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) September 26, 1997
General DataComm Industries, Inc.
(Exact Name of Registrant as Specified in Charter)
Delaware 1-8086 06-0853856
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
Middlebury, Connecticut 06762-1299
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (203) 574-1118
N /A
(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
Item 5. Other Events
On September 26, 1997, General DataComm Industries, Inc. (the "Corporation")
sold $25,000,000 principal amount of a new 7-3/4% Convertible Senior
Subordinated Debenture issue due 2002 ("7-3/4% Debentures") to a group of
qualified institutional buyers and institutional accredited investors. The
proceeds will be used primarily to fund operating and investing activities
including, but not limited to, the development and expansion of the
Corporation's Asynchronous Transfer Mode (ATM) business.
The 7-3/4% Debentures can be converted at any time into Common Stock at a
conversion price of $6.86 a share, or the equivalent of approximately 145.8
shares of Common Stock for each $1,000 principal amount of 7-3/4% Debentures.
Such conversion price will be reset on each of March 30, 1998 and September 30,
1999 (each a "Reset Date") to the average closing price (as defined) of Common
Stock for the ten previous trading days preceding a Reset Date plus the original
premium thereof if lower than the initial conversion price, but in no event may
the conversion price be reset at a price lower than 15% below the initial
conversion price or be reset on the second Reset Date at a price higher than the
conversion price set on the first Reset Date.
The 7-3/4% Debentures may not be redeemed at the option of the Company prior to
September 30, 2000. The 7-3/4% Debentures are redeemable in whole or in part, at
the option of the Company, at any time on or after September 30, 2000 at
specified redemption prices plus accrued interest to the date of redemption,
provided, however, that the 7-3/4% Debentures are not redeemable on and after
September 30, 2000 and prior to September 30, 2001 unless the closing price of
the Common Stock has equaled or exceeded 150% of the conversion price per share
then in effect for at least 20 trading days within 30 consecutive trading days
ending within five trading days before notice of redemption is mailed.
The 7-3/4% Debentures will be subordinated in right of payment to all existing
and future senior indebtedness of the Corporation. During the 30-day period
commencing September 30, 2000, each holder of the 7-3/4% Debentures shall have
the right to require the Corporation to repurchase such 7-3/4% Debentures at a
repurchase price in cash equal to 100% of the principal amount thereof, plus
accrued and unpaid interest. The Corporation may satisfy such repurchase
obligations through the issuance of nonconvertible senior subordinated notes
which are subordinated to the same extent and due on the same maturity date as
the 7-3/4% Debentures and having substantially the same terms as the 7-3/4%
Debentures, except such notes shall not be convertible and shall bear a rate of
interest in order to have a market value of 100% of their principal amount on
the date of repurchase, as determined by a nationally recognized investment
banking firm chosen by the Corporation; provided that the interest rate shall
not exceed 14% per annum. Reference is made to Exhibit 4 to this Report for all
of the terms and conditions of the 7-3/4% Debentures.
2
<PAGE>
Item 5. Other Events (continued)
The 7-3/4% Debentures were not registered under the Securities Act of 1933 and
may not be offered or sold in the United States without registration unless
pursuant to an applicable exemption from the registration requirements, such as
Rule 144A on a sale to a qualified institutional buyer. The Corporation has
agreed to file a registration statement, for the 7-3/4% Debentures and Common
Stock into which the 7-3/4% Debentures are convertible,under the Securities Act
of 1933, as amended, within ninety (90) days from the date of issuance. The
Corporation was represented by Utendahl Capital Partners, L.P. as Placement
Agent.
Item 7. Financial Statements, Proforma Financial Information and Exhibits
(c) Exhibits.
4. Indenture dated as of September 26, 1997.
3
<PAGE>
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.
General DataComm Industries, Inc.
(Registrant)
By:/s/ William S. Lawrence
--------------------------
William S. Lawrence
Senior Vice President and
Principal Financial Officer
Dated: October 8, 1997
GENERAL DATACOMM INDUSTRIES, INC.
and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
Indenture
Dated as of September 26, 1997
7 3/4% Convertible Senior Subordinated Debentures due 2002
<PAGE>
GENERAL DATACOMM INDUSTRIES, INC.
Cross-Reference Sheet Required by Regu1ation S-K.
Item 601, Exhibits, Instruction 3(b)(4)(iv)
Trust Indenture Section
Act Section Indenture
310(a)(1).................................. 5.03; 8.09
(a)(2).................................. 8.09
(a)(3).................................. Not App1icab1e
(a)(4).................................. Not App1icab1e
(b)..................................... 8.08; 8.10
311(a)..................................... 8.13(a)
(b)..................................... 8.13(b)
312(a)..................................... 6.01; 6.02(a)
(b)..................................... 6.02(b)
(c)..................................... 6.02(c)
313(a)..................................... 6.04(a)
(b)..................................... 6.04(b)
(c)..................................... 6.04(c)
(d)..................................... 6.04(d)
314(a)..................................... 6.01, 5.03
(b)..................................... Not App1icab1e
(c)(1).................................. 16.06
(c)(2).................................. 16.06
(c)(3).................................. Not App1icab1e
(d)..................................... Not App1icab1e
(e)..................................... 16.06
315(a)..................................... 8.01
(b)..................................... 7.07
(c)..................................... 8.01
(d)..................................... 8.01
(d)(1).................................. 8.01(a)
(d)(2).................................. 8.01(b)
(d)(3).................................. 8.01(c)
(e)..................................... 7.08
316(a)..................................... 7.06
(a)(1)(A)............................... 7.06
(a)(1)(B)............................... 7.06
(a)(2).................................. Not App1icab1e
(b)..................................... 7.04
317(a)(1).................................. 7.02
(a)(2).................................. 7.02
(b)..................................... 5.04
318(a)..................................... 16.08
<PAGE>
TABLE OF CONTENTS*
PAGE
PARTIES.................................................... l
RECITALS:
Purpose of Indenture.............................. l
Form of Debenture................................. l
Compliance with legal requirements................ 8
Purpose of and consideration of Indenture......... 8
ARTICLE ONE
DEFINITIONS
SECTION 1.01 Certain terms defined; other terms defined in
Trust Indenture Act of 1939 or by reference
therein in Securities Act of 1933, as amended,
to have meanings therein assigned.......... 9
Board of Directors......................... 9
Business Day............................... 9
Change in Control.......................... 9
Claim...................................
Closing Price.............................. 9
Common Stock............................... 10
Company.................................... 10
Conversion Rate; Conversion Price.......... 10
Convertible Exchangeable Preferred
Stock.................................... 10
Corporate Trust Office of the Trustee...... 10
Date of Conversion......................... 10
Debenture or Debentures.................... 10
Debenture Registrar........................ 11
Debentureholder............................ 11
Depositary................................. 11
Event of Default........................... 11
Execution of Debentures.................... 11
Indenture.................................. 11
Interest Payment Date...................... 11
- ------------------
*This Table of Contents does not constitute part of the Indenture or have any
bearing upon the interpretation of any of its terms or provisions.
i
<PAGE>
Interest Payment Record Date............. 12
Market Price............................. 12
Market Rate.............................. 12
9% Debentures............................ 12
Obligations.............................. 12
Officers' Certificate.................... 12
Opinion of Counsel....................... 12
Outstanding.............................. 12
Person................................... 13
Put Repurchase Date...................... 13
Put Repurchase Right..................... 13
Put Repurchase Right Notice............. 13
Notice................................... 13
Registered Holder........................ 13
Repurchase Date.......................... 13
Repurchase Right Notice.................. 13
Responsible Officer...................... 14
Senior Indebtedness...................... 14
Senior Indebtedness Default.............. 15
Senior Subordinated Exchange Notes....... 15
Senior Subordinated Indebtedness......... 15
Subsidiary................................ 15
Trading Day............................... 15
Trustee................................... 16
Trust Indenture Act of 1939............... 16
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION
AND EXCHANGE OF DEBENTURES
SECTION 2.01 Amount, Authentication and Delivery
of Debentures.......................... 16
SECTION 2.02 Form of Debentures and Trustee's
Certificate............................ 16
SECTION 2.03 Date of Debentures and Denominations.... 17
SECTION 2.04 Execution and Authentication of Debentures
and Use of Temporary Debentures........ 18
SECTION 2.05 Exchange, Registration and Transfer of
Debentures............................. 19
SECTION 2.06 When Company Not Required To Make
Transfers or Exchanges................. 19
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen
Debentures............................. 19
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SECTION 2.08 Cancellation of Surrendered Debentures... 20
SECTION 2.09 Debentureholders and Senior
Indebtedness............................ 20
SECTION 2.10 Persons Deemed Owners.................... 20
SECTION 2.11 CUSIP Numbers............................ 20
SECTION 2.12 Global Securities........................ 21
ARTICLE THREE
REDEMPTION OF DEBENTURES
PAGE
SECTION 3.01 Debentures Redeemable.................... 23
SECTION 3.02 Notice of Redemption..................... 23
SECTION 3.03 Debentures Called for Redemption Due
and Payable............................. 24
SECTION 3.04 Deposit of Redemption Moneys............. 24
SECTION 3.05 Redemption in Part....................... 25
SECTION 3.06 Redemption Following Change in Control... 25
SECTION 3.07 Redemption at Option of Holders.......... 27
ARTICLE FOUR
CONVERSION OF DEBENTURES
SECTION 4.01 Conversion Privilege and Conversion
Price................................... 28
SECTION 4.02 Manner of Exercise of Conversion
Privilege............................... 28
SECTION 4.03 Fractional Shares........................ 30
SECTION 4.04 Adjustment of Conversion Rate and
Conversion Price........................ 30
SECTION 4.05 Effect of Reclassifications, Consolidations,
Mergers or Sales on Conversion Privilege.. 34
SECTION 4.06 Cancellation of Converted Debentures...... 34
SECTION 4.07 Taxes on Conversion....................... 34
SECTION 4.08 Company to Reserve Stock.................. 35
SECTION 4.09 Covenant as to Common Stock............... 35
SECTION 4.10 Notice of Certain Corporate Action........ 35
SECTION 4.11 Disclaimer of Responsibility of Trustee, Etc. 36
iii
<PAGE>
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.01 Payment of Principal of and
Interest on Debentures..................... 37
SECTION 5.02 Maintenance of Offices or Agencies.......... 37
SECTION 5.03 Appointment to Fill Vacancy in Office
of Trustee................................. 38
SECTION 5.04 Appointment of Paying Agent Other
Than Trustee............................... 38
SECTION 5.05 Annual Report to Trustee.................... 38
SECTION 5.06 Covenant Regarding Authorization............ 39
SECTION 5.07 Delivery of Certain Information............. 39
SECTION 5.08 Payment of Taxes and Other Claims........... 39
SECTION 5.09 Covenant as to Indebtedness................. 39
ARTICLE SIX
DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 6.01 Covenant to Furnish Information............. 40
SECTION 6.02 Preservation of Information;
Communications to Debentureholders......... 40
SECTION 6.03 Reports by Company.......................... 42
SECTION 6.04 Reports by Trustee.......................... 42
ARTICLE SEVEN
REMEDIES OF THE TRUSTEE AND
DEBENTUREHOLDERS ON EVENT OF DEFAULT
SECTION 7.01 Events of Default Defined; Acceleration
of Maturity................................ 44
SECTION 7.02 Rescission and Annulment.................... 46
SECTION 7.03 Collection of Indebtedness and
Suits for Enforcement by Trustee......... 46
SECTION 7.04 Trustee May File Proofs of Claim........... 47
SECTION 7.05 Application of Moneys Collected by
Trustee................................... 48
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<PAGE>
SECTION 7.06 Limitation on Suits by Holders of
Debentures................................. 49
SECTION 7.07 Delay or Omission in Exercise of
Rights Not Waiver of Default.............. 50
