regulation S Global Debenture shall be
referred to herein as a Global Debenture. Convertible Debentures that are
issued to QIBs or to Non-U.S. Persons will be represented by definitive
Convertible Debentures as set forth in Section 2.4(b). If Global Debentures
are issued, transfers of interests in the Convertible Debentures between the
144A Global Debenture and the Regulation S Global Debenture will be made in
accordance with the standing instructions and procedures of the Depositary and
its participants and the Trustee shall make appropriate endorsements to reflect
increases or decreases in the principal amounts of such Global Debentures to
reflect any such transfers.
Except as provided below, beneficial owners of a Convertible
Debenture in global form shall not be entitled to have certificates registered
in their names, will not receive or be entitled to receive physical delivery of
certificates in definitive form and will not be considered Holders of such
Convertible Debentures in global form.
(b) So long as the Convertible Debentures are eligible
for book-entry settlement, and to the extent that Convertible Debentures are
held by QIBs or Non-U.S. Persons, as the case may be, in a Global Debenture, or
unless otherwise required by law, upon any transfer of a definitive Convertible
Debenture to a QIB in accordance with Rule 144A or to a Non-U.S. Person in
accordance with Regulation S, unless otherwise requested by the transferor, and
upon receipt of the definitive Convertible Debenture or Convertible Debentures
being so transferred, together with a certification from the transferor that
the transfer is being made in compliance with Rule 144A or Regulation S, as the
case may be (or other evidence satisfactory to the Trustee), the Trustee shall
make an endorsement on any 144A Global Debenture or any Regulation S Global
Debenture, as the case may be, to reflect an increase in the aggregate
principal amount of the Convertible Debentures represented by such Global
Debenture, and the Trustee shall cancel such definitive Convertible Debenture
or Convertible Debentures in accordance with the standing instructions and
procedures of the Depositary, the aggregate principal amount of Convertible
Debentures represented by such Global Debenture to be increased accordingly;
provided that no definitive Convertible Debenture, or portion thereof, in
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<PAGE> 10
respect of which the Company or an Affiliate of the Company held any beneficial
interest shall be included in such Global Debenture until such definitive
Convertible Debenture is freely tradable in accordance with Rule 144(k);
provided further that the Trustee shall, at the written request of the Company,
issue Convertible Debentures in definitive form upon any transfer of a
beneficial interest in the Global Debenture to the Company or any Affiliate of
the Company.
Any Global Debenture may be endorsed with or have incorporated
in the text thereof such legends or recitals or changes not inconsistent with
the provisions of the Indenture as may be required by the Depositary, by the
New York Stock Exchange or by the National Association of Securities Dealers,
Inc. in order for the Convertible Debentures to be tradeable on the PORTAL
Market or as may be required for the Convertible Debentures to be tradeable on
any other market developed for trading of securities pursuant to Rule 144A or
required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any securities exchange upon which the Convertible
Debentures may be listed or traded or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Convertible Debentures are subject.
(c) Each Convertible Debenture that bears or is required
to bear the legend set forth in this Section 2.4(c) (a "Restricted Security")
shall be subject to the restrictions on transfer provided in the legend set
forth in this Section 2.4(c), unless such restrictions on transfer shall be
waived by the written consent of the Company, and the Holder of each Restricted
Security, by such security holder's acceptance thereof, agrees to be bound by
such restrictions on transfer. As used in this Section 2.4(c) and in Section
2.4(d), the terms "transfer" encompasses any sale, pledge, transfer or other
disposition of any Restricted Security.
Prior to the Transfer Restriction Termination Date, any
certificate evidencing a Convertible Debenture shall bear a legend in
substantially the following form, unless otherwise agreed by the Company (with
written notice thereof to the Trustee):
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN OFFSHORE
TRANSACTION, (2) AGREES THAT IT WILL NOT, PRIOR TO THE EXPIRATION OF
THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED
HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY
OR THE COMMON
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<PAGE> 11
STOCK, IF ANY, ISSUABLE UPON CONVERSION OR EXCHANGE OF SUCH SECURITY
EXCEPT (A) TO EVI, INC., ("THE COMPANY") OR ANY SUBSIDIARY THEREOF,
(B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO THE CHASE MANHATTAN BANK, AS TRUSTEE (OR A
SUCCESSOR TRUSTEE, AS APPLICABLE) (OR, IF THIS CERTIFICATE EVIDENCES
COMMON STOCK, THE TRANSFER AGENT FOR THE COMMON STOCK), A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE, SUCCESSOR
TRUSTEE OR TRANSFER AGENT AND THE COMPANY), (D) OUTSIDE THE UNITED
STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT
(AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER);(3)
PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(F)
ABOVE), AGREES THAT IT WILL FURNISH TO THE CHASE MANHATTAN BANK, AS
TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE OR
THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND
(4) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITY
EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST
CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO
THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE CHASE
MANHATTAN BANK, AS TRUSTEE (OR, IF THIS CERTIFICATE EVIDENCES COMMON
STOCK, SUCH HOLDER MUST FURNISH TO THE TRANSFER AGENT SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT). IF THIS CERTIFICATE
DOES NOT
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<PAGE> 12
EVIDENCE COMMON STOCK AND THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR OR A PURCHASER WHO IS NOT A U.S. PERSON, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE CHASE MANHATTAN
BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), AND THE
COMPANY, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
IT OR THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER
IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS
LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE
SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE 2(F) ABOVE OR UPON ANY
TRANSFER OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION). AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Following the Transfer Restriction Termination Date or the
sale of a Debenture pursuant to an effective registration statement or Rule 144
(or any successor provision) under the Securities Act, any Convertible
Debenture or security issued in exchange or substitution therefor (other than
(i) Convertible Debentures acquired by the Company or any Affiliate thereof and
(ii) Common Stock issued upon the conversion or exchange of any Convertible
Debenture described in clause (i) above) may upon surrender of such Convertible
Debenture for exchange to the security Registrar in accordance with the
provisions of this Section 2.4, be exchanged for a new Convertible Debenture or
Convertible Debentures, of like tenor and aggregate principal amount, which
shall not bear the restrictive legend required by this Section 2.4(c).
Notwithstanding any other provisions of the Indenture (other
than the provisions set forth in this Section 2.4(c)), a Global Debenture may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee to a successor Depositary or a nominee of such successor Depositary.
The Depositary shall be a clearing agency registered under the
Exchange Act. The Company initially appoints The Depository Trust Company to
act as Depositary with respect to the Convertible Debentures in global form.
Initially, the Global Debentures shall be issued to the Depositary, registered
in the name of Cede & Co., as the nominee of the Depositary, and deposited with
the Trustee as custodian for Cede & Co.
If at any time the Depositary for the Global Debentures
notifies the Company that it is unwilling or unable to continue as Depositary
for such Convertible Debentures, the Company may appoint a successor Depositary
with respect to such Convertible Debentures. If a successor Depositary for the
Convertible Debentures is not appointed by the Company within 90 days after the
Company receives such notice, the Company will execute, and the Trustee, upon
receipt of an Officers' Certificate for authentication and delivery of
Convertible
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<PAGE> 13
Debentures, will authenticate and deliver, Convertible Debentures in definitive
form, in an aggregate principal amount equal to the principal amount of the
Global Debentures, in exchange for the such Global Debentures.
Definitive Convertible Debentures issued in exchange for all
or a part of a Global Debenture pursuant to this Section 2.4(c) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. Upon execution and authentication,
the Trustee shall deliver such definitive Convertible Debentures to the person
in whose names such definitive Convertible Debentures are so registered.
At such time as all interests in a Global Debenture have been
redeemed, converted, exchanged, repurchased or canceled, such Global Debenture
shall be, upon receipt thereof, canceled by the Trustee in accordance with
standing procedures and instructions of the Depositary. At any time prior to
such cancellation, if any interest in a Global Debenture is exchanged for
definitive Convertible Debentures, redeemed, converted, exchanged, repurchased
by the Company pursuant to Article III or canceled, or transferred for part of
a Global Debenture, the principal amount of such Global Debenture shall, in
accordance with the standing procedures and instructions of the Depositary be
reduced or increased, as the case may be, and an endorsement shall be made on
such Global Debenture by, or at the direction of, the Trustee to reflect such
reduction or increase.
(d) Any Convertible Debenture or Common Stock issued upon
the conversion or exchange of a Convertible Debenture that, prior to the
Transfer Restriction Termination Date, is purchased or owned by the Company or
any Affiliate thereof may not be resold by the Company or such Affiliate unless
registered under the Securities Act or resold pursuant to an exemption from the
registration requirements of the Securities Act in a transaction which results
in such Convertible Debentures or Common Stock, as the case may be, no longer
being "restricted securities" (as defined under Rule 144).
SECTION 2.5. Interest.
(a) Each Convertible Debenture will bear interest at the
rate of 5% per annum (the "Coupon Rate") from November 3, 1997 until the
principal thereof becomes due and payable, and on any overdue principal and (to
the extent that payment of such interest is enforceable under applicable law)
on any overdue installment of interest at the Coupon Rate, compounded
quarterly, payable (subject to the provisions of Article IV) quarterly in
arrears on February 1, May 1, August 1, and November 1 of each year (each, an
"Interest Payment Date), commencing on February 1, 1998, to the Person in whose
name such Convertible Debenture or any predecessor Convertible Debenture 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
prior to that Interest Payment Date.
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period shorter than a full quarterly period for which interest is computed,
will be computed on the basis of the actual number of days elapsed per
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<PAGE> 14
30-day month. In the event that any date on which interest is payable on the
Convertible Debentures is not a Business Day, then payment of 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, in each case
with the same force and effect as if made on such date.
SECTION 2.6. No Satisfaction and Discharge.
The Convertible Debentures are not entitled to the benefit of
the Satisfaction and Discharge Provisions of Sections 4.3, 4.4, 4.5, and 4.6 of
the Base Indenture.
SECTION 2.7. Subordination.
The subordination terms of the Debentures are as set forth in
Article 15 of the Base Indenture, which terms are incorporated herein by
reference.
ARTICLE III
REDEMPTION OF THE CONVERTIBLE DEBENTURES
SECTION 3.1. Optional Redemption by Company. Subject to the provisions of
Article XI of the Base Indenture, except as otherwise may be specified
elsewhere in this First Supplemental Indenture, the Company shall have the
right to redeem the Convertible Debentures, in whole or in part, from time to
time, on or after November 4, 2000. 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 Convertible Debentures, at the following prices (expressed as
percentages of the principal amount of the Convertible Debentures) (the
"Optional Redemption Price") together with accrued and unpaid interest,
including Compounded and Additional Interest to, but excluding, the Redemption
Date, if redeemed during the 12-month period beginning November 1:
<TABLE>
<CAPTION>
Year Redemption Price
---- ----------------
<S> <C>
2000 103.5%
2001 103.0
2002 102.5
2003 102.0
2004 101.5
2005 101.0
2006 100.5
</TABLE>
and 100% if redeemed on or after November 1, 2007.
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<PAGE> 15
If Convertible Debentures are redeemed on any February 1, May
1, August 1 or November 1, accrued and unpaid interest shall be payable to
holders of record on the relevant Regular Record Date.
If the Convertible Debentures are only partially redeemed
pursuant to this Section 3.1, the Convertible Debentures will be selected for
redemption by any method utilized by the Trustee. The Optional Redemption
Price, together with any required interest payment, shall be paid prior to
12:00 noon, New York time, on the Redemption Date or at such earlier time as
the Company determines provided that the Company shall deposit with the Trustee
an amount sufficient to pay the Optional Redemption Price, together with any
required interest payment, by 10:00 a.m., New York time, on the date such
amounts are to be paid.
SECTION 3.2. No Sinking Fund.