SECTION 7.08 Right of Holders of Majority in
Principal Amount of Debentures
to Direct Trustee and Waive Defaults...... 50
SECTION 7.09 Trustee to Give Notice of Defaults
Known to It, but May Withhold in
Certain Circumstances..................... 50
SECTION 7.10 Requirement of Undertaking to Pay
Costs in Certain Suits under Indenture
or Against Trustee........................ 51
SECTION 7.11 Unconditional Right of Holders to
Receive Principal and Interest and
to Convert................................ 51
SECTION 7.12 Restoration of Rights and Remedies......... 51
SECTION 7.13 Rights and Remedies Cumulative............. 52
SECTION 7.14 Waiver of Usury, Stay or Extension Laws.... 52
ARTICLE EIGHT
CONCERNING THE TRUSTEE
SECTION 8.01 Duties of Trustee Prior to and After Event of
Default.................................... 52
SECTION 8.02 Certain Rights of Trustee................... 53
SECTION 8.03 Trustee not Liable for Recitals or Issuance
of Debentures.............................. 55
SECTION 8.04 Trustee or Others May Hold Debentures....... 55
SECTION 8.05 Moneys Held in Trust........................ 55
SECTION 8.06 Compensation, Reimbursement and
Indemnity.................................. 55
SECTION 8.07 Right of Trustee to Rely on Officers'
Certificates............................... 56
SECTION 8.08 Conflicting Interests....................... 56
SECTION 8.09 Notice of Default........................... 56
SECTION 8.10 Requirements for Eligibility of Trustee..... 57
SECTION 8.11 Resignation and Removal of Trustee;
Appointment of Successor................... 57
SECTION 8.12 Acceptance by Successor to Trustee.......... 58
SECTION 8.13 Successor to Trustee by Merger of
Consolidation or Succession to Business.... 59
SECTION 8.14 Authenticating Agents....................... 59
v
<PAGE>
SECTION 8.15 Preferential Collection of Claims Against
Company.................................... 60
ARTICLE NINE
CONCERNING THE DEBENTURES
PAGE
SECTION 9.01 Evidence of Action Taken by Debenture-
holders..................................... 65
SECTION 9.02 Proof of Execution of Instruments and
of Holding of Debentures.................... 65
SECTION 9.03 Registered Holders of Debentures May
be Treated as Owners........................ 66
SECTION 9.04 Debentures Owned by Company Deemed
Not Outstanding............................. 66
SECTION 9.05 Action by Debentureholders Binds Future
Holders..................................... 66
ARTICLE TEN
DEBENTUREHOLDERS' MEETINGS
SECTION 10.01 Purposes for Which Meetings May
Be Called................................... 67
SECTION 10.02 Manner of Calling Meetings................... 67
SECTION 10.03 Call of Meetings by Company or
Certain Holders............................. 68
SECTION 10.04 Persons Entitled to Vote At a Meeting........ 68
SECTION 10.05 Quorum; Action............................... 68
SECTION 10.06 Determination of Voting Rights;
Conduct and Adjournment of Meeting.......... 69
SECTION 10.07 Counting Votes and Recording Action
of Meeting.................................. 70
SECTION 10.08 No Delay..................................... 70
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 11.01 Supplemental Indentures Authorized
by Directors................................ 70
vi
<PAGE>
SECTION 11.02 Supplemental Indentures with Consent
of Debentureholders......................... 71
SECTION 11.03 Effect of Supplemental Indentures............ 72
SECTION 11.04 Notation on Debentures in Respect of
Supplemental Indentures..................... 73
SECTION 11.05 Trustee May Receive Opinion of Counsel....... 73
ARTICLE TWELVE
CONSOLIDATION, MERGER AND SALE
PAGE
SECTION 12.01 Company May Consolidate, Etc................ 73
SECTION 12.02 Successor Corporation to be Substituted..... 74
SECTION 12.03 Opinion of Counsel as Evidence.............. 74
ARTICLE THIRTEEN
SUBORDINATION OF DEBENTURES
SECTION 13.01 Agreement to Subordinate; Senior Subordination 75
SECTION 13.02 Distribution on Dissolution or
Reorganization.............................. 75
SECTION 13.03 Payments Permitted; Knowledge of Trustee..... 78
SECTION 13.04 Debentureholders Authorize Trustee to
Subordinate................................. 79
SECTION 13.05 Trustee May Hold Senior Indebtedness........ 79
ARTICLE FOURTEEN
SATISFACTION AND DISCHARGE OF INDENTURE; DEPOSITED MONEYS
SECTION 14.01 Satisfaction and Discharge of Indenture...... 80
SECTION 14.02 Application by Trustee of Funds
Deposited for Payment of Debentures......... 81
SECTION 14.03 Payment of Moneys Held by
Paying Agent................................ 81
SECTION 14.04 Return of Unclaimed Money.................... 81
vii
<PAGE>
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND TRUSTEES OR DIRECTORS
SECTION 15.01 Personal Immunity From Liability
of Incorporators, Stockholders, Etc......... 81
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
PAGE
SECTION 16.01 Successors.................................. 82
SECTION 16.02 Acts by Successor Valid..................... 82
SECTION 16.03 Surrender of Powers by Company.............. 82
SECTION 16.04 Notices and Demands on Company
and Trustee ............................... 82
SECTION 16.05 Laws of New York to Govern.................. 83
SECTION 16.06 Officers' Certificates and Opinions
of Counsels; Statements to be
Contained Therein.......................... 83
SECTION 16.07 Payments on Non-Business Days............... 84
SECTION 16.08 Provisions Required by Trust Indenture
Act of l939 to Control..................... 84
SECTION 16.09 Effect of Invalidity of Provisions.......... 84
SECTION 16.10 Indenture May Be Executed in
Counterparts; Trustee Accepts Trusts....... 84
ACCEPTANCE OF TRUST......................................... 85
TESTIMONIUM................................................. 85
viii
<PAGE>
TRUST INDENTURE
INDENTURE, dated as of the 26th day of September, in the year
1997, between GENERAL DATACOMM INDUSTRIES, INC., a corporation duly organized
and existing under and by virtue of the laws of the State of Delaware, having
its principal office at 1579 Straits Turnpike, Middlebury, CT 06762-1299,
(hereinafter called the "Company"), party of the first part, and CONTINENTAL
STOCK TRANSFER & TRUST COMPANY a limited purpose trust company, as Trustee
hereunder having its principal office at 2 Broadway, New York, NY 10004
(hereinafter sometimes called the "Trustee"), party of the second part.
WHEREAS, the Company is empowered to issue debentures and notes
for any of the objects and purposes of the Company;
WHEREAS, for its lawful corporate purpose, the Company has duly
authorized an issue of debentures designated 7 3/4% Convertible Senior
Subordinated Debentures due 2002 (hereinafter referred to as the "Debentures"),
in an aggregate principal amount not to exceed Twenty-Five Million Dollars
($25,000,000), to be issued under and pursuant to the provisions hereof and
notes designated Senior Subordinated Notes due 2002 (hereinafter referred to as
the "Senior Subordinated Exchange Notes"), in an aggregate principal amount not
to exceed Twenty-Five Million Dollars ($25,000,000) to be issued in exchange for
the Debentures under and pursuant to the provisions hereof, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture; and
WHEREAS, the definitive Debentures and the Trustee's certificate
of authentication to be borne by the Debentures are to be substantially in the
following forms, respectively:
[Form of Debenture]
[Face]
The Following legends (the "Rule 144A Legend") shall appear on
the face of each Restricted Global Security.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC") to the Company
(Issuer) or its agent for registration of transfer, exchange, or payment,
and any certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
<PAGE>
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF GENERAL DATACOMM
INDUSTRIES, INC. THAT (A) THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED EXCEPT (I) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, AS DEFINED IN RULE 144A, IN A
TRANSACTION IN ACCORDANCE WITH RULE 144A, (II) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S (OR ANY
SUCCESSOR PROVISION THERETO, AND AS MAY BE HEREAFTER AMENDED FROM TIME TO
TIME) UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT"),
(III) PURSUANT TO ANY EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (OR
ANY SUCCESSOR PROVISION THERETO, AND AS MAY BE HEREAFTER AMENDED FROM TIME
TO TIME) UNDER THE SECURITIES ACT (IF AVAILABLE), (IV) TO INSTITUTIONAL
ACCREDITED INVESTORS THAT GIVE TO THE COMPANY A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO RESTRICTIONS ON TRANSFER
OF THE SECURITIES IN FORM SATISFACTORY TO THE COMPANY OR (V) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE TRANSFER
AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS THE TRANSFER AGENT MAY
REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
THIS SECURITY, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION AND
ANY RELATED DOCUMENTA-TION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME
TO MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR RESALES AND OTHER
TRANSFERS OF THIS SECURITY AND ANY SUCH SHARES OF COMMON STOCK TO REFLECT
ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF)
OR IN PRACTICES RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES
GENERALLY. THE HOLDER OF THIS SECURITY AND ANY SUCH
2
<PAGE>
SHARES OF COMMON STOCK REPRESENTING THE INTERESTS HELD BY EACH
BENEFICIAL OWNER HEREOF AND THEREOF, SHALL BE DEEMED BY THE ACCEPTANCE
OF THIS SECURITY AND ANY SUCH SHARES OF COMMON STOCK TO HAVE AGREED TO ANY
SUCH AMENDMENT OR SUPPLEMENT.
$_____________ No.___________
Cusip No. _____
GENERAL DATACOMM INDUSTRIES, INC.
7 3/4% CONVERTIBLE SENIOR SUBORDINATED DEBENTURE DUE 2002
GENERAL DATACOMM INDUSTRIES, INC., a corporation duly organized
and existing under the laws of the State of Delaware (herein referred to as the
"Company"), for value received, hereby promises to pay to_______ , or registered
assigns, at its office or agency in the Borough of Manhattan, City and State of
New York, the principal sum of__________________ Dollars on September 30, 2002,
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, and
to pay interest thereon at the rate per annum specified in the title of this
Debenture, in like coin or currency, at said office or agency of the Company in
the Borough of Manhattan, City and State of New York, from September 26, 1997
payable semi-annually on March 30 and September 30, commencing March 30, 1998
or, if interest to any March 30 or September 30 has been paid or duly provided
for, from the March 30 or September 30, as the case may be, next preceding the
date thereof to which interest has been paid or duly provided for, unless the
date thereof is a date to which interest has been paid or duly provided for, in
which case from the date thereof, in each year until payment of said principal
sum has been made or duly provided for. The interest so payable on any March 30
or September 30 will, subject to certain exceptions provided in the Indenture
referred to on the reverse hereof, be paid by check to the order of the
registered holder of record at the close of business on the March 15 or
September 15, as the case may be, next preceding such March 30 or September 30
whether or not such March 30 or September 30 is a business day. Notwithstanding
the foregoing, if the date hereof is after the 30th day of any March or
September as the case may be, and before the following March 30 or September 30,
this Debenture shall bear interest from such March 30 or September 30; provided,
however, that if the Company shall default in the payment of interest due on
such March 30 or September 30, then this Debenture shall bear interest from the
next preceding March 30 or September 30 to which interest has been paid or duly
provided for, or, if no interest has been paid or duly provided for on the
Debentures, from date of authentication of this Debenture.
3
<PAGE>
Reference is hereby made to the further provisions of this
Debenture set forth on the reverse hereof, and such further provisions shall for
all purposes have the same effect as though fully set forth at this place.
This Debenture shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed by
the Trustee under the Indenture.
IN WITNESS WHEREOF, GENERAL DATACOMM INDUSTRIES, INC. has caused
this Debenture to be executed in its corporate name with the facsimile signature
of its Chairman of the Board and a facsimile of its corporate seal to be
imprinted hereon, attested with the facsimile signature of its Secretary.
Dated:_________________
GENERAL DATACOMM INDUSTRIES, INC.
By:___________________________
Chairman of the Board
Attest:
___________________________
Secretary
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Debentures described in the within-mentioned
Indenture.
Trustee
By:__________________________
Authorized Signature
4
<PAGE>
[Reverse]
GENERAL DATACOMM INDUSTRIES, INC.
7 3/4% CONVERTIBLE SENIOR SUBORDINATED DEBENTURE DUE 2002
This Debenture is one of a duly authorized issue of Debentures
of the Company (herein referred to as the "Debentures"), limited to the
aggregate principal amount of twenty-five million dollars ($25,000,000), all
issued or to be issued under and pursuant to an indenture dated September 26,
1997 (herein referred to as the "Indenture"), duly executed and delivered by the
Company to Continental Stock Transfer & Trust Company as Trustee (herein
referred to as the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights of
the holders of the Debentures, the rights, duties and immunities of the Trustee
and the rights and obligations of the Company thereunder.
The indebtedness evidenced by the Debentures is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, as defined in the Indenture,
and this Debenture is issued subject to such provisions, and each holder of
Debentures, by accepting the same, agrees to and shall be bound by such
provisions.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the 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 at the time outstanding, evidenced
as in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any indenture supplemental thereto or modifying in any
manner the rights and obligations of the holders of the Debentures and of the
Company; provided, however, that no such supplemental indenture shall (i) extend
the fixed maturity of any Debentures, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or change the
conversion or subordination provisions in a manner adverse to the holders,
without the consent of the holder of each Debenture so affected, or (ii) reduce
the aforesaid percentage of Debentures, the holders of which are required to
consent to any such supplemental indenture, without the consent of the holders
of all Debentures then outstanding. It is also provided in the Indenture that
under certain circumstances the holders of a majority in aggregate principal
amount of the Debentures at the time outstanding may on behalf of the holders of
all of the Debentures waive any past default under the Indenture and its
consequences except a
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default in the payment of the principal of or interest on any of the Debentures
or a default in conversion of any of the Debentures. Any such consent or waiver
by the registered holder of this Debenture shall be conclusive and binding upon
such holder and upon all future holders and owners of this Debenture and of any
Debenture issued in exchange hereof or in place hereof, irrespective of whether
or not any notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provisions of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Debenture at the time and place and at the rate and in the coin
or currency herein prescribed or to convert this Debenture as provided in the
Indenture.
As provided in the Indenture, the Debentures may be redeemed, at
the option of the Company, as a whole or from time to time in part, at any time
on and after September 30, 2000 and prior to maturity, upon no less than 30 nor
more than 60 days' notice by mail to each holder of the Debentures, at the
redemption prices (expressed as percentages of the principal amount thereof to
be redeemed) set forth below. If redeemed during the 12 month period beginning
September 30 of the years indicated:
Year Redemption Price
2000. . . . . . . . . . . . . . . . . . . . . . . . . . . . 103.10%
2001. . . . . . . . . . . . . . . . . . . . . . . . . . . . 101.55%
and on or after September 30, 2002, at a redemption price equal to 100% of the
principal amount thereof, together, in each case, with accrued and unpaid
interest to the date of redemption; provided, however, that the Debentures may
not be redeemed on or after September 30, 2000 and prior to September 30, 2001
unless the Closing Price (as defined in the Indenture) of the Common Stock has
equaled or exceeded l50% of the Conversion Price per share then in effect for at
least 20 trading days (as defined in the Indenture) within 30 consecutive
trading days ending within five trading days before notice of redemption is
mailed. The notice of redemption to the holders of Debentures to be redeemed, in
whole or in part which if in part shall be $1,000 or an integral multiple of
$1,000, shall be given by mailing a notice of such redemption not later than on
the thirtieth day, and not earlier than the sixtieth day, before the date fixed
for redemption to such holders at their last addresses as they shall appear upon
the registration books, all as provided in the Indenture.
The Indenture provides that under the circumstances specified
therein funds may be deposited with the Trustee or with any paying agent in
advance of the maturity or redemption date of any of the Debentures, in trust
for the payment or redemption of such Debentures, and payment of the interest
due or to become due thereon, and that thereupon all obligations of the Company
in respect of such Debentures shall cease and be discharged (except any
obligations to provide for the registration of transfer or exchange of
Debentures) and subject to the provisions
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of Article Fourteen of the Indenture, the holders thereof shall thereafter be
restricted exclusively to such funds for any and all other claims on their part
under the Indenture or with respect to such Debentures.
The Debentures are issuable as registered debentures without
coupons in denominations of $1,000 and any integral multiple of $1,000. Upon
surrender of this Debenture for registration of transfer at the above-mentioned
office or agency of the Company, a new Debenture or Debentures, of authorized
denominations, for a like aggregate principal amount, will be issued to the
transferee as provided, and subject to the limitations, in the Indenture. No
service charge will be made for any such registration of transfer, but the
Company may require payment of a sum sufficient to reimburse it for any tax or
other governmental charge that may be imposed in relation thereto; and this
Debenture may in like manner be exchanged without service charge for one or more
new Debentures of other authorized denominations but of the same aggregate
principal amount; all subject to the terms and conditions set forth in the
Indenture.
Subject to the provisions of the Indenture, the registered
holder hereof is entitled, at his option, at any time prior to maturity (or if
this Debenture is called for redemption prior to maturity, then to and including
but not after the close of business on the date fixed for such redemption unless
the Company shall default in making the redemption payment when due, in which
case the conversion right shall terminate at the close of business on the date
such default is cured and such Debenture is redeemed) to convert the principal
hereof (or, in case this Debenture is of a denomination in excess of $1,000, any
portion hereof which is $1,000 or an integral multiple of $1,000) into fully
paid and nonassessable shares of the Common Stock of the Company, at the initial
conversion rate of 145.7726 shares of the Common Stock of the Company for each
$1,000 principal amount of Debentures, or at the adjusted Conversion Rate in
effect at the date of conversion determined as provided in the Indenture, upon
surrender of this Debenture to the Company at its office or agency maintained
for that purpose in the Borough of Manhattan, the City of New York, accompanied
(if so required by the Company) by instruments of registration of transfer, in
form satisfactory to the Company, duly executed by the registered holder or by
his duly authorized attorney. If as a result of a Change in Control the holder
exercises its option to require the Company to repurchase this Debenture, such
right to convert shall terminate upon receipt by the Company of written notice
of exercise of such option (unless the Company shall default in making the
repurchase payment when due, in which case the conversion right shall terminate
at the close of business on the date such default is cured and such Debenture is
repurchased). No adjustment is to be made on conversion for interest accrued
hereon or for dividends on Common Stock issued on conversion.
However, Debentures surrendered for conversion during the period
between the close of business on any interest payment record date and the close
of business on the corresponding interest payment date (except Debentures called
for redemption on a redemption date) must be accompanied by payment of an amount
equal
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to the interest payment to be received on such interest payment date with
respect to such Debenture presented for conversion. No fractional shares will be
issued upon any conversion but, subject to the conditions provided in the
Indenture, the Company will deliver a check for the market value of the
fractional share.
Prior to due presentment for registration of transfer, the
Company, the Trustee, any paying agent and any Debenture registrar may deem and
treat the registered holder hereof as the absolute owner hereof (whether or not
this Debenture shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone) 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 Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer, trustee 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 equity, 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 issue hereof, expressly waived and released by every
holder or owner hereof, as more fully provided in the Indenture.
All terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
AND WHEREAS, all acts and things necessary to make the
Debentures, when executed and delivered by the Company and authenticated by the
Trustee and delivered as in this Indenture provided, the valid, binding and
legal obligations of the Company, and to constitute these presents a valid
indenture and agreement, have been done and performed, and the execution and
delivery of this Indenture and the issue hereunder of the Debentures have in all
respects been duly authorized, and the Company, in the exercise of the legal
right and power in it vested, executes and delivers this Indenture and proposes
to make, execute, issue and deliver the Debentures;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Debentures are and are to be authenticated, issued and held, and in
consideration of the premises, of the purchase and acceptance of the Debentures
by the holders thereof and of the sum of one dollar to it duly paid by the
Trustee at the execution and delivery of these presents, the receipt whereof is
hereby acknowledged, the Company covenants
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and agrees with the Trustee, for the equal and proportionate benefit of the
respective holders from time to time of the Debentures, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions. The terms defined in this Section
1.01 (except as in this Indenture otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in
this Section 1.01. All other terms used in this Indenture which are defined in
the Trust Indenture Act of l939 or which are by reference in such act defined in
the Securities Act of l933, as amended (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act as
in force at the date of the execution of this Indenture.
Board of Directors:
The term "Board of Directors" shall mean the board of directors
of the Company.
Business Day:
The term "Business Day" shall mean any Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in The City of New York are authorized by law, or required by executive order,
to close.
Change in Control:
The term "Change in Control" shall be as defined in Section
3.06.
Claim:
The term "claim" shall be defined in Section 13.01.
Closing Price:
The term "Closing Price" shall mean the last sale price as shown
on the Composite Tape of The New York Stock Exchange, Inc., or, in case no such
sales take place on such day, the average of the closing bid and asked prices on
the New York Stock Exchange, or, if the Common Stock is not listed or admitted
to trading on such exchange, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading, or, if it is not listed
or admitted to trading on any national securities exchange, the average of the
closing bid and asked prices as furnished by any
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New York Stock Exchange member firm selected from time to time by the Board of
Directors of the Company for such purpose (other than the Company or a
subsidiary thereof).
Common Stock:
The term "Common Stock" shall be as defined in Section 4.04(i).
Company:
The term "Company" shall mean General DataComm Industries, Inc.
and, subject to the provisions of Article Twelve,shall also include its
successors and assigns.
Conversion Rate; Conversion Price:
The term "Conversion Rate" shall mean the number of shares of
Common Stock for which each $1,000 principal amount of Debentures may be
converted from time to time as provided in Article Four. The relationship
between the Conversion Rate and the "Conversion Price" shall be such that the
conversion price shall equal $1,000 divided by the Conversion Rate.
Convertible Exchangeable Preferred Stock:
The term "Convertible Exchangeable Preferred Stock" shall mean
the Company's 9% Cumulative Convertible Exchangeable Preferred Stock ($l.00 par
value per share).
Corporate Trust Office of the Trustee:
The term "Corporate Trust Office of the Trustee", or any similar
term, shall mean the principal office of the Trustee at which at any particular
time its corporate trust business shall be administered, which office is, at the
date of the execution of this Indenture, located at 2 Broadway, New York, N.Y.
10004.
Date of Conversion:
The term "Date of Conversion" with respect to any Debenture
shall mean the date on which such Debenture shall be surrendered for conversion
in accordance with the provisions of Article Four.
Debenture or Debentures:
The term "Debenture" or "Debentures" shall mean any Debenture or
Debentures, as the case may be, authenticated and delivered under this
Indenture.
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Debenture Registrar:
The term "Debenture Registrar" shall be as defined in Section
2.05.
Debentureholder:
The terms "Debentureholder", "holder of Debentures", "holders",
or other similar terms, shall mean the registered holder of any Debenture.
Depositary:
The term "Depositary" shall mean with respect to any securities
issued in whole or in part in the form of one or more Global Securities, the
clearing agency that is registered under the Securities Exchange Act of 1934 and
designated to act as Depositary for such securities, as contemplated by Section
2.12 or any successor clearing agency registered under the Securities Exchange
Act of 1934 as contemplated by Section 2.12.
Event of Default:
The term "Event of Default" shall mean any event specified in
Section 7.0l continued for the period of time, if any, therein designated.
Execution of Debentures:
A Debenture which is signed in accordance with the provisions of
Section 2.04 of this Indenture or which bears the facsimile signatures permitted
by such provisions shall be deemed to be executed, and the time of such
execution shall be deemed to be the time that such signing occurs or such
facsimile signatures are imprinted or otherwise reproduced on such Debenture.
Indenture:
The term "Indenture" shall mean this instrument as originally
executed, or, if amended or supplemented, as so amended or supplemented.
Interest Payment Date:
The term "Interest Payment Date" shall mean each March 30 and
September 30.
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Interest Payment Record Date:
The term "Interest Payment Record Date" shall be as defined in
Section 2.03.
Market Price:
The term "Market Price" shall be as defined in Section 4.04(d).
Market Rate:
The term "Market Rate" shall be as defined in Section 3.07.
9% Debentures:
The term "9% Debentures" shall mean the Company's 9%
Convertible Subordinated Debentures due 2006.
Obligations:
The term "Obligations" shall be as defined in Section 13.01.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed
by the Chairman of the Board, the President or a Vice President and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary
of the Company. Each zsuch certificate shall include the statements provided for
in Section l6.06.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing
signed by legal counsel who shall be satisfactory to the Trustee, and who may be
an employee of or counsel to the Company. Each such opinion shall include the
statements provided for in Section l6.06.