The Convertible Debentures are not entitled to the benefit
of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
As long as an Event of Default under Section 5.1(a) of the
Base 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
Convertible Debentures, to defer payments of interest by extending the interest
payment period of such Convertible Debentures for a period not exceeding 20
consecutive quarters (the "Extended Interest Payment Period"), during which
Extended Interest Payment Period no interest shall be due and payable; provided
that an Extended Interest Payment Period must commence and end on an Interest
Payment Date and no Extended Interest Payment Period may extend beyond the
Maturity Date or any earlier Redemption Date. To the extent permitted by
applicable law, interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this Section 4.1, will
bear interest thereon at the Coupon Rate compounded quarterly for each quarter
of the Extended Interest Payment Period ("Compounded Interest"). On the next
day following the last day of the Extended Interest Payment Period, the Company
shall pay all interest accrued and unpaid on the Convertible Debentures,
including any Additional Interest and Compounded Interest (together, "Deferred
Interest") that shall be payable to the Holders of the Convertible Debentures
in whose names the Convertible Debentures are registered in the Debenture
Register on the first Regular Record Date after the end of the Extended
Interest Payment Period. Before the termination of any Extended Interest
Payment Period, the Company may further extend such period, provided that such
period together with all such further extensions thereof shall not exceed 20
consecutive quarters, or extend beyond the Maturity Date or any earlier
Redemption Date. Upon the termination of any Extended Interest Payment Period
and upon the payment of all Deferred Interest then due, the Company may
commence a new Extended Interest Payment Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extended Interest
Payment Period, except at the end thereof, but the Company may prepay at any
time all or any portion of the interest accrued during an Extended Interest
Payment Period.
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<PAGE> 16
SECTION 4.2. Notice of Extension.
(a) The Company shall give the Holders of the Convertible
Debentures and the Trustee written notice of its selection of such Extended
Interest Payment Period at least 15 Business Days before the earlier of (i) the
next succeeding Regular Record Date or (ii) the date the Company is required to
give notice of the record or payment date of such interest payment to the New
York Stock Exchange or other applicable self-regulatory organization or to
Holders of the Convertible Debentures.
(b) The quarter in which any notice is given pursuant to
paragraph (a) of this Section 4.2 shall be counted as one of the 20 consecutive
quarters permitted in the maximum Extended Interest Payment Period permitted
under Section 4.1.
SECTION 4.3. Limitation of Transactions.
If the Company shall exercise its right to defer payment of
interest as provided in Section 4.1, then (i) the Company shall not declare or
pay any dividends on, make any distributions with respect to, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
capital stock (other than (A) as a result of a reclassification of its capital
stock or the exchange or conversion of one class or series of its capital stock
for another class or series of its capital stock or, (B) the purchase of
fractional interests in shares of its capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or
exchanged) for Company capital stock, or (C) purchases or acquisitions of
shares of the Company's capital stock in connection with the satisfaction by
the Company of its obligations under any employee benefit plans, provided that
no purchases of Common Stock may be made by the Company with cash other than
pursuant to trust arrangements entered into in connection with such plans, or
(D) acquisitions of capital stock pursuant to purchase price adjustments and
indemnification provisions under acquisition agreements), (ii) the Company
shall not make any payment of interest, principal or premium, if any, on or
repay, repurchase or redeem any debt securities issued by the Company which
rank pari passu with or junior to the Convertible Debentures and (iii) the
Company shall not make any guarantee payments with respect to the foregoing.
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of the
Convertible Debentures, the Company, in its capacity as borrower with respect
to the Convertible Debentures, shall pay all costs and expenses relating to the
offering, sale and issuance of the Convertible Debentures, including
commissions to the purchasers payable pursuant to the Placement Agreement and
compensation of the Trustee under the Indenture in accordance with the
provisions of Section 6.6 of the Base Indenture.
SECTION 5.2. Payment Upon Resignation or Removal.
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<PAGE> 17
Upon termination of this First Supplemental Indenture or the
Base Indenture or the removal or resignation of the Trustee pursuant to Section
6.7 of the Base Indenture, the Company shall pay to the Trustee all amounts
accrued to the date of such termination, removal or resignation.
ARTICLE VI
CONVERSION OF CONVERTIBLE DEBENTURES
SECTION 6.1. Conversion Rights.
Subject to and upon compliance with the provisions of this
Article VI, the Convertible Debentures are convertible, at the option of the
Holder, at any time beginning 90 days following the date of original issue of
the Debentures through the close of business on October 31, 2027 (or, in the
case of Convertible Debentures called for redemption, prior to the close of
business on the Business Day prior to the corresponding Redemption Date) into
fully paid and nonassessable shares of Common Stock of the Company at an
initial conversion rate of .625 shares of Common Stock for each $50 in
aggregate principal amount of Convertible Debentures (equal to a conversion
price of $80 per share of Common Stock (the "Conversion Price")), subject to
adjustment as described in this Article VI. A Holder of Convertible Debentures
may convert any portion of the principal amount of the Convertible Debentures
(in integral multiples of $50) into that number of fully paid and nonassessable
shares of Common Stock obtained by dividing the principal amount of the
Convertible Debentures to be converted by such Conversion Price. All
calculations under this Article VI shall be made to the nearest cent or to the
nearest 1/100th of a share, as the case may be.
SECTION 6.2. Conversion Procedures.
(a) In order to convert all or a portion of the
Convertible Debentures, the Holder thereof shall deliver to the Conversion
Agent an irrevocable Notice of Conversion setting forth the principal amount of
Convertible Debentures to be converted, together with the name or names, if
other than the Holder, in which the shares of Common Stock should be issued
upon conversion and, if such Convertible Debentures are definitive Convertible
Debentures, surrender to the Conversion Agent the Convertible Debentures to be
converted, duly endorsed or assigned to the Company or in blank.
If a Notice of Conversion is delivered on or after the Regular
Record Date and prior to the subsequent Interest Payment Date, the Holder will
be entitled to receive the interest payable on the subsequent Interest Payment
Date on the portion of Convertible Debentures to be converted notwithstanding
the conversion thereof prior to such Interest Payment Date. However, if a
Redemption Date falls between a Regular Record Date and the subsequent Interest
Payment Date, the Holder will be entitled to receive, on such Interest Payment
Date, the interest accrued to, but excluding, the Redemption Date. Except as
otherwise provided in the first and second sentences of this paragraph, in the
case of any Convertible Debenture which is converted, interest whose Stated
Maturity is after the date of conversion of such Convertible 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 Convertible
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<PAGE> 18
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. The Person or
Persons entitled to receive the Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder or holders of such
Common Stock as of the Conversion Date. 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 Convertible Debentures are
convertible (together with the cash payment, if any, in lieu of fractional
shares) shall be deemed to satisfy the Company's obligation to pay the
principal amount at Maturity of the portion of Convertible Debentures so
converted and any unpaid interest (including Compounded Interest) accrued on
such Convertible 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 of such fractional interest on the date on which the
Convertible Debentures were duly surrendered to the Conversion Agent for
conversion, or, if such day is not a Trading Day, on the next Trading Day, and
the Conversion Agent in turn will make such payment, if any, to the Holder of
the Convertible Debentures or the holder of the Convertible Preferred
Securities so converted.
(d) In the event of the conversion of any Convertible
Debenture in part only, a new Convertible Debenture or Convertible Debentures
for the unconverted portion thereof will be issued in the name of the Holder
thereof upon the cancellation thereof in accordance with Section 14.2 of the
Base Indenture.
(e) In effecting the conversion transactions described
in this Section 6.2, the Conversion Agent is acting as agent of the Holders of
Convertible Debentures (in the conversion of Convertible Debentures into Common
Stock).
SECTION 6.3. Conversion Price Adjustments.
The Conversion Price shall be adjusted from time to time as
follows:
(a) In case the Company shall, while any of the
Convertible Debentures are outstanding, (i) pay a dividend or make a
distribution with respect to Common Stock in shares of Common Stock, (ii)
subdivide outstanding shares of Common Stock, (iii) combine outstanding shares
of Common Stock into a smaller number of shares or (iv) issue by
reclassification of its shares of Common Stock any shares of capital stock of
the Company, the conversion privilege and the Conversion Price for the
Convertible Debentures shall be adjusted so that the Holder of any Convertible
Debenture thereafter surrendered for conversion shall be entitled to receive
the
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<PAGE> 19
number of shares of capital stock of the Company which such Holder would have
owned immediately following such action had such Convertible Debenture 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 Convertible Debenture
thereafter surrendered for conversion shall become entitled to receive shares
of two or more classes or series of capital stock of the Company, the Board of
Directors (whose determination shall be conclusive and shall be described in a
Board Resolution filed with the Trustee) shall determine the allocation of the
adjusted Conversion Price for the Convertible Debentures between or among
shares of such classes or series of capital stock.
(b) In case the Company shall, while any of the
Convertible 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 (as determined pursuant to subsection (g) below) on the record
date mentioned below, the Conversion Price for the Convertible 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 on the date of issuance of such
rights or warrants plus the number of shares which the aggregate offering price
of the total number of shares so offered for subscription or purchase would
purchase at such current market price, and of which the denominator shall be
the number of shares of Common Stock outstanding on the date of issuance of
such rights or warrants plus the number of additional shares of Common Stock
offered for subscription or purchase. Such adjustment shall become effective
immediately after the record date for the determination of stockholders
entitled to receive such rights or warrants. To the extent that no shares of
Common Stock are so delivered after the expiration of such rights or warrants,
the Conversion Price shall be readjusted to the Conversion Price which would
then be in effect if such date fixed for the determination of stockholders
entitled to receive such rights or warrants had not been fixed. For the
purposes of this subsection, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company. The
Company shall not issue any rights or warrants in respect of shares of Common
Stock held in the treasury of the Company. In case any rights or warrants
referred to in this subsection in respect of which an adjustment shall have
been made shall expire unexercised within 45 days after the same shall have
been distributed or issued by the Company, the Conversion Price shall be
readjusted at the time of such expiration to the Conversion Price that would
have been in effect if no adjustment had been made on account of the
distribution or issuance of such expired rights or warrants.
(c) Subject to the last sentence of this 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 or rights or warrants to subscribe for
or purchase any of its securities (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 subsection (a) of this Section
6.3), the Conversion Price shall be
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<PAGE> 20
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 (c) by a fraction of
which the numerator shall be the current market price per share (determined as
provided in subsection (g)) of the Common Stock on the date fixed for the
payment of such distribution (the "Reference Date") less the fair market value
(as determined in good faith by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of Directors),
on the Reference Date, of the portion of the evidences of indebtedness, shares
of capital stock, cash and assets so distributed or of such subscription rights
or warrants 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; provided, however, that in the event the
numerator shall be less than one, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Holder of Convertible Debentures shall
have the right to receive upon conversion the amount of such distribution such
Holder would have received had such Holder converted each Convertible Debenture
immediately prior to the Reference Date. In the event that no such dividend or
distribution is 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. If the Board of Directors determines the fair
market value of any distribution for purposes of this subsection (c) by
reference to the actual or when issued trading market for any securities
comprising such distribution, it must in doing so consider the prices in such
market over the same period used in computing the current market price per
share of Common Stock (determined as provided in subsection (g)). 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 subsection (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 (A) the Reference Date of such dividend or
distribution as defined in this subsection (c) shall be substituted as (1) "the
record date in the case of a dividend or other distribution," and (2) "the
record date for the determination of stockholders entitled to receive such
rights or warrants" and (3) "the date fixed for such determination" within the
meaning of subsections (a) and (b) and (B) 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 any
quarterly cash dividend on Common Stock to the extent that the aggregate cash
dividend per share of Common Stock in any quarter does not exceed the greater
of (i) the amount per share of Common Stock of the next preceding quarterly
dividend on Common Stock to the extent such preceding quarterly dividend did
not require an adjustment of the Conversion Price pursuant to this subsection
(d) (as adjusted to reflect subdivisions or combinations of Common Stock), and
(ii) 3.75% of the current market price per share determined as provided in
subsection (g), and excluding any dividend or distribution in connection with
the liquidation, dissolution or winding-up of the Company), 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
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<PAGE> 21
Conversion Price reduction contemplated by this subsection (d) by a fraction of
which the numerator shall be the current market price per share (determined as
provided in subsection (g)) of the Common Stock on the date fixed for the
payment of such distribution less the amount of cash so distributed (and not
excluded as provided above) applicable to one share of Common Stock and the
denominator shall be such current market price per share of the Common Stock
(determined as provided in subsection (g)), 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 (as
defined in subsection (g)) of the Common Stock on the record date mentioned
above, in lieu of the foregoing adjustment, adequate provision shall be made so
that each Holder of shares of Convertible Debentures shall have the right to
receive upon conversion the amount of cash such Holder would have received had
such Holder converted each Convertible Debenture immediately prior to the
record date for the distribution of the cash. If an adjustment is required to
be made pursuant to this subsection (d) as a result of a distribution that is a
quarterly dividend, such adjustment shall be based upon the amount by which
such distribution exceeds the amount of the quarterly cash dividend permitted
to be excluded as provided above. If an adjustment is required to be made
pursuant to this subsection (d) as a result of a distribution that is not a
quarterly dividend, such adjustment shall be based upon the full amount of the
distribution. In the event that no such dividend or distribution is 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 Company's Common Stock shall expire and such tender or
exchange offer shall involve the payment by the Company or such subsidiary of
consideration per share of Common Stock having a fair market value (as
determined in good faith by the Board of Directors, whose determination shall
be conclusive and described in a resolution of the Board of Directors) at the
last time (the "Expiration Time") tenders or exchanges may be made pursuant to
such tender or exchange offer (as it shall have been amended) that exceeds the
Closing Price 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 (which shall not be greater
than one) of which the numerator shall be the number of shares of Common Stock
outstanding (including any tendered or exchanged shares) at the Expiration Time
multiplied by the Closing Price of the Common Stock on the Trading Day next
succeeding the Expiration Time and the denominator shall be the sum of (i) 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")
and (ii) the product of the number of shares of Common Stock outstanding (less
any Purchased Shares) at the Expiration Time and the Closing Price of the
Common Stock on the Trading Day next succeeding the Expiration Time, such
reduction to become retroactively effective immediately prior to the opening of
business on the day following the Expiration Time.