Outstanding:
The term "Outstanding", when used with reference to Debentures,
shall, subject to the provisions of Section 9.04, mean, as of any particular
time, all Debentures authenticated and delivered by the Trustee under this
Indenture, except
(a) Debentures theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
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(b) Debentures or portions thereof for the payment or
redemption of which moneys in the necessary amount shall have been deposited in
trust with the Trustee, provided that if such Debentures or portions are to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been given as in Article Three provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Debentures in lieu of or in substitution for which
other Debentures shall have been authenticated and delivered pursuant to the
terms of Section 2.07.
Person:
The term "Person" shall mean any individual, corporation,
partnership, limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization, government or agency or political
subdivision thereof or any other entity
Put Repurchase Date:
The term "Put Repurchase Date" shall be as defined in Section
3.07.
Put Repurchase Right:
The term "Put Repurchase Right" shall be as defined in Section
3.07.
Put Repurchase Right Notice:
The term "Put Repurchase Right Notice" shall be as defined in
Section 3.07.
Registered Holder:
The term "Registered Holder" shall mean the person or persons in
whose name or names a particular Debenture shall be registered on the books of
the Company kept for that purpose in accordance with the terms of this
Indenture.
Repurchase Date:
The term "Repurchase Date" shall be as defined in Section 3.06.
Repurchase Right Notice:
The term "Repurchase Right Notice" shall be as defined in
Section 3.06.
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Responsible Officer:
The term "Responsible Officer" when used with respect to the
Trustee shall mean the chairman of the board of directors, the president, any
vice president, the secretary, the treasurer, any trust officer, the cashier,
any second or assistant vice president, any assistant trust officer, any
assistant secretary, any assistant treasurer, any assistant cashier, or any
other officer or assistant officer of the Corporate Trust Office of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of and familiarity with the
particular subject.
Senior Indebtedness:
The term "Senior Indebtedness" shall mean the principal of,
premium, if any, and interest on: (a) any and all other indebtedness and
obligations of the Company (including indebtedness of others guaranteed by the
Company) other than the Debentures, whether or not contingent and whether
outstanding on the date of the Indenture or thereafter created, incurred or
assumed, which (i) is for money borrowed; (ii) is evidenced by any bond, note,
debenture or similar instrument; (iii) represents the unpaid balance on the
purchase price of any property, business, or asset of any kind; (iv) is an
obligation of the Company as lessee under any and all leases of property,
equipment or other assets required to be capitalized on the balance sheet of the
lessee under generally accepted accounting principles; (v) is a reimbursement
obligation of the Company with respect to letters of credit; (vi) is an
obligation of the Company with respect to interest swap obligations and foreign
exchange agreements; or (vii) is an obligation of others secured by a lien to
which any of the properties or assets (including, without limitation, leasehold
interests and any other tangible or intangible property rights) of the Company
are subject, whether or not the obligations secured thereby shall have been
assumed by the Company or shall otherwise be the Company's legal liability, and
(b) any deferrals, amendments, renewals, extensions, modifications and
refundings of any indebtedness or obligations of the types referred to above;
provided that Senior Indebtedness shall not include (i) the Debentures; (ii) any
indebtedness or obligation of the Company which, by its terms or the terms of
the instrument creating or evidencing it, is both subordinated to any other
indebtedness or obligations of the Company and is not superior in right of
payment to the Debentures; (iii) any indebtedness or obligation of the Company
to any of its subsidiaries; and (iv) any indebtedness or obligation which is
both incurred by the Company in connection with the purchase of assets,
materials or services in the ordinary course of business and constitutes an
unsecured trade payable. The term Senior Indebtedness does not include the
Company's 9% Debentures if issued in exchange for the Company's Convertible
Exchangeable Preferred Stock.
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Senior Indebtedness Default:
The term "Senior Indebtedness Default" shall mean the occurrence
of any default in the payment of principal, premium, if any, sinking fund, or
interest upon any Senior Indebtedness or any event of default, as defined
therein or in the instrument under which the same is outstanding, permitting the
holder or holders thereof, or its or their designated representatives, or any
trustee under any instrument under which the same is outstanding, to declare
such Senior Indebtedness due and payable prior to the stated maturity thereof.
Senior Subordinated Exchange Notes:
The term "Senior Subordinated Exchange Notes" shall be as
defined in Section 3.07.
Senior Subordinated Indebtedness:
The term "Senior Subordinated Indebtedness" shall mean the
Debentures and other indebtedness of the Company that specifically provides that
such indebtedness is to rank pari passu with other Senior Subordinated
Indebtedness of the Company and is not subordinated by its terms to any
indebtedness of the Company which is not Senior Indebtedness.
Subsidiary:
The term "Subsidiary" shall mean any corporation of which more
than 50% of the outstanding stock having ordinary voting power to elect a
majority of the Board of Directors of such corporation, irrespective of whether
or not at the time stock of any other class or classes of such corporation shall
have or might have voting power by reason of the happening of any contingency,
is at the time directly or indirectly owned by the Company or by any subsidiary
or subsidiaries, or by the Company and one or more subsidiaries.
Trading Day:
The term "Trading Day" shall mean a day on which the New York
Stock Exchange (or any successor to such Exchange) is open for the transaction
of business or, if the Common Stock is not listed or admitted to trading on such
Exchange, a day on which the principal national securities exchange on which the
Common Stock is listed is open for the transaction of business or, if the Common
Stock is not listed or admitted to trading on any national securities exchange,
a day on which any New York Stock Exchange member firm is open for the
transaction of business.
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Trustee:
The term "Trustee" shall mean the Trustee under this Indenture
for the time being, whether original or successor.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939", subject to the
provisions of Sections 11.01 and 11.02, shall mean the Trust Indenture Act of
1939 as in force at the date of execution of this Indenture.
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF DEBENTURES
SECTION 2.01. Amount, Authentication and Delivery of Debentures.
(a) The Company may issue the Senior Subordinated Exchange Notes in an aggregate
principal amount not to exceed $25,000,000 in exchange for Debentures in
accordance with the provisions of Section 3.07. The Senior Subordinated Exchange
Notes will have and be subject to all of the same terms and provisons as the
Debentures under this Indenture and shall be governed by this Indenture to the
extent permitted by law except that the provisions of Article Four will not
apply and the Senior Subordinated Exchange Notes will bear a separate rate of
interest determined in accordance with the provisions of Section 3.07.
References to the Debentures shall be deemed to also refer to the Senior
Subordinated Exchange Notes except with respect to the provisons of Article Four
and the rate of interest.
(b) Debentures, for not to exceed the aggregate principal amount
of twenty-five million dollars ($25,000,000), except as provided in Section
2.07, may, upon the execution of this Indenture or from time to time thereafter,
be executed by the Company and delivered to the Trustee for authentication, and
the Trustee shall thereupon authenticate and deliver said Debentures to or upon
the written order of the Company, signed by its Chairman of the Board, President
or a Vice President and by its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, without further action by the Company.
SECTION 2.02. Form of Debentures and Trustee's Certificate. The
Debentures and the Trustee's certificate of authentication to be borne by the
Debentures shall be substantially of the tenor and purport as in this Indenture
above recited, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made or as may be required to
comply with anylaw or with any rule or regulation made
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pursuant thereto or with any rule or regulation of any stock exchange on which
the Debentures may be listed, or to conform to usage.
SECTION 2.03. Date of Debentures and Denominations. The
Debentures shall be issuable as registered Debentures without coupons in
denominations of One Thousand Dollars ($1,000) and integral multiples thereof.
Except as provided in the next sentence, the Debentures shall be
dated the date of authentication and shall bear interest from the date of the
issuance, payable semi-annually on March 30 and September 30, commencing March
30, 1998, or, if interest to any March 30 or September 30 has been paid or duly
provided for, from the March 30 or September 30, as the case may be, next
preceding the date thereof to which interest has been paid or duly provided for,
unless such date is a date to which interest has been paid or duly provided for,
in which case they shall bear interest from the date thereof. However, so long
as there shall be no existing default in the payment of interest on the
Debentures, each Debenture authenticated after the close of business on the
record date (as hereinafter defined) for any interest payment date and prior to
such Interest Payment Date shall bear interest from such Interest Payment Date;
provided, however, that if and to the extent the Company shall default in the
payment of the interest due on such Interest Payment Date, then all such
Debentures shall bear interest from March 30 or September 30, as the case may
be, next preceding the date of such Debentures to which interest has been paid
or duly provided for, or if no interest has been paid or duly provided for on
the Debentures, from the date of authentication of the Debentures. The term
"record date" as used with respect to a semi-annual Interest Payment Date shall
mean the March 15 or September 15, as the case may be, next preceding such
Interest Payment Date.
The person in whose name any Debenture is registered at the
close of business on the record date with respect to a semi-annual Interest
Payment Date shall be entitled to receive the interest payable on such Interest
Payment Date notwithstanding the cancellation of such Debenture upon any
registration of transfer or exchange thereof subsequent to such record date and
prior to such Interest Payment Date; provided, however, that if and to the
extent the Company shall default in the payment of the interest due on such
Interest Payment Date, such defaulted interest shall be paid to the persons in
whose names the Debentures are registered on a record date fixed by the Company
for the payment of such defaulted interest by notice given by mail by or on
behalf of the Company to the holders of Debentures not less than 15 days
preceding such record date, which record shall be not more than 15 days nor less
than 5 business days before the date for such payment.
If any Debenture or portion thereof is called for redemption on
a redemption date after the close of business on the record date next preceding
any March 30 or September 30 and before the opening of business on such March
__, or September 30 and notice of such redemption has been mailed and funds for
such
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redemption have been duly provided, interest accrued to the redemption date
on such Debenture or portion so called shall be paid only against surrender of
the Debenture for redemption in accordance with said notice.
SECTION 2.04. Execution and Authentication of Debentures and Use
of Temporary Debentures. The Debentures shall be signed on behalf of the Company
by, or bear the facsimile signature of, its Chairman of the Board, President or
a Vice President, under its corporate seal attested by the manual or facsimile
signature of its Secretary or an Assistant Secretary or the Treasurer. Such
facsimile signatures may be imprinted or otherwise reproduced on the Debenture.
The Company may adopt and use the signature or facsimile signature of any person
who shall be any such officer of the Company at the time of the execution of
Debentures, irrespective of the date as of which the same shall be executed, or
of any person who shall have been any such officer of the Company,
notwithstanding the fact that at the time the Debentures shall be authenticated
and delivered or disposed of, he shall have ceased to be such officer of the
Company. The seal of the Company may be in the form of a facsimile of the seal
of the Company and may be impressed, affixed, imprinted or otherwise reproduced
on the Debentures.
Only such Debentures as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed by the
Trustee, shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. Such certificate by the Trustee upon any Debenture
executed by the Company shall be conclusive evidence that the Debenture so
authenticated has been duly authenticated hereunder and that the holder is
entitled to the benefits of this Indenture.
Pending the preparation of definitive Debentures, the Company
may execute, and upon Company orders the Trustee shall authenticate and deliver,
temporary Debentures which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denominations, substantially of the
tenor of the definitive Debentures in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Debentures may determine, as evidenced by their
execution of such Debentures.
If temporary Debentures are issued, the Company will cause
definitive Debentures to be prepared without unreasonable delay. After the
preparation of definitive Debentures, the temporary Debentures shall be
exchangeable for definitive Debentures upon surrender of the temporary
Debentures at any office or agency of the Company designated pursuant to Section
5.02, without charge to the holder. Upon surrender for cancellation of any one
or more temporary Debentures the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Debentures of authorized denominations. Until so exchanged the
temporary Debentures shall in all respects be entitled to the same benefits
under this Indenture as definitive Debentures.
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SECTION 2.05. Exchange, Registration and Transfer of Debentures.
The Company shall keep at the Corporate Trust Office or agency to be maintained
by the Company as provided in Section 5.02 a register in which, subject to such
reasonable regulations as it may prescribe, it will register all Debentures and
upon surrender of any Debenture for registration of transfer at such office or
agency, the Company shall execute and register and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Debenture or Debentures for a like aggregate principal amount of Debentures of
any authorized denominations.