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<PAGE> 22
(f) In case a tender or exchange offer made by a Person
other than 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 a Person other than the Company or any Subsidiary of the
Company of consideration per share of Common Stock having a fair market value
(as determined in good faith by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of Directors) at
the applicable Expiration Time that exceeds the Closing Price of the Common
Stock on the Trading Day next succeeding the applicable Expiration Time in
which as of the closing date of the offer the Board of Directors of the Company
is not recommending rejection of the offer, 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 (f) by a fraction
(which shall not be greater than one) of which the numerator shall be the
number of shares of Common Stock outstanding (including any tendered or
exchanged shares) at the Expiration Time multiplied by the Closing Price of the
Common Stock on the Trading Day next succeeding the Expiration Time and the
denominator shall be the sum of (i) 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") and, (ii) the product of the number of
shares of Common Stock outstanding (less any Purchased Shares) at the
Expiration Time and the Closing Price of the Common Stock on the Trading Day
next succeeding the Expiration Time, such reduction to become retroactively
effective immediately prior to the opening of business on the day following the
Expiration Time; provided, however, that the reduction of the Conversion Price
contemplated by this subsection (f) will only be made if the tender offer or
exchange offer is made for an amount which increases that Person's ownership of
Common Stock to more than 25% of the total shares of Common Stock outstanding
and provided, further, that the reduction of the Conversion Price contemplated
by this subsection (f) will not be made if as of the close of the offer, the
offering documents with respect to such offer disclose a plan or an intention
to cause the Company to engage in a consolidation or merger of the Company or a
sale of all or substantially all of the assets of the Company.
(g) For the purpose of any computation under subsection
(b), (c) or (d), the current market price per share of Common Stock on any date
in question shall be deemed to be the average of the daily Closing Prices for
the ten Trading Day period ending on the earlier of the day in question and, if
applicable, the day before the "ex" date with respect to the issuance or
distribution requiring such computation; provided, however, that if more than
one event occurs that would require an adjustment pursuant to subsections (a)
through (f), inclusive, the Board of Directors may make such adjustments to the
Closing Prices during such ten Trading Day period as it deems appropriate to
effectuate the intent of the adjustments in this Section 6.3, in which case any
such determination by the Board of Directors shall be set forth in a Board
Resolution and shall be conclusive. For purposes of this paragraph, the term
"ex" date, (1) when used with respect to any issuance or distribution, means
the first date on which the Common Stock trades regular way on the New York
Stock Exchange or on such successor securities exchange as the Common Stock may
be listed or in the relevant market from which the Closing Prices were obtained
without the right to receive such issuance or distribution, and (2) when used
with respect to any tender or exchange offer means the first date on which the
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<PAGE> 23
Common Stock trades regular way on such securities exchange or in such market
after the Expiration Time of such offer.
(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 twenty (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 interest 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 Convertible 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) 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 (i) are not required to be made shall be carried
forward and taken into account in determining whether any subsequent adjustment
shall be required.
(j) If any action would require adjustment of the
Conversion Price pursuant to more than one of the provisions described above,
only one adjustment shall be made and such adjustment shall be the amount of
adjustment that has the highest absolute value to the Holder of Convertible
Debentures.
SECTION 6.4. Merger, Consolidation, or Sale of Assets.
(a) In the event that the Company shall be a party to any
transaction (including without limitation (i) any recapitalization or
reclassification of the 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 the Common Stock), (ii) any consolidation of
the Company with, or merger of the Company into, any other Person, any merger
of another Person into the Company (other than a merger which does not result
in a reclassification, conversion, exchange or cancellation of outstanding
shares of Common Stock of the Company), (iii) any sale or transfer of all or
substantially all of the assets of the Company or (iv) any compulsory share
exchange) pursuant to which either shares of Common Stock shall be converted
into the right to receive other securities, cash or other property, or, in the
case of a sale or transfer of all or substantially all of the assets of the
Company, the holders of Common Stock shall be entitled to receive other
securities, cash or other property, then lawful provision shall be made as part
of the terms of such transaction whereby the Holder of each Convertible
Debenture then outstanding shall have the right thereafter to convert such
Convertible Debenture only into:
(A) in the case of any such transaction that does not
constitute a Common Stock Fundamental Change and subject to funds
being legally available for such purpose
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<PAGE> 24
under applicable law at the time of such conversion, the kind and
amount of the securities, cash or other property that would have been
receivable upon such recapitalization, reclassification,
consolidation, merger, sale, transfer or share exchange by a holder of
the number of shares of Common Stock issuable upon conversion of such
Convertible Debenture immediately prior to such recapitalization,
reclassification, consolidation, merger, sale, transfer or share
exchange, after giving effect, in the case of any Non-Stock
Fundamental Change (as defined below), to any adjustment in the
Conversion Price in accordance with clause (i) of subsection (c) of
this Section 6.4; and
(B) in the case of any such transaction that constitutes
a Common Stock Fundamental Change, common stock of the kind received
by holders of Common Stock as a result of such Common Stock
Fundamental Change in an amount determined in accordance with clause
(ii) of subsection (c) of this Section 6.4.
(b) The company or the Person formed by such
consolidation or resulting from such merger or which acquired such assets or
which acquires the Company's shares, as the case may be, shall make provision
in its certificate or articles of incorporation or other constituent document
to establish such right. Such certificate or articles of incorporation or
other constituent document shall provide for adjustments which, for events
subsequent to the effective date of such certificate or articles of
incorporation or other constituent document, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article VI. The
above provisions shall similarly apply to successive transactions of the
foregoing type.
(c) Notwithstanding any other provision of this Section
6.4 to the contrary, if any Fundamental Change occurs, then the Conversion
Price in effect will be adjusted immediately after such Fundamental Change as
follows:
(i) in the case of a Non-Stock Fundamental Change, the
Conversion Price of the Convertible Debentures immediately following
such Non-Stock Fundamental Change shall be the lower of (A) the
Conversion Price in effect immediately prior to such Non-Stock
Fundamental Change, but after giving effect to any other prior
adjustments effected pursuant Section 6.3, and (B) the product of (1)
the greater of the Applicable Price and the then applicable Reference
Market Price and (2) a fraction, the numerator of which is $50 and the
denominator of which is (x) the amount of the Optional Redemption
Price set forth in Section 3.1 for $50 in principal amount of
Convertible Debentures if the redemption date were the date of such
Non-Stock Fundamental Change (or, for the twelve-month periods
commencing November 1, 1997, November 1, 1998 and November 1, 1999,
the product of 105.0%, 104.5%, and 104.0% respectively, times $50)
plus (y) any then-accrued and unpaid interest on $50 principal amount
of Convertible Debentures; and
(ii) in the case of a Common Stock Fundamental Change, the
Conversion Price of the Convertible Debentures immediately following
such Common Stock Fundamental Change shall be the Conversion Price in
effect immediately prior to such Common Stock Fundamental Change, but
after giving effect to any other prior adjustments effected pursuant
to Section 6.3, multiplied by a fraction, the numerator of which is
the Purchaser Stock Price and the denominator of which is the
Applicable Price; provided, however,
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<PAGE> 25
that in the event of a Common Stock Fundamental Change in which (A)
100% of the value of the consideration received by a holder of Common
Stock is common stock of the successor, acquiror or other third party
(and cash, if any, paid with respect to any fractional interests in
such common stock resulting from such Common Stock Fundamental Change)
and (B) all of the Common Stock shall have been exchanged for,
converted into or acquired for, common stock of the successor,
acquiror or other third party (and any cash with respect to fractional
interests), the Conversion Price of the Convertible Debentures
immediately following such Common Stock Fundamental Change shall be
the Conversion Price in effect immediately prior to such Common Stock
Fundamental Change multiplied by a fraction, the numerator of which is
one (1) and the denominator of which is the number of shares of common
stock of the successor, acquiror or other third party received by a
holder of one share of Common Stock as a result of such Common Stock
Fundamental Change.
SECTION 6.5. Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion
Price and shall prepare a certificate signed by the Chief Financial Officer or
the Treasurer of the Company setting forth the adjusted Conversion Price and
showing in reasonable detail the facts upon which such adjustment is based, and
such certificate shall forthwith be filed with the Trustee and the transfer
agent for the Convertible Preferred Securities and the Convertible 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 Convertible
Preferred Securities and the Convertible Debentures at their last addresses as
they appear upon the transfer books of the Company and the Trust.
SECTION 6.6. Prior Notice of Certain Events.
In case:
(a) the Company shall (i) declare any dividend (or any
other distribution) on its Common Stock, other than (A) a dividend payable in
shares of Common Stock or (B) a dividend payable in cash that would not require
an adjustment pursuant to Section 6.3(c) or (d) or (ii) authorize a tender or
exchange offer that would require an adjustment pursuant to Section 6.3(e);
(b) the Company shall authorize the granting to all
holders of Common Stock of rights or warrants to subscribe for or purchase any
shares of stock of any class or series or of any other rights or warrants;
(c) 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 any stockholders of the Company shall be
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<PAGE> 26
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
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall cause to be mailed to all Holders at their last
addresses as they shall appear in the Debenture Register (and shall cause the
Depositary to mail such notice to the beneficial holders of the Convertible
Debentures appearing on the books of the Depositary), at least 15 days prior to
the applicable record or effective date hereinafter specified, a notice stating
(A) 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 or (B) the
date on which such reclassification, consolidation, merger, sale, transfer,
share exchange, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up (but no failure to mail such notice or any defect therein or in
the mailing thereof shall affect the validity of the corporate action required
to be specified in such notice).
SECTION 6.7. Certain Additional Rights.
In case the Company shall, by dividend or otherwise, declare
or make a distribution on the Common Stock referred to in Section 6.3 (c) or
6.3(d) (including, without limitation, dividends or distributions referred to
in the last sentence of Section 6.3(e)), the Holder of the Convertible
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 Convertible 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 (whose election shall be evidenced by a resolution of
the Board of Directors) with respect to all Holders so converting, the Company
may, in lieu of distributing to such Holder any portion of such distribution
not consisting of cash or securities of the Company, pay such Holder an amount
in cash equal to the fair market value thereof (as determined in good faith by
the Board of Directors, whose determination shall be conclusive and described
in a resolution of the Board of Directors). If any conversion of Convertible
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
Convertible Debentures so converted is entitled to receive in accordance with
the immediately preceding sentence, the Company may elect (such election to be
evidenced by a resolution of the Board of Directors) to distribute to such
Holder a due 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
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<PAGE> 27
(a) meets any applicable requirements of the principal national securities
exchange or other market on which the Common Stock is then traded and (b)
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 6.8. 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 Convertible 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 this
supplemental indenture need be entered into. Neither the Trustee nor any
Conversion Agent shall be accountable with respect to the validity or value (or
the kind of account) of any shares of Common Stock or of any securities or
property, which may at any time be issued or delivered upon the conversion of
any Convertible Debenture; and neither the Trustee nor any Conversion Agent
makes any representation with respect thereto. Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Company to make
any cash payment or to issue, transfer or deliver any shares of Common Stock or
stock certificates or other securities or property upon the surrender of any
Convertible Debenture for the purpose of conversion.
ARTICLE VII
FORM OF CONVERTIBLE DEBENTURE
SECTION 7.1. Form of Convertible Debenture.