Unless and until otherwise determined by the Company by
resolution of its Board of Directors, the register of the Company in the Borough
of Manhattan, City and State of New York, for the purpose of registration,
exchange or registration of transfer of the Debentures shall be kept at the
Corporate Trust Office of the Trustee and, for this purpose, the Trustee is
hereby initially designated "Debenture Registrar".
The several authorized denominations of Debentures shall be
interchangeable in equal aggregate principal amounts. Debentures to be exchanged
shall be surrendered at the office or agency to be maintained by the Company for
the purpose as provided in Section 5.02 and the Company shall execute and
register the transfer thereof and the Trustee shall authenticate and deliver in
exchange therefor the Debenture or Debentures which the Debentureholder making
the exchange shall be entitled to receive, bearing numbers not contemporaneously
outstanding.
All Debentures presented or surrendered for registration of
transfer, exchange, redemption, conversion or payment shall (if so required by
the Company or the Trustee) be duly endorsed by, or be accompanied by written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee duly executed by, the registered holder or his attorney duly
authorized in writing.
For any exchange or registration of transfer or conversion or
redemption of Debentures, the Company, at its option, may require the payment of
a sum sufficient to reimburse it for any tax or other governmental charge that
may be imposed in relation thereto. No service charge shall be made for any such
transaction.
SECTION 2.06. When Company Not Required To Make Transfers or
Exchanges. The Company shall not be required to register the transfer of or
exchange Debentures for a period of l5 days next preceding any selection of
Debentures to be redeemed, nor shall it be required to register the transfer of
or exchange any Debentures or portions thereof called or being called for
redemption in whole or in part except, in the case of any Debentures to be
redeemed in part, the portion thereof not so to be redeemed.
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Debentures.
In case any Debenture shall become mutilated or be destroyed, lost or stolen,
the Company in its discretion may execute, and upon its request the Trustee
shall
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authenticate and deliver, a new Debenture of like tenor, bearing a number
not contemporaneously outstanding and such notation as may be required by the
rules and regulations of any national securities exchange upon which the
Debentures are, or are to be, listed, in exchange and substitution for the
mutilated Debenture or in lieu of and in substitution for the Debenture so
destroyed, lost or stolen. In every case the applicant for a substituted
Debenture shall furnish to the Company and to the Trustee such security or
indemnity or both as may be required by them to save each of them, and, if
requested, any paying agents and Debenture Registrars of the Company, harmless
from all risk, however remote, and the applicant shall also furnish to the
Company and to the Trustee evidence to their satisfaction of the mutilation,
destruction, loss or theft of the applicant's Debenture and of the ownership
thereof. Subject to its receipt of such security or indemnity or both and of
such evidence, the Trustee shall authenticate any such substituted Debenture and
deliver the same upon the written request or authorization of any officer of the
Company. Upon the issue of any substituted Debenture, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses, including
counsel fees, of the Company, the Trustee, and any paying agent or Debenture
Registrar, connected therewith. In case any Debenture which has matured or is
about to mature shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Debenture, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
Debenture) if the applicant for such payment shall furnish to the Company and to
the Trustee such security or indemnity as may be required by them to save each
of them harmless, and evidence to the satisfaction of the Company and the
Trustee of the mutilation, destruction, loss or theft of such Debenture and of
the ownership thereof.
Every Debenture issued pursuant to the provisions of this
Section in substitution for any Debenture which is alleged to have been
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Debenture shall be
found at any time, or be enforceable by anyone, and such new Debenture shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Debentures duly issued hereunder. All Debentures shall be held
and owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement, or payment of mutilated, destroyed, lost or
stolen Debentures and shall preclude any and all other rights or remedies,
notwithstanding any law or statute existing or hereinafter enacted to the
contrary with respect to the replacement, or payment of negotiable instruments
or other securities without their surrender.
SECTION 2.08. Cancellation of Surrendered Debentures. All
Debentures surrendered for the purpose of payment, redemption, conversion,
exchange or registration of transfer shall be delivered to the Trustee and shall
be canceled by it, and no Debentures shall be issued in lieu thereof except as
expressly required or permitted by any of the provisions of this Indenture.
Unless otherwise directed by the
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Company, the Trustee shall cremate or destroy by shredding canceled Debentures
and deliver a certificate thereof to the Company. If the Company shall acquire
any of the Debentures, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Debentures unless and until
the same are delivered to the Trustee, or surrendered to the Trustee, for
cancellation.
SECTION 2.09. Debentureholders and Senior Indebtedness. Nothing
in this Indenture or in the Debentures, expressed or implied, shall give or be
construed to give to any person, firm or corporation, other than the parties
hereto and the holders of the Debentures and, to the extent provided in Article
Thirteen, the holders of Senior Indebtedness, any legal or equitable right,
remedy or claim under or in respect of this Indenture, or under any covenant,
condition or provision herein contained, all of the covenants, conditions and
provisions herein being for the sole benefit of the parties hereto and of the
holders of the Debentures and, to the extent aforesaid, the holders of Senior
Indebtedness.
SECTION 2.10. Persons Deemed Owners. Prior to due presentment
of Debentures for registration of transfer, the Company or the Trustee and any
agent of the Company or the Trustee may treat the person in whose name such
Debentures are registered as the owner of such Debentures for purpose of
receiving payment of principal of, and (subject to Section 2.05) interest on
such Debentures and for all other purposes whatsoever, whether or not such
Debentures are 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 2.11. CUSIP Numbers. The Company in issuing Debentures
shall use "CUSIP" numbers (if then generally in use) in addition to serial
numbers; if so, the Trustee shall use such "CUSIP" numbers in addition to serial
numbers in notice of redemption and repurchase as a convenience to holders;
provided that any such notice may state that no representation is made as to the
correctness of such CUSIP numbers either as printed on the Debentures or as
contained in any notice of a redemption or repurchase and that reliance may be
placed only on the serial or other identification numbers printed on the
Debentures, and any such redemption or repurchase shall not be affected by any
defect in or omission of such CUSIP numbers.
SECTION 2.12. Global Securities. The Debentures, unless
registered under the Securities Act of 1933, as amended ("Securities Act") shall
be issued initially in the form of one or more "Restricted Global Securities"
The Depositary or its nominee shall be the holder of the Global Securities, and
owners of beneficial interests in the Security represented by the Global
Securities shall hold such interests pursuant to the procedures and practices of
the Depositary. Any such owner's beneficial ownership of any such Debentures
will be shown only on, and the transfer of such ownership interest shall be
effected only through, records maintained by the Depositary or its nominee.
Transfer of interests in a Global Security shall be subject to the
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provisions of Section 2.05. All interests in a Global Security may be subject to
the procedures and requirements of the Depositary.
Unless the Depositary notifies the Company that it is unwilling or
unable to continue as depositary for a Global Security or ceases to be a
"Clearing Agency" registered under the Securities Exchange Act of 1934
("Exchange Act") or announces an intention permanently to cease business or does
in fact do so and a successor Depositary is not appointed by the Company within
90 days of such notice, owners of beneficial interests in a Global Security will
not be entitled to have any portions of such Global Security registered in their
names, will not receive or be entitled to receive physical delivery of
Securities in definitive form and will not be considered the owners or holders
of the Global Security. Any Global Security exchanged upon the occurrence of an
event described in the preceding sentence shall be so exchanged in whole and not
in part. Any Security issued in exchange for a Global Security or any portion
thereof shall be a Global Security, provided that any such Security so issued
that is registered in the name of a Person other than the Depositary or a
nominee thereof shall not be a Global Security.
Securities issued in exchange for a Global Security or any portion
thereof pursuant to the preceding paragraph above shall be issued in definitive,
fully registered form, without interest coupons, shall have an aggregate
principal amount equal to that of such Global Security or portion thereof to be
so exchanged, shall be registered in such names and be in such authorized
denominations as the Depositary shall designate and shall bear any legends
required hereunder. Any Global Security to be exchanged in whole shall be
surrendered by the Depositary to the Trustee, as Debenture Registrar. With
regard to any Global Security to be exchanged in part, either such Global
Security shall be so surrendered for exchange or, if the Trustee is acting as
custodian for the Depositary or its nominee with respect to such Global
Security, the principal amount thereof shall be reduced, by an amount equal to
the portion thereof to be so exchanged, by means of an appropriate adjustment
made on the records of the Trustee. Upon any such surrender or adjustment, the
Trustee shall authenticate and deliver the Security issuable on such exchange to
or upon the order of the Depositary or an authorized representative thereof. In
the event of the occurrence of any of the events specified in the preceding
paragraph, the Company will promptly make available to the Trustee a reasonable
supply of certificated Securities in definitive form.
Except as otherwise set forth in the Indenture or a Global Security,
owners of beneficial interests in the Securities evidenced by a Global Security
will not be entitled to any rights under the Indenture with respect to such
Global Security, and the Depositary or its nominee may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the owner
and Holder of such Global Security for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any such
agent from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or its nominee or impair, as between
the Depositary or its nominee and such owners of beneficial interests, the
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operation of customary practices governing the exercise of the rights of the
Depositary or its nominee as Holder of any Security.
The Depositary shall be a clearing agency registered under the Exchange
Act. Initially, any and all Global Securities issued hereunder 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 The Depositary
Trust Company.
ARTICLE THREE
REDEMPTION OF DEBENTURES
SECTION 3.01. Debentures Redeemable. Subject to the provisions
of Article Thirteen hereof, the Company may, at its option, redeem the
Debentures, in whole or in part, at any time on and after September 30, 2000,
and prior to maturity, on not less than 30 nor more than 60 days' notice to each
Debentureholder, at the redemption prices (expressed as percentages of the
principal amount thereof to be redeemed) set forth in the tabulation in the form
of Debenture provided for herein, in each case, with accrued interest to the
date of redemption (but if the date fixed for redemption is a semi-annual
interest payment date, the interest installment payable on such date shall,
subject to Section 2.03, be paid to the holder at the close of business on the
preceding record date), provided, however, that the Debentures may not be
redeemed on or after September 30, 2000 and prior to September 30, 2001 unless
the Closing Price of the Common Stock has equaled or exceeded l50% of the
Conversion Price per share then in effect for at least 20 trading days within 30
consecutive trading days ending within five trading days before notice of
redemption is mailed.
SECTION 3.02. Notice of Redemption. In case the Company shall
desire to exercise such right to redeem all or any part of the Debentures in
accordance with the right reserved so to do, it shall give notice of such
redemption to holders of the Debentures to be redeemed in whole or in part as
hereinafter in this Section provided.
Notice of redemption to the holders of Debentures to be
redeemed, in whole or in part, shall be given by mailing, first class postage
prepaid, a notice of such redemption not later than on the thirtieth day, and
not earlier than on the sixtieth day, before the date fixed for redemption to
such holders at their last addresses as they shall appear upon the registration
books. Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give notice by mail, or
any defect in the notice to the holder of any Debentures designated for
redemption in whole or in part, shall not affect the validity of the proceedings
for the redemption of any other Debentures.
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Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Debentures are to be redeemed, and
shall specify where payment of the redemption price is to be made, upon
presentation and surrender of such Debentures, and shall state that interest
accrued to the date fixed for redemption will be paid as specified in said
notice, and that from and after said date interest thereon will cease to accrue.
Such notice shall also state the current Conversion Price and the date on which
the right to convert such Debentures or portions thereof into Common Stock will
terminate. In case any Debenture is to be redeemed in part only, the notice
shall state the portion of the principal amount thereof to be redeemed (which
shall be $1,000 or an integral multiple of $1,000) and shall state that on and
after the redemption date, upon surrender of such Debenture, a new Debenture or
Debentures in principal amount equal to the unredeemed portion thereof will be
issued.
If less than all the Debentures are to be redeemed, the Company
shall give the Trustee 45 days prior written notice, or such shorter notice as
may be acceptable to the Trustee, in advance of the redemption date as to the
aggregate principal amount of Debentures to be redeemed, and thereupon the
Trustee shall select the particular Debentures or parts thereof so to be
redeemed by lot, pro rata, or according to such other method as the Trustee
shall deem proper in its discretion and shall thereafter promptly notify the
Company in writing of the numbers of the Debentures (or portions thereof) to be
redeemed provided that no Debentures shall be redeemed; in part in amounts other
than $1,000 or integral multiples thereof. For the purpose of determining the
Debentures to be redeemed, the Trustee need not treat as outstanding any
Debentures authenticated within l5 days prior to its selection.