The Convertible Debentures and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the following
forms:
[(FORM OF FACE OF CONVERTIBLE DEBENTURE)]
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT THE
FOLLOWING - - THIS DEBENTURE IS A BOOK-ENTRY DEBENTURE WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS DEBENTURE IS EXCHANGEABLE FOR
CONVERTIBLE DEBENTURES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS DEBENTURE (OTHER THAN A TRANSFER OF THIS
DEBENTURE 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 SUCH LIMITED CIRCUMSTANCES.
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<PAGE> 28
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY DEBENTURE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
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<PAGE> 29
No. CUSIP NO.
----------------- ---------------
EVI, INC.
5% CONVERTIBLE SUBORDINATED PREFERRED EQUIVALENT
DEBENTURE DUE 2027
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS,
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE
SECURITY EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL
NOT, PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED
HEREBY OR THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OR EXCHANGE OF
SUCH SECURITY EXCEPT (A) TO EVI, INC. (THE "COMPANY") OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED
STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE CHASE MANHATTAN BANK, AS TRUSTEE (OR, A SUCCESSOR TRUSTEE, AS
APPLICABLE) (OR, IF THIS CERTIFICATE EVIDENCES COMMON STOCK, THE TRANSFER AGENT
FOR THE COMMON STOCK), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED
HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE, SUCCESSOR
TRUSTEE OR TRANSFER AGENT AND THE COMPANY), (D) OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (F) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE
TIME OF SUCH TRANSFER); (3) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE 2(F) ABOVE), AGREES THAT IT WILL FURNISH TO THE CHASE
MANHATTAN BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), AND THE
COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE
OR THE COMPANY MAY REASONABLY
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<PAGE> 30
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, AND (4) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE
SECURITY EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED
HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON
THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE CHASE MANHATTAN BANK, AS TRUSTEE (OR, IF THIS CERTIFICATE
EVIDENCES COMMON STOCK, SUCH HOLDER MUST FURNISH TO THE TRANSFER AGENT SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT). IF THIS CERTIFICATE DOES NOT EVIDENCE COMMON STOCK AND IF THE
PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER WHO
IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
CHASE MANHATTAN BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), AND
THE COMPANY, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT OR
THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED
UPON THE EARLIER OF THE TRANSFER OF THE SECURITY EVIDENCED HEREBY PURSUANT TO
CLAUSE 2(F) ABOVE OR UPON ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY UNDER
RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION). AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
EVI, Inc., 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, Cede & Co. or registered
assigns, the principal sum of [Three Hundred Fifty Million Dollars
($350,000,000)]1 on November 1, 2027, and to pay interest on said principal sum
from October 31, 1997, or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in arrears on
February 1, May 1, August 1 and November 1 of each year commencing February 1,
1998, at the rate of 5% per annum until the principal hereof
- - - - - - - - - - - - - - - ---------------------------------
(1) In the case of a Global Debenture the bracketed text will be replaced
with the following: "principal amount set forth on Schedule A hereto".
In the event any portion of an over-allotment is exercised an additional
Convertible Debenture in principal amount of up to $52,500,000 may be issued.
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<PAGE> 31
shall have become due and payable, and on any overdue principal and premium, if
any, and (without duplication and to the extent that payment of such interest
is enforceable under applicable law) on any overdue installment of interest at
the same rate per annum compounded quarterly. The amount of interest payable
on any Interest Payment Date shall be computed on the basis of a 360-day year
of twelve 30-day months. Except as provided in the following sentence, the
amount of interest payable for any period shorter than a full quarterly period
for which interest is computed, will be computed on the basis of the actual
number of days elapsed per 30-day month. In the event that any date on which
interest is payable on this Convertible Debenture is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other payment in
respect of any such delay), 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 interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture
(referred to on the reverse hereof) be paid to the person in whose name this
Convertible Debenture (or one or more Predecessor Debentures, as defined in
said Indenture) is registered on the Regular Record Date for such interest
installment, which shall be the close of business on the fifteenth day prior to
such Interest Payment Date unless otherwise provided in the Indenture. Any
such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such Regular Record
Date and may be paid to the Person in whose name this Convertible Debenture (or
one or more Predecessor Debentures) is registered at the close of business on a
special record date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered Holders of
the Convertible Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Convertible
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. The principal of (and
premium, if any) and the interest on this Convertible Debenture shall be
payable at the office or agency of the Trustee maintained for that purpose in
any coin or currency of the United States of America that at the time of
payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the registered Holder at such address as shall appear in the
Debenture Register. Notwithstanding the foregoing, so long as the Holder of
this Convertible Debenture is The Depository Trust Company (the "Depositary"),
the payment of the principal of (and premium, if any) and interest on this
Convertible Debenture will be made at such place and to such account as may be
designated by the Depositary.
The indebtedness evidenced by this Convertible Debenture is,
to the extent provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Indebtedness, and this
Convertible Debenture is issued subject to the provisions of the Indenture with
respect thereto. Each Holder of this Convertible Debenture, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee on his or her behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. Each Holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
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<PAGE> 32
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
This Convertible Debenture shall not be entitled to any
benefit under the Indenture hereinafter referred to, be valid or become
obligatory for any purpose until the Certificate of Authentication hereon shall
have been signed by or on behalf of the Trustee.
The provisions of this Convertible Debenture are continued on
the reverse side hereof and such continued provisions shall for all purposes
have the same effect as though fully set forth at this place.
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<PAGE> 33
IN WITNESS WHEREOF, the Company has caused this instrument
to be executed.
EVI, INC.
By:
---------------------------
Name:
Title:
Attest:
By:
-------------------------------
Name:
Title:
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<PAGE> 34
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Convertible Debentures described in the
within-mentioned Indenture.
Dated:
THE CHASE MANHATTAN BANK,
as Trustee
By
----------------------
Authorized Signatory
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<PAGE> 35
[FORM OF REVERSE OF DEBENTURE]
This Convertible Debenture is one of a duly authorized series
of Debentures of the Company (herein sometimes referred to as the
"Debentures"), specified in the Indenture, all issued or to be issued in one or
more series under and pursuant to an Indenture dated as of October 15, 1997,
duly executed and delivered between the Company and The Chase Manhattan Bank,
as Trustee (the "Trustee"), as supplemented by the First Supplemental Indenture
dated as of October 28, 1997, between the Company and the Trustee (the
Indenture as so supplemented, the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Convertible
Debentures. By the terms of the Indenture, the Debentures are issuable
thereunder in series that may vary as to amount, date of maturity, rate of
interest and in other respects as provided in the Indenture. This series of
Debentures is limited in aggregate principal amount as specified in said First
Supplemental Indenture and herein sometimes referred to as the "Convertible
Debentures."
The Company shall have the right to redeem this Convertible
Debenture, upon not less than 30 nor more than 60 days notice, in whole or in
part at any time on or after November 4, 2000 (an "Optional Redemption") at the
following prices (expressed as percentages of the principal amount of the
Convertible Debentures) (the "Optional Redemption Price") together with accrued
and unpaid interest, including Additional Interest and Compounded Interest (as
defined in the Indenture), if any, to, but excluding, the redemption date, if
redeemed during the 12-month period beginning November 1:
<TABLE>
<CAPTION>
Year Redemption Price
---- ----------------
<S> <C>
2000 103.5%
2001 103.0
2002 102.5
2003 102.0
2004 101.5
2005 101.0
2006 100.5
</TABLE>
and 100% if redeemed on or after November 1, 2007.
If Convertible Debentures are redeemed on any February 1, May
1, August 1 or November 1, accrued and unpaid interest shall be payable to
holders of record on the relevant record date.
If the Convertible Debentures are only partially redeemed by
the Company pursuant to an Optional Redemption, the Convertible 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 Convertible Debenture in
part only, a new Convertible Debenture or Convertible Debentures of this series
for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
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<PAGE> 36
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Convertible
Debentures 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.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Debentures of such series; provided, however, that no such supplemental
indenture shall (a) extend the fixed maturity of any Debenture of any series,
or reduce the principal amount thereof, or reduce the rate or extend the time
of payment of interest thereon, or reduce any premium payable upon the
redemption thereof, or make any change that adversely affects the right to
convert any Debenture of any series or make any change in the subordination
provisions that adversely affects the rights of any Holders of any Debenture of
any series, without the consent of the Holder of each Debenture so affected, or
(b) reduce the aforesaid percentage of Debentures of such series, the Holders
of which are required to consent to any such supplemental indenture, without
the consent of the Holders of each Debenture of any series then outstanding and
affected thereby. The Indenture also contains provisions permitting the Holders
of a majority in aggregate principal amount of the Debentures of any series at
the time outstanding affected thereby, on behalf of all of the Holders of the
Debentures of such series, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established pursuant to the
Indenture with respect to such series, and its consequences, except a default
in the payment of the principal of or premium, if any, or interest on any
Debentures of such series or a failure to convert any Debentures of such series
in accordance with its terms upon an election by the Holders thereof. Any such
consent or waiver by the registered Holder of this Convertible Debenture
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this Convertible
Debenture and of any Convertible Debenture issued in exchange therefor or in
place hereof (whether by registration of transfer or otherwise), irrespective
of whether or not any notation of such consent or waiver is made upon this
Convertible Debenture.
No reference herein to the Indenture and no provision of this
Convertible 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 Convertible Debenture at the time and
place and at the rate and in the money herein prescribed.
As long as an Event of Default under Section 5.1(a) of the
Indenture shall not have occurred and be continuing, the Company shall have the
right at any time during the term of the Convertible Debentures and from time
to time to extend the interest payment period of such Convertible Debentures
for up to 20 consecutive quarters (an "Extended Interest Payment Period"), at
the end of which period the Company shall pay all interest then accrued and
unpaid (together with interest thereon at the rate specified for the
Convertible Debentures to the extent that payment of such interest is
enforceable under applicable law). Before the termination of any such Extended
Interest Payment Period, the Company may further extend such Extended Interest
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<PAGE> 37
Payment Period, provided that such Extended Interest Payment Period together
with all such further extensions thereof shall not exceed 20 consecutive
quarters. At the termination of any such Extended Interest Payment Period and
upon the payment of all accrued and unpaid interest and any additional amounts
then due, the Company may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain
limitations therein set forth, this Convertible Debenture is transferable by
the registered Holder hereof on the Debenture Register of the Company, upon
surrender of this Convertible Debenture for registration of transfer at the
office or agency of the Trustee in the City and State of New York accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Convertible
Debentures of authorized denominations and for the same aggregate principal
amount and series will be issued to the designated transferee or transferees.
No service charge will be made for any such transfer, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Convertible Debenture, the Company, the Trustee, any paying agent and the
Debenture Registrar may deem and treat the registered holder hereof as the
absolute owner hereof (whether or not this Convertible Debenture shall be
overdue and notwithstanding any notice of ownership or writing hereon made by
anyone other than the Debenture Registrar) for the purpose of receiving payment
of or on account of the principal hereof and premium, if any, and interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any paying agent nor any Debenture Registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Convertible Debenture, or for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the Indenture,
against any incorporator, stockholder, officer or director, past, present or
future, as such, of the Company or of any predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
The Holder of any Convertible Debenture has the right,
exercisable at any time after 90 days following the date of the original issue
of the Convertible Debentures through the close of business (New York time) on
October 31, 2027 (or, in the case of a Convertible Debenture called for
redemption, prior to the close of business on the Business Day prior to the
corresponding redemption date), to convert the principal amount hereof (or any
portion hereof that is an integral multiple of $50) into shares of Common Stock
at the initial conversion rate of .625 shares of Common Stock for each
Convertible Debenture (equivalent to a Conversion Price of $80 per share of
Common Stock), subject to adjustment under certain circumstances.
To convert a Convertible Debenture, a Holder must (a) complete
and sign a conversion notice substantially in the form attached hereto, (b)
surrender the Convertible Debenture to a Conversion Agent, (c) furnish
appropriate endorsements or transfer documents
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<PAGE> 38
if required by the Conversion Agent and (d) pay any transfer or similar tax, if
required. Upon conversion, no adjustment or payment will be made for interest
or dividends, but if any Holder surrenders a Convertible Debenture for
conversion on or after the Regular Record Date for the payment of an
installment of interest and prior to the opening of business on the next
Interest Payment Date, then, notwithstanding such conversion, the interest
payable on such Interest Payment Date will be paid to the registered Holder of
such Convertible Debenture on such Regular Record Date (unless such Regular
Record Date falls within an Extended Interest Payment Period, in which event no
further interest shall be paid with respect to such Convertible Debenture). In
such event, such Convertible Debenture, when surrendered for conversion, need
not be accompanied by payment of an amount equal to the interest payable on
such Interest Payment Date on the portion so converted. However, if a
Redemption Date falls between a Regular Record Date and the subsequent Interest
Payment Date, the Holder will be entitled to receive, on such Redemption Date,
the interest accrued to, but excluding, the Redemption Date. The number of
shares issuable upon conversion of a Convertible Debenture is determined by
dividing the principal amount of the Convertible Debenture converted by the
Conversion Price in effect on the Conversion Date. No fractional shares will
be issued upon conversion but a cash adjustment will be made for any fractional
interest. The outstanding principal amount of any Convertible Debenture shall
be reduced by the portion of the principal amount thereof converted into shares
of Common Stock.
The Convertible Debentures of this series are issuable only in
registered form without Coupons in denominations of $50 and any integral
multiple thereof.2 This Global Debenture is exchangeable for Convertible
Debentures in definitive form only under certain limited circumstances set
forth in the Indenture. Convertible Debentures of this series so issued are
issuable only in registered form without Coupons in denominations of $50 and
any integral multiple thereof.3 As provided in the Indenture and subject to
certain limitations therein set forth, Convertible Debentures of this series
are exchangeable for a like aggregate principal amount of Convertible
Debentures of this series of a different authorized denomination, as requested
by the Holder surrendering the same.
All terms used in this Convertible Debenture that are defined
in the Indenture shall have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE
INDENTURE AND THE CONVERTIBLE DEBENTURES WITHOUT REGARD TO CONFLICT OF LAW
PROVISIONS THEREOF.
- - - - - - - - - - - - - - - ----------------------------
(2) This text will appear in the case of registered definitive
certificates issued to Institutional Accredited Investors.
(3) This text will appear in the case of a Global Debenture.
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<PAGE> 39
[FORM OF ELECTION TO CONVERT]
ELECTION TO CONVERT
To: EVI, INC.
The undersigned owner of this Convertible Debenture hereby
irrevocably exercises the option to convert this Convertible Debenture, or the
portion below designated, into Common Stock of EVI, INC. in accordance with the
terms of the Indenture referred to in this Convertible Debenture, and directs
that the shares issuable and deliverable upon conversion, together with any
check in payment for fractional shares, be issued in the name of and delivered
to the undersigned, unless a different name has been indicated in the
assignment below. If shares are to be issued in the name of a person other
than the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
Date:
-----------,--
in whole Portions of Convertible Debenture to
be converted ($50 or integral
multiples thereof):
$
----------
------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and
Address, Including Zip Code, and
Social Security or Other Identifying
Number
------------------------------
------------------------------
------------------------------
Signature Guarantee: (4)
--------
- - - - - - - - - - - - - - - -------------------------------
Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Conversion Agent, which requirements include
membership of participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Conversion Agent in addition to, or in substitution for,
STAMP, all in accordance with the Securities and Exchange Act of 1934, as
amended.
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<PAGE> 40
ASSIGNMENT
[FORM OF ASSIGNMENT FOR CONVERTIBLE DEBENTURES
THAT ARE NOT GLOBAL DEBENTURES]
For value received ____________ hereby sell(s), assign(s) and transfer(s) unto
_____________________ (Please insert Social security or other taxpayer
identification number of assignee) the within Security and hereby irrevocably
constitutes and appoints ____________ attorney to transfer the said Convertible
Debenture on the books of the Company, with full power of substitution in the
premises.
In connection with any transfer of the within Convertible Debenture occurring
prior to the Transfer Restriction Termination Date, the undersigned confirms
that such Security is being transferred:
[ ] To EVI, Inc. or a subsidiary thereof; or
[ ] Pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
[ ] To an Institutional Accredited Investor pursuant to and in
compliance with the Securities Act of 1933, as amended; or
[ ] Pursuant to and in compliance with Regulation S under the
Securities Act of 1933, as amended; or
[ ] Pursuant to and in compliance with Rule 144 under the
Securities Act of 1933, as amended;
and unless the box below is checked, the undersigned confirms that such
Security is not being transferred to an "affiliate" of the Company as defined
in Rule 144 under the Securities Act of 1933, as amended (an "Affiliate"):
[ ] The transferee is an Affiliate of the Company.
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<PAGE> 41
Dated:
--------------------
----------------------------
----------------------------
Signature(s)
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a major stock exchange.
----------------------------
Signature Guarantee
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of this Security in every particular without
alteration or enlargement or any change whatever.
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<PAGE> 42
[FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL DEBENTURES
TO REFLECT CHANGES IN PRINCIPAL AMOUNT]
Schedule A
Changes to Principal Amount of Global Debentures
<TABLE>
<CAPTION>
============================================================================================
Principal Amount of
Securities by which this
Global Security Is To Be
Reduced or Increased, and Remaining Principal
Reason for Reduction or Amount of this Global Notation
Date Increase Security Made By
- - - - - - - - - - - - - - - ---- ------------------------- --------------------- -----------
<S> <C> <C> <C>
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------------------
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------------------
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------------------
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------------------
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------------------
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------------------
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------------------
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------------------
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------------------
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------------------
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------------------
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------------------
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------------------
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------------------
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------------------
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------------------
============================================================================================
</TABLE>
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<PAGE> 43
ARTICLE VIII
ORIGINAL ISSUE OF CONVERTIBLE DEBENTURES
SECTION 8.1. Original Issue of Convertible Debentures.
Convertible Debentures in the aggregate principal amount of up
to $402,500,000 may, upon execution of this First Supplemental Indenture, be
executed by the Company and delivered to the Trustee for authentication, and
the Trustee shall thereupon authenticate and make available for delivery said
Convertible Debentures to or upon the written order of the Company, signed by
its Chairman, its Executive Vice President, its President, or any Vice
President and its Treasurer or an Assistant Treasurer, without any further
action by the Company.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture; First Supplemental Indenture
Controls.
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided. The provisions of this First
Supplemental Indenture shall supersede the provisions of the Indenture to the
extent the Indenture is inconsistent herewith.
SECTION 9.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not
by the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this First Supplemental Indenture.
SECTION 9.3. Governing Law.
This First Supplemental Indenture and each Debenture shall be
deemed to be a contract made under the internal laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of said
State.
SECTION 9.4. Separability.
In case any one or more of the provisions contained in this
First Supplemental Indenture or in the Convertible Debentures shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions of this First Supplemental Indenture or of the Convertible
Debentures, but this First Supplemental Indenture and the Convertible
Debentures shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION 9.5. Counterparts.
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<PAGE> 44
This First Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
EVI, INC.
By: /s/ James G. Kiley
---------------------------------------------
James G. Kiley
Vice President and Chief Financial Officer
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ W. B. Dodge
---------------------------------------------
Name: W. B. Dodge
-------------------------------------------
Title: Vice President
------------------------------------------
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<PAGE> 1
EXHIBIT 99.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of November 3, 1997 by and among EVI, Inc., a Delaware
corporation (the "Company"), Morgan Stanley & Co. Incorporated, Donaldson,
Lufkin & Jenrette Securities Corporation, Credit Suisse First Boston
Corporation, Lehman Brothers Inc., Prudential Securities Incorporated and
Schroder & Co. Inc. (the "Initial Purchasers") pursuant to the Placement
Agreement, dated as of October 28, 1997 (the "Placement Agreement"), among the
Company and the Initial Purchasers. In order to induce the Initial Purchasers
to enter into the Placement Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution of this
Agreement is a condition to the closing under the Placement Agreement.
The Company agrees with the Initial Purchasers, (i) for their
benefit as Initial Purchasers and (ii) for the benefit of the holders from time
to time of the Registrable Securities (including the Initial Purchasers) (each
of the foregoing a "Holder" and together the "Holders"), as follows:
Section 1. Definitions. Capitalized terms used herein
without definition shall have their respective meanings set forth in the
Placement Agreement. As used in this Agreement, the following terms shall have
the following meanings:
Affiliate: "Affiliate" means, with respect to any specified
person, (i) any other person directly or indirectly controlling or controlled
by, or under direct or direct common control with, such specified person or
(ii) any officer or director of such other person. For purposes of this
definition, the term "control" (including the terms "controlling," "controlled
by" and "under common control with") of a person means the possession, direct
or indirect, of the power (whether or not exercised) to direct or cause the
direction of the management and policies of a person, whether through the
ownership of voting securities, by contract, or otherwise.
Applicable Conversion Price: The Applicable Conversion Price
as of any date of determination means the Conversion Price, as may be adjusted
from time to time, in effect as of such date of determination or, if no
Convertible Debentures are then outstanding, the Conversion Price that would be
in effect were Convertible Debentures then outstanding.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
Common Stock: The shares of common stock, $1.00 par value per
share, of the Company and any other shares of common stock as may constitute
"Common Stock" for purposes of the Indenture, including the Underlying Common
Stock.
Conversion Price: Conversion Price shall have the meaning
assigned such term in Section 6.1 of the Indenture.
Convertible Debentures: The 5% Convertible Subordinated
Preferred Equivalent Debentures due 2027 of the Company purchased by the
Initial Purchasers pursuant to the Placement Agreement.
Damages Accrual Period: See Section 2(e) hereof.
-1-
<PAGE> 2
Damages Payment Date: Each Interest Payment Date (as defined
in the Indenture), in the case of Convertible Debentures, and each January 31,
April 30, July 31 and October 31, in the case of Underlying Common Stock.
Deferral Period: See Section 2(d)(ii) hereof.
Effectiveness Period: The period commencing with the date
hereof and ending on the date that all Registrable Securities have ceased to be
Registrable Securities.
Event: See Section 2(e) hereof.
Event Termination Date: See Section 2(e), hereof.
Event Date: See Section 2(e) hereof.
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
Filing Date: See Section 2(a) hereof.
Holder: See the second paragraph of this Agreement.
Indenture: The Indenture, dated as of October 15, 1997,
between the Company and The Chase Manhattan Bank, as trustee, pursuant to which
the Convertible Debentures are being issued, as amended by the First
Supplemental Indenture dated as of October 28, 1997, between the Company and
The Chase Manhattan Bank, as trustee.
Initial Purchasers: Morgan Stanley & Co. Incorporated,
Donaldson, Lufkin & Jenrette Securities Corporation, Credit Suisse First Boston
Corporation, Lehman Brothers Inc., Prudential Securities Incorporated and
Schroder & Co. Inc.
Initial Shelf Registration: See Section 2(a) hereof.
Losses: See Section 6 hereof.
Notice Holder: See Section 2(d)(i) hereof.
Placement Agreement: See the first paragraph of this
Agreement.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Registrable Securities: The Convertible Debentures and the
Underlying Common Stock, whether or not such securities have been converted or
exchanged, and at all times subsequent to any such conversion or exchange, and
any security issued with respect thereto upon any stock dividend, split or
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<PAGE> 3
similar event until, in the case of any such security, (i) it is effectively
registered under the Securities Act and disposed of in accordance with the
Registration Statement covering its offering and sale, (ii) it is saleable by
the Holder thereof pursuant to Rule 144(k) or (iii) it is sold to the public
pursuant to Rule 144 and, as a result of the event or circumstance described in
any of the foregoing clauses (i) through (iii), the legends with respect to
transfer restrictions required under the Indenture are removed or removable in
accordance with the terms of the Indenture.
Registration Expenses: See Section 5 hereof.
Registration Statement: Any registration statement of the
Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective
amendments, all exhibits, and all material incorporated by reference or deemed
to be incorporated by reference in such registration statement.
Restricted Securities: As this term is defined in Rule 144.
Rule 144: Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
Selling Period: See Section 2(d)(i) hereof.
Shelf Registration: See Section 2(a) hereof.
Special Counsel: Baker & Botts, L.L.P. or such other
successor counsel as shall be specified by the Holders of a majority of the
Registrable Securities, the reasonable fees and expenses of which will be paid
by the Company pursuant to Section 5 hereof.
Subsequent Shelf Registration: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The Chase Manhattan Bank (or any successor entity),
the Trustee under the Indenture.
Underlying Common Stock: The Common Stock of the Company into
which the Convertible Debentures are convertible.
-3-
<PAGE> 4
Section 2. Shelf Registration.