SECTION 3.03. Debentures Called for Redemption Due and Payable.
If the giving of notice of redemption shall have been completed as provided in
Section 3.02, the Debentures or portions of Debentures specified in such notice
shall become due and payable on the date and at the place stated in such notice
at the applicable redemption price, together with interest accrued to the date
fixed for redemption, and on and after such date of redemption (unless the
Company shall default in the payment of such Debentures or portions thereof at
the redemption price, together with interest accrued thereon to the date fixed
for redemption) interest on the Debentures or portions of Debentures so called
for redemption shall cease to accrue. On presentation and surrender of such
Debentures on or after said date at said place of payment in said notice
specified, the said Debentures shall be paid and redeemed by the Company at the
applicable redemption price, together with interest accrued thereon to the date
fixed for redemption.
SECTION 3.04. Deposit of Redemption Moneys. Anything in this
Indenture contained to the contrary notwithstanding, if the giving of the notice
of redemption shall have been completed as provided in Section 3.02, and if the
Company shall have deposited in trust with the Trustee funds (to be immediately
available for payment) sufficient to redeem the Debentures to be redeemed on the
date fixed for
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redemption, at the applicable redemption price, together with interest accrued
to the date fixed for redemption, then all obligations of the Company in respect
of such Debentures shall cease and be discharged and subject to the provisions
of Article Fourteen, the holders of such Debentures shall thereafter be
restricted exclusively to such funds for any and all claims of whatsoever nature
on their part under this Indenture, or in respect of such Debentures.
SECTION 3.05. Redemption in Part. Upon presentation and
surrender of any Debenture which is to be redeemed in part only, the Company
shall execute and the Trustee shall authenticate and deliver to the holder
thereof, at the expense of the Company, a new Debenture or Debentures of
authorized denominations in principal amount equal to the unredeemed portion of
the Debenture so presented.
SECTION 3.06. Redemption Following Change in Control. (a) Each
holder of Debentures shall have the right, as provided in this Section 3.06,
upon a Change in Control (as defined in this Section 3.06), subject to certain
conditions and restrictions, to require the Company to repurchase and, upon
exercise of such holder's right, the Company shall repurchase all or any part
(in integral multiples of $1,000) of their Debentures at a repurchase price of
100% of the principal amount thereof, plus accrued and unpaid interest, if any,
to the Repurchase Date (as defined herein), in cash. The Company shall have the
right to satisfy such repurchase obligation by the issuance and delivery of
shares of its Common Stock valued at the Market Price (as defined herein) in
exchange for certificates evidencing the Debentures.
(b) The term "Change in Control" as used in this Section 3.06
means the occurrence of any of the following events after the date of original
issuance of the Debentures: (i) any person (including any entity or group deemed
to be a "person" under Section 13(d)(3) or Section 14(d)(2) of the Exchange Act)
becomes the direct or indirect beneficial owner (as determined in accordance
with Rule 13d-3 under the Exchange Act) of shares of the Company's capital stock
representing greater than 50% of the total voting power of all shares of capital
stock of the Company entitled to vote in the election of Directors under
ordinary circumstances or to elect a majority of the Board of Directors of the
Company, (ii) the Company sells, transfers or otherwise disposes of all or
substantially all of the assets of the Company, (iii) when, during any period of
12 consecutive months after the date of original issuance of the Debentures,
individuals who at the beginning of any such 12-month period constituted the
Board of Directors of the Company (together with any new directors whose
election by such Board or whose nomination for election by the stockholders of
the Company was approved by a vote of a majority of the directors still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved), cease for any
reason to constitute a majority of the Board of Directors of the Company then in
office (excluding from such calculation any election of directors by holders of
Convertible Exchangeable Preferred Stock), or (iv) the date of the consummation
of the merger or consolidation of the Company with
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another Person where the stockholders of the Company immediately prior to the
merger or consolidation would not beneficially own, immediately after the merger
or consolidation, shares entitling such stockholders to 50% or more of all votes
(without consideration of the rights of any class of stock to elect directors by
a separate class vote) to which all stockholders of the Person issuing cash or
securities in the merger or consolidation would be entitled in the election of
directors, or where members of the Board of Directors of the Company immediately
prior to the merger or consolidation, would not, immediately after the merger or
consolidation, constitute a majority of the board of directors of the Company
issuing cash or securities in the merger or consolidation.
(c) Each holder of Debentures shall have the right effective
for 30 days following the receipt of a notice disclosing such Change in Control
(the "Repurchase Right Notice") to require the Company to repurchase all or any
part (in integral multiples of $1,000) of such holder's Debentures, on the date
(the "Repurchase Date") that is no later than 45 days after the date of the
Repurchase Right Notice, at a repurchase price equal to 100% of the principal
amount thereof, plus accrued and unpaid interest to the Repurchase Date with
respect to such Debentures. On or before the 30th day following any Change in
Control, the Company, or at the request of the Company, the transfer agent,
shall mail the Repurchase Right Notice to each holder of record of the
Debentures stating (i) that a Change in Control has occurred and that such
holder has the right to require the Company to repurchase such holder's
Debentures, (ii) the Repurchase Date, (iii) the date by which the right to cause
repurchase must be exercised, (iv) the price at which such repurchase is to be
made, if the right to cause repurchase is exercised and (v) a description of the
procedure which such holder must follow to exercise a right to cause repurchase
and whether or not the Company presently intends to deliver shares of its Common
Stock in payment therefor. No failure of the Company to give the foregoing
notice shall limit any such holder's right to exercise a repurchase right. To
exercise the repurchase right, on or before the 30th day after the date of the
Repurchase Right Notice, holders of Debentures must deliver written notice to
the Company (or an agent designated by the Company for such purposes) of the
holder's exercise of such right, together with the certificate for such
Debentures with respect to which the right is being exercised, duly endorsed for
transfer. Such written notice shall be irrevocable except with respect to
conversions permitted prior to the Repurchase Date. If the Repurchase Date is
between a regular record date for the payment of interest and the next
succeeding Interest Payment Date, any Debentures to be repurchased must be
accompanied by payment of an amount equal to the interest, payable on such next
succeeding Interest Payment Date on the amount to be repurchased, and interest
will be paid on such next succeeding Interest Payment Date to the registered
holder of such Debentures on the immediately preceding record date. Debentures
repurchased on an Interest Payment Date need not be accompanied by any payment,
and the interest on Debentures being repurchased will be paid on such Interest
Payment Date to the registered holder of such Debentures on the corresponding
record date. The Company shall have 10 days from receipt of such
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exercise to notify the holder whether the Company will redeem the Debentures
and/or deliver shares of Common Stock in satisfaction of its obligations
hereunder.
SECTION 3.07. Redemption at Option of Holders. Each holder of Debentures shall
have the right ("Put Repurchase Right") effective during the day 30 period
commencing September 30, 2000, to give the Company a notice (the "Put Repurchase
Right Notice") to require the Company to repurchase all or any part (in integral
multiples of $1,000) of such holder's Debentures, on the date (the "Put
Repurchase Date") that is no later than 15 days after the expiration of such 30
day period for providing the Put Repurchase Right Notice, either, at the
Company's option, in cash at a repurchase price equal to 100% of the principal
amount thereof, plus accrued and unpaid interest to the Put Repurchase Date with
respect to such repurchased Debentures or in exchange for Senior Subordinated
Exchange Notes as described below. To exercise the Put Repurchase Right, a
holder of Debentures must deliver the Put Repurchase Right Notice to the Company
(or an agent designated by the Company for such purposes) of the holder's
exercise of such Put Repurchase Right, together with the certificate for such
Debentures with respect to which the Put Repurchase Right is being exercised,
duly endorsed to the Company for transfer, with signature guaranteed to the
reasonable satisfaction of the Company or its said agent. Such written Put
Repurchase Right Notice shall be irrevocable from and after the date of such Put
Repurchase Right Notice. If the Put Repurchase Date is between a regular record
date for the payment of interest and the next succeeding Interest Payment Date,
any Debentures to be repurchased must be accompanied by payment of an amount
equal to the interest, payable on such next succeeding Interest Payment Date on
the amount to be repurchased, and interest will be paid on such next succeeding
Interest Payment Date to the registered holder of such Debentures on the
immediately preceding record date. Debentures repurchased on an Interest Payment
Date need not be accompanied by any payment, and the interest on Debentures
being repurchased will be paid on such Interest Payment Date to the registered
holder of such Debentures on the corresponding record date. The Company shall
have 10 days from receipt of such Put Repurchase Right Notice, to notify the
holder of the Debentures with respect to which such Put Repurchase Right Notice
was given, whether the Company will redeem the Debentures for cash and/or
deliver to such holder Senior Subordinated Notes due 2002 ("Senior Subordinated
Exchange Note(s)"), in satisfaction of the Company's obligations with respect to
the Put Repurchase Right of such holder under this Section 3.07, for such
Debentures. Failure of the Company to duly give notice to such holder within
such 10 day period shall not affect the Company's obligation to repurchase the
Debentures in accordance with the terms of this Section 3.07 or the Company's
right to elect to repurchase the Debentures for either, at its option, cash or
Senior Subordinated Exchange Notes as set forth herein. Such Senior Subordinated
Exchange Notes will be subordinated to the same extent as the Debentures, rank
pari passu with the Debentures and will be governed by this Indenture to the
extent permitted by law and will have all the same terms and conditions as the
Debentures including the same subordination provisions, maturity date, Interest
Payment Date and Interest Record Date, but will not
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be convertible into Common Stock of the Company and will bear a separate rate of
interest. The Senior Subordinated Exchange Notes will bear interest at a rate in
order for the Senior Subordinated Exchange Notes to have a market value of 100%
of their principal amount on the Put Repurchase Date as determined by a
nationally recognized investment banking firm chosen by the Company (which rate
shall in no event be greater than the rate permitted by law), provided the
interest rate on the Senior Subordinated Exchange Notes shall not exceed 14% per
annum. As soon as such interest rate is determined, the Company and the Trustee
will execute a supplement to this Indenture, as may be required by law,
governing such issuance of the Senior Subordinated Exchange Notes.
ARTICLE FOUR
CONVERSION OF DEBENTURES
SECTION 4.01. Conversion Privilege and Conversion Price. Subject
to and upon compliance with the provisions of this Article Four, at the option
of the holder, any Debenture, or any portion of the principal amount thereof
which is $1,000 or an integral multiple of $1,000, may, at any time during usual
business hours prior to September 30, 2002 (or if such Debenture or portion
thereof is called for redemption prior to September 30, 2002, then in respect of
such Debenture or portion thereof to and including but not after the close of
business on the date fixed for such redemption unless the Company shall default
in making the redemption payment when due, in which case the conversion right
shall terminate at the close of business on the date such default is cured and
such Debenture is redeemed), be converted into fully paid and nonassessable
shares of Common Stock of the Company at the equivalent Conversion Rate then in
effect. If as a result of a Change in Control the holder exercises its option to
require the Company to repurchase the Debenture, such right to convert shall
terminate upon receipt by the Company of written notice of exercise of such
option unless the Company shall default in making the repurchase payment when
due, in which case the conversion right shall terminate at the close of business
on the date such default is cured and such Debenture is repurchased. The
Conversion Rate shall be adjusted in certain instances as provided in Section
4.04. The price at which the Company's Common Stock shall be delivered upon
conversion shall be initially U.S. $6.86 per share of Common Stock. The
Conversion Price shall be adjusted in certain instances as provided in Section
4.04.