(a) Shelf Registration. The Company shall prepare and
file with the SEC, as soon as practicable but in any event within ninety (90)
days after the latest date of original issuance of the Convertible Debentures
(the "Filing Date"), a Registration Statement for an offering to be made on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act (a
"Shelf Registration") registering the resale from time to time by Holders
thereof of all of the Registrable Securities (the "Initial Shelf
Registration"). The Initial Shelf Registration shall be on Form S-3 or another
appropriate form permitting registration of such Registrable Securities for
resale by such Holders in the manner or manners designated by them. The
Company shall use its reasonable best efforts to cause the Initial Shelf
Registration to become effective under the Securities Act as promptly as is
practicable and to keep the Initial Shelf Registration continuously effective
under the Securities Act until the end of the Effectiveness Period or the date
a Subsequent Shelf Registration (as defined below) covering all of the
Registerable Securities has been declared effective under the Securities Act.
(b) If the Initial Shelf Registration or any Subsequent
Shelf Registration, as defined below, ceases to be effective for any reason at
any time during the Effectiveness Period (other than because all Registrable
Securities shall have ceased to be Registrable Securities), the Company shall
use its reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within thirty (30)
days of such cessation of effectiveness amend the Shelf Registration in a
manner reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration covering all of
the Registrable Securities (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the Company shall use its reasonable
best efforts to cause the Subsequent Shelf Registration to become effective as
promptly as is practicable after such filing and to keep such Registration
Statement continuously effective until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf
Registration if required by the rules, regulations or instructions applicable
to the registration form used by the Company for such Shelf Registration, if
required by the Securities Act, or if reasonably requested by the Initial
Purchasers or by the Trustee on behalf of the Holders of the Registrable
Securities covered by such Registration Statement.
(d) Each Holder of Registrable Securities agrees that if
such Holder wishes to sell its Registrable Securities pursuant to a Shelf
Registration and related Prospectus, it will do so only in accordance with this
Section 2(d). Each Holder of Registrable Securities agrees to give written
notice to the Company at least three (3) Business Days prior to any intended
distribution of Registrable Securities under the Shelf Registration, which
notice shall specify the date on which such Holder intends to begin such
distribution and any information with respect to such Holder and the intended
distribution of Registrable Securities by such Holder required to amend or
supplement the Registration Statement with respect to such intended
distribution of Registrable Securities by such Holder. As promptly as is
practicable after the date such notice is provided, and in any event within two
(2) Business Days after such date, the Company shall either:
(i) (A) if necessary, prepare and file with the
Commission a post-effective amendment to the Shelf Registration or a supplement
to the related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document so that
such Registration Statement will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading,
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<PAGE> 5
and so that, as thereafter delivered to purchasers of the Registrable
Securities being sold thereunder, such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; (B) provide the
Holders of the Registrable Securities who gave such notice copies of any
documents filed pursuant to Section 2(d)(i)(A); and (C) inform each such Holder
that the Company has complied with its obligations in Section 2(d)(i)(A) (or
that, if the Company has filed a post-effective amendment to the Shelf
Registration which has not yet been declared effective, the Company will notify
each such Holder to that effect, will use its reasonable best efforts to secure
the effectiveness of such post-effective amendment and will immediately notify
each such Holder pursuant to Section 2(d)(i)(C) hereof when the amendment has
become effective); each Holder who has given notice of intention to distribute
such Holder's Registrable Securities in accordance with Section 2(d) hereof (a
"Notice Holder") will sell all or any or such Registrable Securities pursuant
to the Shelf Registration and related Prospectus only during the 45-day period
commencing with the date on which the Company gives notice, pursuant to Section
2(d)(i)(C), that the Registration Statement and Prospectus may be used for such
purpose (such 45-day period is referred to as a "Selling Period"); the Notice
Holders will not sell any Restricted Securities pursuant to such Registration
Statement or Prospectus after such Selling Period without giving a new notice
of intention to sell pursuant to Section 2(d) hereof and receiving a further
notice from the Company pursuant to Section 2(d)(i)(A) hereof; or
(ii) in the event (A) of the happening of any
event of the kind described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(c)(v)
hereof or (B) that, in the judgment of the Company, it is advisable to suspend
use of the Prospectus for a discrete period of time due to pending material
corporate developments or similar material events that have not yet been
publicly disclosed and as to which the Company believes public disclosure would
not be in the best interests of the Company, the Company shall deliver a
certificate in writing, signed by an authorized executive officer of the
Company, to the Notice Holders and the Special Counsel to the effect of the
foregoing and, upon receipt of such certificate, each such Notice Holder's
Selling Period will not commence or resume, as the case may be, until such
Notice Holder's receipt of copies of the supplemented or amended Prospectus
provided for in Section 2(d)(i)(A) hereof, or until it is advised in writing by
the Company that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in such Prospectus. The Company will use its reasonable best
efforts to ensure that the use of the Prospectus may be resumed, and the
Selling Period will commence, as promptly as is practicable and, in the case of
a pending development or event referred to in Section 2(d)(ii)(B) hereof, as
soon as the earlier of (x) public disclosure of such pending material corporate
development or similar material event or (y) in the judgment of the Company,
public disclosure of such material corporate development or similar material
event would be in the best interests of the Company. Notwithstanding the
foregoing, the Company shall not under any circumstances be entitled to
exercise its right under this Section 2(d)(ii) to defer the commencement of a
Selling Period more than 30 days in any three (3) month period or 60 days in
any twelve (12) month period, and the period during which a Selling Period is
suspended shall not exceed thirty (30) days unless the Company shall deliver to
such Notice Holders a second notice to the effect set forth above, which shall
have the effect of extending the period during which such Selling Period is
deferred by up to an additional thirty (30) days, or such shorter period of
time as is specified in such second notice; provided that the period during
which a Selling Period is deferred, a "Deferred Period," shall not exceed sixty
(60) days in any twelve (12) month period.
(e) The parties hereto agree that the Holders of
Registrable Securities will suffer damages, and that it would not be feasible
to ascertain the extent of such damages with precision, if (i) the Initial
Shelf Registration has not been filed on or prior to the Filing Date, (ii) the
date on which the Initial Shelf Registration is first declared effective is not
within one hundred eighty (180) days after
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<PAGE> 6
the latest date of original issuance of the Convertible Debentures (the
"Mandatory Effective Date"), (iii) prior to the end of the Effectiveness
Period, the SEC shall have issued a stop order suspending the effectiveness of
the Shelf Registration or proceedings have been initiated with respect to the
Shelf Registration under Section 8(d) or 8(e) of the Securities Act or (iv) the
aggregate number of days in any one Deferral Period exceeds the number
permitted pursuant to Section 2(d)(ii) hereof (each of the events of a type
described in any of the foregoing clauses (i) through (iv) are individually
referred to herein as an "Event," and the Filing Date in the case of clause
(i), the Mandatory Effective Date in the case of clause (ii), the date on which
the effectiveness of the Shelf Registration has been suspended or proceedings
with respect to the Shelf Registration under Section 8(d) or 8(e) of the
Securities Act have been commenced in the case of clause (iii), and the date on
which the duration of a Deferral Period exceeds the number of days permitted by
Section 2(d)(ii) hereof in the case of clause (iv), being referred to herein as
an "Event Date"). Events shall be deemed to continue until the "Event
Termination Date," which shall be the following dates with respect to the
respective types of Events: the date the Initial Registration Statement is
filed in the case of an Event of the type described in clause (i), the date the
Initial Registration Statement is declared effective in the case of an Event of
the type described in clause (ii), the date that all stop orders suspending
effectiveness of the Shelf Registration have been removed and the proceedings
initiated with respect to the Shelf Registration under Section 8(d) or (e) of
the Securities Act have terminated, as the case may be, in the case of Events
of the types described in clause (iii), and termination of the Deferral Period
which caused the limit on the duration of a Deferral Period set forth in
Section 2(d)(ii) to be exceeded in the case of the commencement of an Event of
the type described in clause (iv).
Accordingly, upon the occurrence of any Event and until such
time as there are no Events that have occurred and are continuing (a "Damages
Accrual Period"), commencing on the Event Date on which such Damages Accrual
Period began, the Company agrees to pay, as liquidated damages, and not as a
penalty, an additional amount (the "Liquidated Damages Amount"): (A) (i) to
each Holder of a Convertible Debenture (in each case that is a Notice Holder),
accruing at a rate equal to one-quarter of one percent per annum (25 basis
points) on an amount equal to the principal amount of such Convertible
Debenture held by such Notice Holder and (ii) to each Holder of Underlying
Common Stock that is a Notice Holder, accruing at a rate equal to one-quarter
of one percent per annum (25 basis points) calculated on an amount equal to the
product of (x) the Applicable Conversion Price as of the Business Day
immediately prior to the applicable Damages Payment Date times (y) the number
of shares of Common Stock that are Registrable Securities held by such Notice
Holder; and (B) if the Damages Accrual Period continues for in excess of thirty
(30) days, from and after the end of such thirty (30) day period until the
applicable Event Termination Date, (i) to each Holder of a Convertible
Debenture (in each case whether or not a Notice Holder), accruing at a rate
equal to one-quarter of one percent per annum (25 basis points) on an amount
equal to the principal amount of such Convertible Debenture held by such Holder
and (ii) to each Holder of Underlying Common Stock (whether or not a Notice
Holder), accruing at a rate equal to one-quarter of one percent per annum (25
basis points) calculated on an amount equal to the product of (x) the
Applicable Conversion Price as of the Business Day immediately prior to the
applicable Damages Payment Date times (y) the number of shares of Common Stock
that are Registrable Securities held by such Holder. Notwithstanding the
foregoing, no Liquidated Damages Amounts shall accrue (1) under clause (A) of
the preceding sentence during any period for which Liquidated Damages Amounts
accrue under clause (B) of the foregoing sentence or (2) as to any Registrable
Security from and after the earlier of (x) the date such security is no longer
a Registrable Security and (y) expiration of the Effectiveness Period.
Notwithstanding the foregoing, no Damages Accrual Period with respect to any
Event described in clause (iii) of paragraph 2(e) shall commence unless and
until a Holder or Holders has given notice in accordance with Section 2(d)
hereof.
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<PAGE> 7
Except as provided in this paragraph, upon the occurrence of
an Event or of multiple concurrent Events, the rate of accrual of the
Liquidated Damages Amount shall be one-quarter of one percent per annum (25
basis points) with respect to any period. Notwithstanding the foregoing, the
rate of accrual of the Liquidated Damages Amount shall be one-half of one
percent per annum (50 basis points) with respect to any period that multiple
concurrent Events have occurred and are continuing if one of such multiple
concurrent Events is an Event described in clause (ii) of paragraph 2(e) and
the Initial Registration Statement (excluding any post-effective amendments
thereto) has not been declared effective. Once the Initial Registration
Statement has been declared effective, the rate of accrual of Liquidated
Damages shall not exceed one-quarter of one percent per annum (25 basis
points).
The Company shall pay the liquidated damages due on any
Convertible Debenture or Underlying Common Stock by depositing with the
Trustee, in trust for the benefit of the Holders of Convertible Debentures or
Underlying Common Stock, as the case may be, entitled thereto, at least one (1)
Business Day prior to the applicable Damages Payment Date, sums sufficient to
pay the liquidated damages accrued or accruing from and including the last
preceding Damages Payment Date to, but not including, such Damages Payment
Date. The Liquidated Damages Amount due shall be payable on each Damages
Payment Date to the Holders of Registrable Securities entitled thereto holding
such Registrable Securities on the record date for such Damages Payment Date;
provided that accrued Liquidated Damages Amounts shall be paid on the
applicable redemption date upon the redemption of any Convertible Debenture (to
the extent accrued with respect to such Convertible Debenture). The Trustee
shall be entitled, on behalf of the Notice Holders and the Holders of
Convertible Debentures or Underlying Common Stock, to seek any available remedy
for the enforcement of this Agreement, including for the payment of such
liquidated damages. Notwithstanding the foregoing, the parties agree that the
sole damages payable for a violation of the terms of this Agreement with
respect to which liquidated damages are expressly provided shall be such
liquidated damages. Nothing shall preclude a Notice Holder or Holder of
Registrable Securities from pursuing or obtaining specific performance or other
equitable relief with respect to this Agreement.
All of the Company's obligations set forth in this Section
2(e) which are outstanding with respect to any Registrable Security at the time
such security ceases to be a Registrable Security shall survive until such time
as all such obligations with respect to such security have been satisfied in
full (notwithstanding termination of this Agreement pursuant to Section 9(o)).