SECTION 4.02. Manner of Exercise of Conversion Privilege. In
order to exercise the conversion privilege, the holder of any Debenture to be
converted shall surrender such Debenture at any office or agency to be
maintained by the Company for that purpose pursuant to Section 5.02, and shall
give written notice to the Company at such office or agency that the holder
elects to convert such Debenture or a specified portion thereof. Such notice
shall also state the name or names (with address) in which
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the certificate or certificates for shares of Common Stock which shall be
issuable on such conversion shall be issued. Each Debenture surrendered for
conversion shall, unless the shares issuable on conversion are to be issued in
the same name as the registration of such Debenture, be accompanied by
instruments of transfer, in form satisfactory to the Company and the Trustee,
duly executed by the holder or his duly authorized attorney. As promptly as
practicable after the receipt of such notice and the surrender of such Debenture
as aforesaid, the Company shall issue and shall deliver at such office or agency
to such holder, or on his written order, a certificate or certificates for the
number of full shares issuable upon the conversion of such Debenture or portion
thereof in accordance with the provisions of this Article Four and any
fractional interest in respect of a share of Common Stock arising upon such
conversion shall be settled as provided in Section 4.03. In the case of any
Debenture which is converted in part only, the Company shall execute and the
Trustee shall authenticate and deliver to the holder thereof, without service
charge, a new Debenture or Debentures as requested by such holder in an
aggregate principal amount equal to the unconverted portion of the principal of
such Debenture. Each conversion shall be deemed to have been effected on the
date on which such notice shall have been received by the Company or its
conversion agent and such Debenture shall have been surrendered as aforesaid,
and the person or persons in whose name or names any certificate or certificates
for shares of Common Stock shall be issuable upon such conversion shall be
deemed to have become on said date the holder or holders of record of the shares
represented thereby; provided, however, that if the transfer books of the
Company for Common Stock shall be closed on said date, the Company shall not be
required to issue any shares on such conversion until the date on which such
transfer books shall be reopened and such person or persons shall not be deemed
to have become the holder or holders of record of such shares until the date on
which such transfer books shall be reopened, but such conversion shall be
nevertheless be effected when such transfer books shall be reopened at the
Conversion Rate in effect on and otherwise as of the date on which such
Debenture shall have been surrendered to and such notice received by the Company
as aforesaid. The Company covenants and agrees that its books for the transfer
of Common Stock shall not be closed during any period which includes a record
date for a dividend or other distribution on Common Stock. However, Debentures
surrendered for conversion during the period between the close of business on
any Interest Payment Record Date and the close of business on the corresponding
Interest Payment Date (except Debentures called for redemption on a redemption
date) must be accompanied by payment of an amount equal to the interest payment
to be received on such Interest Payment Date with respect to such Debentures
presented for conversion. Subject to the aforesaid requirement for a payment in
the event of conversion after the close of business on the Interest Payment
Record Date next preceding an Interest Payment Date, no adjustment shall be made
for interest accrued on any Debenture that shall be converted or for dividends
on any Common Stock that shall be issued upon the conversion of such Debenture
as provided in this Article Four.
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SECTION 4.03. Fractional Shares. No fractional shares of Common
Stock shall be issued upon conversions of Debentures. If more than one Debenture
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 (or specified portions
thereof to the extent permitted hereby) so surrendered. Instead of any
fractional share of Common Stock which would otherwise be issuable upon
conversion of any Debenture or Debentures, the Company shall pay a cash
adjustment (calculated to the nearest cent) in respect of such fractional
interest in an amount equal to the Closing Price of such fractional interest on
the trading day immediately preceding the date upon which such Debenture or
Debentures are surrendered for conversion. The Closing Price of the Common Stock
on any trading day shall be computed on the basis of the last sale price of the
Common Stock as shown on the Composite Tape of the New York Stock Exchange on
such trading day, or, if there be no such sale price on such day, the average of
the closing bid and asked prices per share of the Common Stock on such Exchange
on such trading day. If the Common Stock is not at the time listed or admitted
to trading on such Exchange, such Closing Price shall be the average of the
closing bid and asked prices on such trading day on the principal national
securities exchange on which the Common Stock is listed or admitted to trading,
or, if the Common Stock is not listed or admitted to trading on any national
securities exchange, the average of the closing bid and asked prices on such
trading day as furnished by any New York Stock Exchange member firm selected
from time to time by the Board of Directors of the Company for such purpose
(other than the Company or a subsidiary thereof).
SECTION 4.04. Adjustment of Conversion Rate and Conversion
Price. The conversion rate shall be adjusted from time to time as follows:
(a) In case the Company shall, at any time or from time to
time while any Debentures are outstanding, (i) issue shares of its
Common Stock as a dividend or distribution on the Common Stock, (ii)
subdivide its outstanding shares of Common Stock, or (iii) combine its
outstanding shares of Common Stock into a smaller number of shares, the
conversion price and the conversion rate in effect immediately prior to
such action shall be adjusted so that the holder of any Debentures
thereafter surrendered for conversion shall be entitled to receive the
number of shares of capital stock of the Company which such holder
would have owned or have been entitled to receive immediately following
such action had such Debentures been converted immediately prior
thereto. An adjustment made pursuant to this Section 4.04(a) shall
become effective retroactively to immediately after the opening of
business on the day following the record date in the case of an
issuance and shall become effective immediately after the opening of
business on the day following the effective date in the case of a
subdivision
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or combination. If, as a result of an adjustment made pursuant to
this Section 4.04(a), the holder of any Debentures thereafter
surrendered for conversionshall become entitled to receive shares of
two or more classes of capital stock of the Company, the Board of
Directors (whose determination shall be conclusive) shall determine
the allocation of the adjusted Conversion Price and/or
Conversion Rate between or among shares of such classes of capital
stock.
(b) In case the Company shall, at any time or from time to
time while any of the Debentures are outstanding, issue rights or
options or warrants to all holders of shares of its Common Stock
entitling them to subscribe for or acquire shares of Common Stock (or
securities convertible into or exchangeable for Common Stock) at a
price per share less than the current market price per share of Common
Stock (as defined in Section 4.04(d), at such record date, the
Conversion Rate shall be adjusted so that it shall equal the rate
determined by multiplying the Conversion Rate in effect immediately
prior to the date of issuance of such rights or warrants by a fraction,
the numerator of which shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights, options, or
warrants plus the number of additional shares of Common Stock offered
for subscription or purchase, and the denominator of which shall be the
number of shares of Common Stock outstanding on the date of issuance of
such rights or warrants plus the number of shares which the aggregate
offering price of the total number of shares so offered would purchase
at such current Market Price. For the purposes of this Section 4.04(b),
the issuance of rights, options or warrants to subscribe for or
purchase securities convertible into Common Stock shall be deemed to be
the issuance of rights or warrants to purchase the share of Common
Stock into which such securities are convertible at an aggregate
offering price equal to the aggregate offering price of such securities
plus the minimum aggregate amount (if any) payable upon conversion of
such securities into shares of Common Stock; provided, however, that if
all of the shares of Common Stock subject to such rights, options or
warrants have not been issued when such rights, options or warrants
expire, then the Conversion Price shall promptly be readjusted to the
Conversion Price which would then be in effect had the adjustment upon
the issuance of such rights, options or warrants been made on the basis
of the actual number of shares of Common Stock issued upon the exercise
of such rights, options or warrants. An adjustment made pursuant to
this Section 4.04(b) shall become effective retroactively immediately
after the record date for the determination of stockholders entitled to
receive such rights, options or warrants.
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(c) In case the Company shall, at any time or from time to
time while any of the Debentures are outstanding, distribute to all
holders of shares of its Common Stock evidences of its indebtedness or
securities or assets (excluding cash dividends payable out of
consolidated earnings or retained earnings or dividends payable in
shares of Common Stock) or rights, options or warrants to subscribe for
securities of the Company or any of its subsidiaries (excluding those
referred to in Section 4.04(b)), then in each such case the Conversion
Rate shall be adjusted so that it shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to the date
of such distribution by a fraction, the numerator of which shall be the
current Market Price per share (determined as provided in Section
4.04(d)) of the Common Stock on the record date referred to below, and
the denominator of which shall be such current Market Price per share
of the Common Stock less the then fair market value (as determined by
the Board of Directors of the Company, whose determination shall be
conclusive) of the portion of the assets or evidences of indebtedness
or securities or assets so distributed or of such subscription rights
or warrants applicable to one share of Common Stock. Such adjustment
shall become effective retroactively immediately after the record date
for the determination of stockholders entitled to receive such
distribution.
(d) For the purpose of any computation under Section 4.04(b),
and 4.04(c), the current Market Price of a share of Common Stock on any
date shall be the average of the daily Closing Prices for 10
consecutive Trading Days ending on the last Trading Day before the day
in question.
(e) The Company shall be entitled to make such additional
adjustments in the Conversion Price, in addition to those required by
subsections 4.04(a), 4.04(b), and 4.04(c), as shall be necessary in
order that any dividend or distribution in shares of stock, subdivision
or combination of shares of Common Stock, issuance of rights, options
or warrants, evidences of indebtedness or assets (other than cash
dividends payable out of consolidated earnings or retained earnings)
referred to above, shall not be taxable to the stockholders.
(f) In any case in which this Section 4.04 shall require that
an adjustment be made retroactively immediately following a record
date, the Company may elect to defer (but only for five (5) Business
Days following the filing of the statement referred to in Section
4.04(h)) issuing to the holder of any Debentures converted after such
record date (i) the shares of Common Stock and other capital stock of
the Company issuable upon such conversion over and above (ii) the
shares of Common
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Stock and other capital stock of the Company issuable upon such
conversion on the basis of the conversion rate prior to adjustment.
(g) Notwithstanding any other provisions of this Section 4.04,
the Company shall not be required to make any adjustment of the
Conversion Rate unless such adjustment would require an increase or
decrease of at least 1% in such Conversion Rate. Any lesser adjustment
shall be carried forward and shall be made at the time of and together
with the next subsequent adjustment which, together with any adjustment
or adjustments so carried forward, shall amount to an increase or
decrease of at least 1% in such rate.
(h) Whenever an adjustment in the Conversion Rate is required,
the Company shall forthwith place on file with the Trustee a statement
signed by its Chief Executive Officer, Chief Financial Officer, Chief
Operating Officer or a Senior Vice President and by its Secretary,
Assistant Secretary or Treasurer, stating the adjusted Conversion Rate
determined as provided herein. Such statements shall set forth in
reasonable detail such facts as shall be necessary to show the reason
and the manner of computing such adjustment. Promptly after the
adjustment of the Conversion Rate, the Company or Trustee shall mail a
notice thereof to each holder of Debentures.
(i) The term "Common Stock" as used in this Indenture means
the Company's Common Stock, $.10 par value, as the same exists at the
date of original issuance of the Debentures or any other class of stock
resulting from successive changes or reclassifications of such Common
Stock consisting solely of changes in par value, or from par value to
no par value, or from no par value to par value. In the event that at
any time as a result of an adjustment made pursuant to Section 4.04(a),
the holder of any Debenture thereafter surrendered for conversion shall
become entitled to receive any shares of the Company other than shares
of its Common Stock, the Conversion Rate of such other shares so
receivable upon conversion shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to
the provisions with respect to Common Stock contained in subparagraphs
(a) through (g) of this Section 4.04, and the provisions of Section
4.01 through 4.03 and 4.05 through 4.11 with respect to the Common
Stock shall apply on like or similar terms to any such other shares.
(j) The Conversion Price shall be adjusted on March 30, 1998
and on September 30, 1999 (each a "Reset Date") to the average Closing
Price of the Common Stock for the ten (10) trading days preceding a
Reset Date plus 12% thereof if lower than the initial Conversion Price;
provided, however, in
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no event shall the Conversion Price be reset at a price lower than 15%
below the initial Conversion Price as determined on the date of
issuance or be reset on September 30, 1999 at a price higher than
the Conversion Price set on March 30, 1998.