The parties hereto agree that the liquidated damages provided
for in this Section 2(e) constitute a reasonable estimate of the damages that
may be incurred by Holders of Registrable Securities (other than the Initial
Purchasers) by reason of the failure of the Shelf Registration to be filed or
declared effective or unavailable (absolutely or as a practical matter) for
effecting resales of Registrable Securities in accordance with the provisions
hereof.
Section 3. Registration Procedures. In connection with
the registration obligations of the Company under Section 2 hereof, the
Company shall effect such registrations to permit the sale of the Registrable
Securities in accordance with the intended method or methods of disposition
thereof, and pursuant thereto the Company shall as expeditiously as possible:
(a) Prepare and file with the SEC a Registration
Statement on any appropriate form under the Securities Act available for the
sale of the Registrable Securities by the Holders thereof in accordance with
the intended method or methods of distribution thereof, and use their
reasonable best efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided, that before filing
any such Registration Statement or Prospectus or any amendments or
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<PAGE> 8
supplements thereto (other than documents that would be incorporated or deemed
to be incorporated therein by reference) the Company shall furnish to the
Initial Purchasers and the Special Counsel of such offering, if any, copies of
all such documents proposed to be filed, which documents will be subject to the
review of the Initial Purchasers and the Special Counsel, and the Company shall
not file any such Registration Statement or amendment thereto or any Prospectus
or any supplement thereto (other than such documents which, upon filing, would
be incorporated or deemed to be incorporated by reference therein) to which the
Initial Purchasers or the Special Counsel shall reasonably object in writing
within two (2) full Business Days.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period specified in Section 2; cause the related Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Registration Statement
as so amended or such Prospectus as so supplemented.
(c) Notify the Notice Holders and, following the giving
of notice pursuant to Section 2(d), the Initial Purchasers and the Special
Counsel promptly, and (if requested by any such person) confirm such notice in
writing, (i) when a Prospectus, any Prospectus supplement, a Registration
Statement or a post-effective amendment to a Registration Statement has been
filed with the SEC, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the SEC or any other federal or state governmental authority for
amendments or supplements to a Registration Statement or related Prospectus or
for additional information, (iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation or threatening of
any proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the existence of any fact or happening of any event which makes
any statement of a material fact in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue or which would require the making of any changes in the
Registration Statement or Prospectus in order that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case
of the Prospectus, it will not contain any untrue statement of a material fact
or omit to state any material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and (vi) of
the determination by the Company that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of a Registration
Statement, or the lifting of any suspension of the qualification (or exemption
from qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment.
(e) If reasonably requested by the Initial Purchasers,
the Special Counsel, or the Holders of a majority of the Registrable Securities
being sold, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment to a Registration Statement such information as the
Initial
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<PAGE> 9
Purchasers, the Special Counsel, or such Holders, in connection with any
offering of Registrable Securities, agree should be included therein as
required by applicable law, and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment as promptly as is
practicable after the Company has received notification of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
provided, that the Company shall not be required to take any actions under this
Section 3(e) that are not, in the reasonable opinion of counsel for the
Company, in compliance with applicable law.
(f) Furnish to each selling Holder, the Special Counsel
and the Initial Purchasers, without charge, at least one (1) conformed copy of
the Registration Statement and any amendment thereto, including financial
statements but excluding schedules, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits (unless requested in writing
by such Holder, counsel or Initial Purchasers).
(g) Deliver to each selling Holder, the Special Counsel
and the Initial Purchasers in connection with any offering of Registrable
Securities, without charge, as many copies of the Prospectus or Prospectuses
relating to such Registrable Securities (including each preliminary prospectus)
and any amendment or supplement thereto as such persons may reasonably request;
and the Company hereby consents to the use of such Prospectus or each amendment
or supplement thereto by each of the selling Holders of Registrable Securities
in connection with any offering and sale of the Registrable Securities covered
by such Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable
Securities, to register or qualify or cooperate with the selling Holders and
the Special Counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder reasonably
requests in writing; keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement; provided, that the
Company will not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any action that
would subject it to general service of process in suits or to taxation in any
such jurisdiction where it is not then so subject.
(i) Cause the Registrable Securities covered by the
applicable Registration Statement to be registered with or approved by such
other governmental agencies or authorities within the United States (except as
may be required solely as a consequence of the nature of such selling Holder,
in which case the Company will cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such approvals) as
may be necessary to enable the selling Holder or Holders thereof to consummate
the disposition of such Registrable Securities.
(j) During any Selling Period (other than during a
Deferral Period), immediately upon the existence of any fact or the occurrence
of any event as a result of which a Registration Statement shall contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, or a Prospectus shall contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, promptly prepare and file a
post-effective amendment to each Registration Statement or a supplement to the
related Prospectus or any document incorporated therein by reference or file
any
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<PAGE> 10
other required document (such as a Current Report on Form 8-K) that would be
incorporated by reference into the Registration Statement so that the
Registration Statement shall not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and so that the
Prospectus will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Registration Statement, use their best efforts to
cause it to become effective as promptly as is practicable.
(k) Enter into such agreements and take all such other
actions in connection therewith in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection (i) make such
representations and warranties, subject to the ability of the Company to do so,
to the Holders of such Registrable Securities with respect to the business of
the Company and its subsidiaries, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference, if
any, in each case, in form, substance and scope as shall be reasonably
satisfactory to the Special Counsel and the Holders of a majority of the
Registered Securities being sold, and (ii) deliver such documents and
certificates as may be reasonably requested by the Holders of a majority of the
Registrable Securities being sold and the Special Counsel to evidence the
continued validity of the representations and warranties of the Company and its
subsidiaries made pursuant to clause (i) above. The plan of distribution of
the Registration Statement and the Prospectus included therein shall permit
resales of Registrable Securities to be made by selling securityholders through
brokers and dealers. However, the Company will not be obligated hereunder to
pay the costs and expenses of opinions of counsel of such selling
securityholders, or accountants' "cold comfort" letters and the officers and
directors of the Company will not be obligated hereunder to participate in
marketing efforts on behalf of such selling securityholders.
(l) If requested in connection with a disposition of
Registrable Securities pursuant to a Registration Statement, make available for
inspection by a representative of the Holders of Registrable Securities being
sold, and any Special Counsel or accountant retained by such selling Holders,
financial and other records, pertinent corporate documents and properties of
the Company and its subsidiaries, and cause the executive officers, directors
and employees of the Company and its subsidiaries to supply all information
reasonably requested by any such representative, Special Counsel or accountant
in connection with such disposition; subject to reasonable assurances by each
such person that such information will only be used in connection with matters
relating to such Registration Statement; provided, however, that such persons
shall, upon the request of the Company, first agree in writing with the Company
that any information that is reasonably and in good faith designated by the
Company in writing as confidential at the time of delivery of such information
shall be kept confidential by such persons, unless (i) disclosure of such
information is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements pursuant
to Federal securities laws in connection with the filing of any Registration
Statement or the use of any Prospectus referred to in this Agreement), (iii)
such information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard by any such persons or (iv) such
information becomes available to any such person from a source other than the
Company and such source is not bound by a confidentiality agreement.
(m) Comply with all applicable rules and regulations of
the SEC and make generally available to its securityholders earning statements
(which need not be audited) satisfying the provisions
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<PAGE> 11
of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act).
(n) Cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends; and enable such Registrable Securities to be in such denominations and
registered in such names as the Holders may request.
(o) Provide a CUSIP number for all Registrable Securities
not later than the effective date of the Registration Statement and provide the
Trustee and the transfer agent for the Common Stock with printed certificates
for the Registrable Securities which are in a form eligible for deposit with
the Depositary Trust Company.
(p) Cause all Underlying Common Stock covered by the
Registration Statement to be listed on each securities exchange or quotation
system on which the Company's Common Stock is then listed no later than the
date the Registration Statement is declared effective and, in connection
therewith, to the extent applicable, to make such filings under the Exchange
Act (e.g., the filing of a Registration Statement on Form 8-A) and to have such
filings declared effective thereunder.
(q) Cooperate and assist in any filings required to be
made with the National Association of Securities Dealers, Inc.
Section 4. Holder's Obligations. Each Holder agrees, by
acquisition of the Registrable Securities, that no Holder of Registrable
Securities shall be entitled to sell any of such Registrable Securities
pursuant to a Registration Statement or to receive a Prospectus relating
thereto, unless such Holder has furnished the Company with the notice required
pursuant to Section 2(d) hereof (including the information required to
accompany such notice) and, promptly after the request by the Company, such
other information regarding such Holder and the distribution of such
Registrable Securities as the Company may from time to time reasonably request.
The Company may exclude from such registration the Registrable Securities of
any Holder who does not furnish such information provided above for so long as
such information is not so furnished. Each Holder of Registrable Securities as
to which any Registration Statement is being effected agrees promptly to
furnish to the Company all information required to be disclosed in order to
make the information previously furnished to the Company by such Holder not
misleading. Any sale of any Registrable Securities by any Holder shall
constitute a representation and warranty by such Holder that the information
relating to such Holder and its plan of distribution is as set forth in the
Prospectus delivered by such Holder in connection with such disposition, that
such Prospectus does not as of the time of such sale contain any untrue
statement of a material fact relating to such Holder or its plan of
distribution and that such Prospectus does not as of the time of such sale omit
to state any material fact relating to such Holder or its plan of distribution
necessary to make the statements in such Prospectus, in the light of the
circumstances under which they were made, not misleading.
Section 5. Registration Expenses. Subject to Section
3(k) hereof, all fees and expenses incident to the performance by the Company
of or compliance with this Agreement shall be borne by the Company whether or
not any of the Registration Statements become effective. Such fees and
expenses shall include, without limitation, (i) all registration and filing
fees (including, without limitation, fees and expenses (x) with respect to
filings required to be made with the National Association of Securities
Dealers, Inc. and (y) of compliance with federal and state securities or Blue
Sky laws (including, without limitation, fees and disbursements of Special
Counsel in connection with Blue Sky
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<PAGE> 12
qualifications of the Registrable Securities under the laws of such United
States jurisdictions as the Holders of a majority of the Registrable Securities
being sold may designate), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities in a
form eligible for deposit with The Depositary Trust Company and of printing
prospectuses if the printing of prospectuses is requested by the Special
Counsel or the Holders of a majority of the Registrable Securities included in
any Registration Statement), (iii) messenger, telephone and delivery expenses,
(iv) reasonable fees and disbursements of counsel for the Company and the
Special Counsel in connection with the Shelf Registration (provided that the
Company shall not be liable for the fees and expenses of more than one separate
firm for all parties participating in any transaction hereunder), and (v)
Securities Act liability insurance obtained by the Company in its sole
discretion. In addition, the Company shall pay the internal expenses of the
Company (including, without limitation, all salaries and expenses of officers
and employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing of the
Underlying Common Stock and the fees and expenses of any person, including
special experts, retained by the Company. Notwithstanding the provisions of
this Section 5, each seller of Registrable Securities shall pay all
registration expenses to the extent the Company is prohibited by applicable
Blue Sky laws from paying for or on behalf of such seller of Registrable
Securities.
Section 6. Indemnification.
(a) Indemnification by the Company. The Company shall
indemnify and hold harmless each Holder and each person, if any, who controls
any Holder (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) from and against all losses, liabilities,
claims, damages and expenses (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) (collectively, "Losses"), arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement or Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such Losses arise out of or based upon the information
relating to any Holder furnished to the Company in writing by such Holder
expressly for use therein; provided, that the Company shall not be liable to
any Holder of Registrable Securities (or any person controlling such Holder) to
the extent that any such Losses arise out of or are based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary prospectus if either (A) (i) such Holder failed to send or
deliver a copy of the Prospectus with or prior to the delivery of written
confirmation of the sale by such Holder to the person asserting the claim from
which such Losses arise and (ii) the Prospectus would have corrected such
untrue statement or alleged untrue statement or such omission or alleged
omission, or (B) (x) such untrue statement or alleged untrue statement,
omission or alleged omission is corrected in an amendment or supplement to the
Prospectus and (y) having previously been furnished by or on behalf of the
Company with copies of the Prospectus as so amended or supplemented, such
Holder thereafter fails to deliver such Prospectus as so amended or
supplemented, with or prior to the delivery of written confirmation of the sale
of a Registrable Security to the person asserting the claim from which such
Losses arise. The Company shall also indemnify each broker-dealer
participating in the offering and sale of Registrable Securities and each
person who controls such person (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) to the same extent and with
the same limitations as provided above with respect to the indemnification of
the Holders of Registrable Securities.
(b) Indemnification by Holder of Registrable Securities.
Each Holder agrees, and such agreement shall be evidenced by the Holder
delivering the notice described in Section 2(d) hereof,
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<PAGE> 13
severally and not jointly to indemnify and hold harmless the Company, the
Company's directors, the Company's officers who sign a Registration Statement,
and each person, if any, who controls the Company (within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act), from and
against all losses arising out of or based upon any untrue statement of a
material fact contained in any Registration Statement, Prospectus or
preliminary prospectus or arising out of or based upon any omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, to the extent, but only to the extent, that such untrue
statement or omission is contained in any information relating to such Holder
so furnished in writing by such Holder to the Company expressly for use in such
Registration Statement or Prospectus. In no event shall the liability of any
selling Holder of Registrable Securities hereunder be greater in amount than
the dollar amount of the proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of
the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for (a) the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Holders and all
persons, if any, who control any Holder within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, and (b) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
the Company, the Company's directors, the Company's officers who sign a
Registration Statement, and each person, if any, who controls the Company
within the meaning of either such Section, and that all such fees and expenses
shall be reimbursed as they are incurred. In the case of any such separate
firm for the Holders and such persons who control the Holders, such firm shall
be designated in writing by the Holders of a majority of Registerable
Securities sold pursuant to the Registration Statement. In the case of any
such separate firm for the Company, and such directors, officers, trustees and
control persons of the Company, such firm shall be designated in writing by the
Company. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
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<PAGE> 14
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) Contribution. To the extent that the indemnification
provided for in this Section 6 is unavailable to an indemnified party under
Section 6(a) or 6(b) hereof in respect of any Losses or is insufficient to hold
such indemnified party harmless, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such Losses, (i) in
such proportion as is appropriate to reflect the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party or
parties on the other hand or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying party or parties on the one hand
and of the indemnified party or parties on the other hand in connection with
the statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the initial placement (before
deducting expenses) of the Convertible Debentures pursuant to the Placement
Agreement. Benefits received by any Holder shall be deemed to be equal to the
value of receiving Registrable Securities that are registered under the
Securities Act. The relative fault of the Holders on the one hand and the
Company on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Holders or by the Company and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Holders' respective obligations to contribute
pursuant to this paragraph are several in proportion to the respective number
of Registrable Securities they have sold pursuant to a Registration Statement,
and not joint.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were determined by pro
rata allocation or by any other method or allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the Losses referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding this
Section 6(d), an indemnifying party that is a selling Holder of Registrable
Securities shall not be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities sold by
such indemnifying party and distributed to the public were offered to the
public exceeds the amount of any damages which such indemnifying party has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement
obligations of the Company and the Holders hereunder shall be in addition to
any liability the Company and the Holders may otherwise have hereunder, under
the Placement Agreement or otherwise. The provisions of this Section 6 shall
survive, notwithstanding any transfer of the Registrable Securities by any
Holder or any termination of this Agreement.
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<PAGE> 15
The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Holder or any person controlling any Holder, or the Company, the
Company's officers or the Company's directors or any person controlling the
Company and (iii) the sale of any Registrable Securities by any Holder.
Section 7. Information Requirements.
(a) The Company shall file the reports required to be
filed by it under the Securities Act and the Exchange Act, and if at any time
the Company is not required to file such reports, it will, upon the request of
any Holder of Registrable Securities, make publicly available other information
so long as necessary to permit sales of Registrable Securities pursuant to Rule
144 and Rule 144A under the Securities Act. The Company further covenants that
it will cooperate with any Holder of Registrable Securities and take such
further reasonable action as any Holder of Registrable Securities may
reasonably request (including, without limitation, making such reasonable
representations as any such Holder may reasonably request), all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 and Rule 144A under the Securities Act. Upon
the request of any Holder of Registrable Securities, the Company shall deliver
to such Holder a written statement as to whether it has complied with such
filing requirements. Notwithstanding the foregoing, nothing in this Section 7
shall be deemed to require the Company to register any of its securities under
any section of the Exchange Act.
(b) The Company shall file the reports required to be
filed by it under the Exchange Act and shall comply with all other requirements
set forth in the instructions to Form S-3 in order to allow it to be eligible
to file registration statements on Form S-3 in connection with secondary
offerings.
Section 8. Submission to Jurisdiction. The Company
irrevocably consents and agrees, for the benefit of the Holders, that any legal
action, suit or proceeding against it with respect to its obligations,
liabilities or any other matter arising out of or in connection with this
Agreement may be brought in the courts of the State of New York or the courts
of the United States located in The City of New York and hereby irrevocably
consents and submits to the non-exclusive jurisdiction of each such court in
personam, generally and unconditionally, with respect to any such action, suit
or proceeding for itself and in respect of its properties, assets and revenues.
The Company has irrevocably designated, appointed and
empowered CT Corporation System, as its designee, appointee and agent to
receive, accept and acknowledge for and on its behalf, and its properties,
assets and revenues, service of any and all legal process, summons, notices and
documents which may be served in any such action, suit or proceeding referred
to in the preceding paragraph of this Section 8 brought in any United States or
State court that may be made on such designee, appointee and agent in
accordance with legal procedures prescribed for such courts. Said designation
and appointment shall be irrevocable until the end of the Effectiveness Period,
provided, however, that if for any reason such designee, appointee and agent
hereunder shall cease to be available to act as such, the Company agrees to
designate a new designee, appointee and agent in The City of New York on the
terms and for the purposes of this Section 8 satisfactory to the Initial
Purchasers. The Company further hereby irrevocably consents and agrees to the
service of any and all legal process, summons, notices and documents out of any
of the aforesaid courts in any such action, suit, or proceeding by serving a
copy thereof upon the relevant agent for service of process referred to in this
Section 8 (whether or not the appointment of such agent shall for any reason
prove to be ineffective or such agent shall accept or acknowledge such service)
or by mailing copies thereof by registered or
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<PAGE> 16
certified air mail, postage prepaid, to the Company at its address specified in
or designated pursuant to Section 9 of this Agreement. The Company agrees that
the failure of such designee, appointee and agent to give any notice of such
service to it shall not impair or affect in any way the validity of such
service or any judgment rendered in any action or proceeding based thereon.
Nothing herein shall in any way be deemed to limit the ability of the Notice
Holders or the Holders of the Registrable Securities, to serve any such legal
process, summons, notices and documents in any other manner permitted by
applicable law or to obtain jurisdiction over the Company or bring actions,
suits or proceedings against the Company in such other jurisdictions, and in
such manner, as may be permitted by applicable law. The Company hereby
irrevocably and unconditionally waives, to the fullest extent permitted by law,
any objection which it may now, or until the end of the Effectiveness Period,
have to the laying of venue or any of the aforesaid actions, suits or
proceedings arising out of or in connection with this Agreement brought in the
United States Federal courts located in The City of New York or the courts of
the State of New York and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit
or proceeding brought in any such court has been brought in an inconvenient
forum.
The provisions of this Section 8 shall survive any termination
of this Agreement, in whole or in part.
Section 9. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of
its obligations under this Agreement, each Holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement, provided, that the sole damages payable for a violation
of the terms of this Agreement for which liquidated damages are expressly
provided pursuant to Section 2(e) hereof shall be such liquidated damages. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
(b) No Conflicting Agreements. The Company has not, as
of the date hereof, and shall not, on or after the date of this Agreement,
enter into any agreement with respect to its securities which conflicts with
the rights granted to the Holders of Registrable Securities in this Agreement.
The Company represents and warrants that the rights granted to the Holders of
Registrable Securities hereunder do not in any way conflict with the rights
granted to the Holders of the Company's securities under any other agreements.
(c) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of Holders of a majority of the then outstanding Underlying Common
Stock constituting Registrable Securities (with Holders of Convertible
Debentures deemed to be the Holders, for purposes of this Section, of the
number of outstanding shares of Underlying Common Stock into which such
Debentures are convertible or exchangeable). Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Registrable Securities
whose securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect the rights of other Holders of
Registrable Securities may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders; provided, that
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<PAGE> 17
the provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing and shall be
deemed given (i) when made, if made by hand delivery, (ii) upon confirmation,
if made by telecopier or (iii) one (1) business day after being deposited with
a reputable next-day courier, postage prepaid, to the parties as follows
(provided that with respect to any notice of intention to sell given by a
Holder to the Company pursuant to Section 2(d) hereof in accordance with this
Section 9(d) which is given on or after December 24 of any year and on or prior
to January 1 of the next year, such notice shall only be deemed given upon the
earlier of actual receipt of such notice by the Company or the first Business
Day next succeeding such January 1):
(w) if to a Holder of Registrable Securities, at
the most current address given by such Holder to the Company
in accordance with the provisions of Section 9(e);
(x) if to the Company, to:
EVI, Inc.
5 Post Oak Park, Suite 1760
Houston, Texas 77027-3415
Attention: James G. Kiley
Telecopy No.: (713) 297-8488
with a copy to:
Fulbright & Jaworski L.L.P.
1301 McKinney Street, Suite 5100
Houston, Texas 77010
Attention: Curtis Huff
Telecopy No.: (713) 651-5246
(y) if to the Initial Purchasers, to:
Morgan Stanley & Co. Incorporated
Donaldson, Lufkin & Jenrette Securities
Corporation
Lehman Brothers Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Attention: Equity Capital Markets
Telecopy No.: (212) 761-0538
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<PAGE> 18
; and
(z) if to the Special Counsel, to:
Baker & Botts, L.L.P.
3000 One Shell Plaza
910 Louisiana
Houston, Texas 77002
Attention: R. Joel Swanson
Telecopy No.: (713) 229-1522
or to such other address as such person may have furnished to
the other persons identified in this Section 9(d) in writing
in accordance herewith.
(e) Owner of Registrable Securities. The Company will
maintain, or will cause its registrar and transfer agent to maintain, a
register with respect to the Registrable Securities in which all transfers of
Registrable Securities of which the Company has received notice will be
recorded. The Company may deem and treat the person in whose name Registrable
Securities are registered in such register of the Company as the owner thereof
for all purposes, including, without limitation, the giving of notices under
this Agreement.
(f) Approval of Holders. Whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Company or its
affiliates (as such term is defined in Rule 405 under the Securities Act)
(other than the Initial Purchasers or subsequent Holders of Registrable
Securities if such subsequent Holders are deemed to be such affiliates solely
by reason of their holdings of such Registrable Securities) shall not be
counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(g) Successors and Assigns. Any person who purchases any
Registrable Securities from an Initial Purchaser shall be deemed, for purposes
of this Agreement, to be an assignee of such Initial Purchasers. This
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties and shall inure to the benefit of and be binding
upon each Holder of any Registrable Securities.
(h) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be original and all of which taken
together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
(k) Severability. If any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated thereby, and the parties hereto
shall use their best efforts to find and employ an
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<PAGE> 19
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such which may be hereafter declared invalid, void or
unenforceable.
(l) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and the
registration rights granted by the Company with respect to the Registrable
Securities sold pursuant to the Placement Agreement. Except as provided in the
Placement Agreement, there are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
the registration rights granted by the Company with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and undertakings
among the parties with respect to such registration rights.
(m) Attorneys' Fees. In any action or proceeding brought
to enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party, as determined by the
court, shall be entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
(n) Further Assurances. Each of the parties hereto shall
use all reasonable efforts to take, or cause to be taken, all appropriate
action, do or cause to be done all things reasonably necessary, proper or
advisable under applicable law, and execute and deliver such documents and
other papers, as may be required to carry out the provisions of this Agreement
and the other documents contemplated hereby and consummate and make effective
the transactions contemplated hereby.
(o) Termination. This Agreement and the obligations of
the parties hereunder shall terminate upon the end of the Effectiveness Period,
except for any liabilities or obligations under Sections 4, 5 or 6 hereof and
the obligations to make payments of and provide for liquidated damages under
Section 2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
their terms.
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<PAGE> 20
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
EVI, INC.
By: /s/ James G. Kiley
------------------------------------------
James G. Kiley
Vice President and Chief Financial Officer
Accepted as of the date first
above written,
MORGAN STANLEY & CO. INCORPORATED
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON CORPORATION
LEHMAN BROTHERS INC.
PRUDENTIAL SECURITIES INCORPORATED
SCHRODER & CO. INC.
By: Morgan Stanley & Co. Incorporated
By: /s/ Stephen M. Trauber
----------------------------------
Stephen M. Trauber
Principal
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