SECTION 4.05. Effect of Reclassifications, Consolidations,
Mergers or Sales on Conversion Privilege. In case of (a) any reclassification or
change of outstanding shares of Common Stock issuable upon conversion of shares
of the Debentures (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), or (b) any consolidation or merger of the Company with one or more
other corporations or entities (other than a consolidation or merger in which
the Company is the continuing company and which does not result in any
reclassification or change of outstanding shares of Common Stock issuable upon
conversion of the Debentures), or (c) any sale or conveyance to another company
or other entity of all or substantially all of the property of the Company,
then, subject to the applicable rights of the holders upon a Change in Control
(as hereinbefore defined), the Company, or such successor company or other
entity, as the case may be, shall make appropriate provision so that the holder
of each Debenture then outstanding shall have the right to convert such
Debenture into the kind and amount of shares of stock or other securities and
property receivable upon such consolidation, merger, sale, reclassification,
change or conveyance 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, sale, reclassification, change or conveyance, subject to
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 4.05. If in connection with any such
reclassification, consolidation, merger, sale, transfer, or share exchange each
holder of shares of Common Stock is entitled to elect to receive either
securities, cash or other assets upon completion of such transaction, the
Company will provide or cause to be provided to each holder of the Debentures
the right to elect to receive the securities, cash or other assets into which
the Debentures held by such holder will be convertible after completion of any
such transaction on the same terms and subject to the same conditions applicable
to holders of the Common Stock (including, without limitation, notice of the
right to elect, limitations on the period in which such election will be made
and the effect of failing to exercise the election). The provisions of this
Section 4.05 shall apply similarly to successive consolidations, mergers, sales
reclassifications, transfers, exchanges or conveyances.
SECTION 4.06. Cancellation of Converted Debentures. All
Debentures or portions thereof surrendered for conversion shall ipso facto on
the conversion thereof be extinguished and shall be canceled and disposed of as
provided in Section 2.08, and no Debentures shall be issued under the Indenture
in lieu thereof.
SECTION 4.07. Taxes on Conversion. The issue of stock
certificates on conversions of Debentures shall be made without charge to the
converting
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Debentureholder for any issue tax in respect of such issue. 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 stock in a name other than that
of the holder of the Debenture converted, and the Company shall not be required
to issue or deliver any such stock certificate unless and until the person or
persons requesting the issuance thereof shall have paid to the Company the
amount of any such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
SECTION 4.08. Company to Reserve Stock. The Company shall at all
times reserve and keep available, free from pre-emptive rights out of its
authorized but unissued stock, for the purpose of effecting the conversion of
the Debentures, such number of its duly authorized shares of Common Stock, as
shall from time to time be sufficient to effect the conversion of all
outstanding Debentures.
SECTION 4.09. Covenant as to Common Stock. As a condition
precedent to the taking of any action which would cause an adjustment reducing
the then prevailing Conversion Price below the then par value, if any, per share
of Common Stock, the Company will take such corporate action as may, in the
opinion of its counsel, be necessary in order that the Company may validly and
legally issue its Common Stock as fully paid and nonassessable stock at the
adjusted conversion price upon conversion of Debentures in accordance with the
provisions of this Article Four.
If registration with or approval of any governmental authority
under any federal or state law is required before any Common Stock may be
validly issued upon conversion, the Company covenants that it will take such
action as may be necessary to secure such registration or approval, as the case
may be.
SECTION 4.10. Notice of Certain Corporate Action. In case:
(a) the Company shall declare a dividend or any other
distribution on shares of its Common Stock payable otherwise than in cash out
of its consolidated earnings or retained earnings or in Common Stock; or
(b) the Company shall authorize the granting to all of
the holders of shares of its Common Stock of rights, options or warrants to
subscribe for or purchase any shares of capital stock of any class (or
securities convertible into or exchangeable for shares of capital stock of any
class) or of any other rights or warrants; or
(c) of any reclassification or change of shares of
Common Stock of the Company, or of any consolidation or merger of the Company
with one or more other corporations, or of the sale or conveyance of all or
substantially all of the property of the Company;
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(d) of the voluntary or involuntary dissolution,
liquidation or winding-up of the Company; or
(e) the Company or any subsidiary shall commence a tender
offer for all or a portion of any class of the Company's outstanding shares of
Common Stock that would require an adjustment of the Conversion Price pursuant
to Section 4.04;
then the Company shall cause notice thereof to be mailed to the Trustee, to the
office or agency maintained by the Company for the purpose of conversion of
Debentures and to each holder of Debentures, at his address appearing on the
registry books of the Company, at least 20 days (or l0 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 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, sale, conveyance, dissolution, liquidation winding-up or
tender offer is expected to become effective, and the date as of which it is
expected that the holders of Common Stock of record to be entitled to exchange
their shares of Common Stock for securities or other property deliverable upon
such reclassification, consolidation, merger, sale, conveyance, dissolution,
liquidation, winding-up or tender offer shall be determined. Failure to give any
such notice, or any defect therein, shall not affect the legality or validity of
any such action set forth in clause (a), (b), (c), (d) or (e) above.
SECTION 4.11. Disclaimer of Responsibility of Trustee, etc.
Neither the Trustee, subject to the provisions of Section 8.0l, nor any
conversion agent shall at any time be under any duty or responsibility to any
holder of Debentures to determine whether any facts exist which may require any
adjustment of the Conversion Rate, or with respect to the nature or extent of
any such adjustment when made, or with respect to the method employed, or herein
or in any supplemental indenture provided to be employed, in making the same.
Neither the Trustee nor any conversion agent shall be accountable with respect
to the validity or value (or the kind or amount) of any shares of Common Stock,
or of any securities or property (including cash), which may at any time be
issued or delivered upon the conversion of any Debenture; and neither the
Trustee nor any conversion agent makes any representation with respect thereto.
Neither the Trustee nor any paying 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 (including
cash) upon the surrender of any Debenture for the purpose of conversion or,
subject to Section 4.0l, to comply with any of the covenants of the Company
contained in this Article Four.
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ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants and agrees as follows:
SECTION 5.01. Payment of Principal of and Interest on
Debentures. The Company will duly and punctually pay or cause to be paid the
principal of and interest on each of the Debentures at the time and place and in
the manner provided in the Debenture. The Company shall pay interest on overdue
principal and interest at the rate borne by the Debentures to the extent lawful.
An installment of principal or interest shall be considered paid on the date it
is due if the payment agent holds on or prior to that date money deposited by
the Company in immediately available funds and designated for and sufficient to
pay such amount due and the payment agent is not prohibited from paying such
money to the Debentureholders on that date pursuant to the terms of the
Indenture.
SECTION 5.02. Maintenance of Offices or Agencies. As long as any
of the Debentures remain outstanding, the Company will maintain an office or
agency or offices or agencies in the Borough of Manhattan, City and State of New
York, where the Debentures may be presented for registration, transfer and
exchange as in this Indenture provided, and where the Debentures may be
surrendered for conversion as in this Indenture provided, and where notices and
demands to or upon the Company in respect of the Debentures or of this Indenture
may be served, and where the Debentures may be presented for payment. Until
otherwise designated by the Company in a notice to the Trustee, such office or
agency for all of the above purposes shall be the Corporate Trust Office of the
Trustee. The Company will give to the Trustee notice of any change of location
of any of such offices or agencies. In case the Company shall fail to maintain
such an office or agency or offices or agencies for all such purposes or shall
fail to give such notice of any change in the location thereof, presentations
and demands may be made and notices may be served at the Corporate Trust Office
of the Trustee.
The Company may at any time and from time to time vary or
terminate the appointment of any such agent or appoint any additional agents for
any or all of such purposes; provided, however, that until all of the Debentures
have been delivered to the Trustee for cancellation, or moneys sufficient to pay
the principal of and interest on the Debentures have been made available for
payment and either paid or returned to the Company pursuant to provisions of
Section 5.04, the Company will maintain in the Borough of Manhattan, the City of
New York, an office or agency where Debentures may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Debentures and this Indenture may be served.
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SECTION 5.03. Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 8.11, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 5.04. Appointment of Paying Agent Other Than Trustee.
(a) The Company initially appoints the Trustee as Registrar and Paying Agent in
connection with the Debentures. If the Company shall appoint a paying agent
other than the Trustee, it will cause such paying agent to execute and deliver
to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section,
(1) that it will hold all sums held by it as such
agent for the payment of the principal of or interest on the Debentures
(whether such sums have been paid to it by the Company or by any other obligor
on the Debentures) in trust for the benefit of the holders of the Debentures,
or of the Trustee, as the case may be, and
(2) that it will give the Trustee notice of any failure
by the Company (or by any other obligor on the Debentures) to make any
payment of the principal of or interest on the Debentures when the same
shall be due and payable.
(b) If the Company shall act as its own paying agent, it will,
on or before each due date of the principal of (and premium, if any) or interest
on the Debentures, set aside, segregate and hold in trust for the benefit of the
holders of the Debentures, a sum sufficient to pay such principal or interest so
becoming due and will notify the Trustee of any failure (by it or any other
obligor on the Debentures) to take such action.
(c) Anything in this Section to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section is subject to
the provisions of Section 14.04 hereof.
SECTION 5.05. Annual Report to Trustee. The Company will, within
120 days after the end of each fiscal year (which, at the date hereof,
terminates on September 30), file with the Trustee an Officers' Certificate
stating that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year (or, in the case of the first Officers'
Certificate filed during the period from the date of execution hereof to
September 30 of such year) has been made under the supervision of the signers of
such certificate with a view to determining whether the Company has kept,
observed, performed and fulfilled all the covenants, agreements and obligations
on its part in this Indenture contained and that to the best of their knowledge
the Company is not in default in the performance, observance or fulfillment of
any of the terms, provisions and conditions hereof, and that no default exists
or, if the Company shall be so in default or if any default exists, specifying
all such defaults, and the nature and status thereof, of which they may have
knowledge.
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SECTION 5.06. Covenant Regarding Authorization. The Company
represents and warrants that it is duly authorized under the laws of the State
of Delaware and under all other provisions of law applicable thereto to create
and issue the Debentures and to execute this Indenture, and all corporate action
on its part for the creation and issue of such Debentures and the execution and
delivery of this Indenture has been duly and effectively taken and that the
Debentures, when issued, will be valid and binding obligations of the Company
and entitled to the benefits of this Indenture.
SECTION 5.07. Delivery of Certain Information. At any time
when the Company is not subject to Section 13 or 15(d) of the Exchange Act or
exempt from such requirements pursuant to Rule 12g3-2(b) under the Exchange Act,
upon the request of a holder of Debentures or the holder of Common Stock issued
upon conversion thereof, the Company will promptly furnish or cause to be
furnished Rule 144A Information (as defined below) to such holder of Debentures
or such holder of Common Stock issued upon conversion of Debentures, or to a
prospective purchaser of any such security designated by any such holder, to the
extent required to permit compliance by such holder with Rule 144A under the
Securities Act, as amended (or any successor provision thereto) in connection
with the resale of any such security; provided, however, that the Company shall
not be required to furnish such information in connection with any request made
on or after the date which is three years from the later of (i) the date such a
security or any such predecessor security) was last acquired from the Company or
(ii) the date such a security (or any such predecessor security) was last
acquired from an "affiliate" of the Company within the meaning of Rule 144 under
the Securities Act (or any successor provision thereto). "Rule 144A Information"
shall be such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act (or any successor provision thereto).
SECTION 5.08. Payment of Taxes and Other Claims. The Company
will pay or discharge, or cause to be paid or discharged, before the same may
become delinquent, all stamps and other duties, if any, which may be imposed by
the United States or any political subdivision thereof or therein in connection
with the issuance or conversion of any Debentures; provided, however, that, (A)
the Company shall not be required to pay or discharge or cause to be paid or
discharged any tax or duty whose amount, applicability or validity is being
contested in good faith by appropriate proceedings, and (B) except as otherwise
provided herein the Company shall not be required to pay or discharge or cause
to be paid or discharged any tax, assessment or other governmental charge
imposed by any government or any political subdivision thereof or taxing
authority thereof or therein.
Section 5.09. Covenant as to Indebtedness. The Company will not
incur any indebtedness which is subordinate or junior in ranking in any respect
to any Senior Indebtedness unless such indebtedness will rank pari passu in
right of payment with the Debentures and any other Senior Subordinated
Indebtedness of the Company or is expressly subordinated in right of payment to
the Debentures and any other Senior Subordinated Indebtedness of the Company and
except the Company may issue the 9%
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Debentures, which are by their terms subordinate to the Debentures, pursuant
to and in accordance with the Indenture dated as of May 1, 1997, as amended,
and supplemented by the First Supplemental Indenture, dated on even date
herewith.
ARTICLE SIX
DEBENTUREHOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
SECTION 6.01. Covenant to Furnish Information. The Company
covenants and agrees that it will furnish or cause to be furnished to the
Trustee semi-annually, not more than 15 days after each record date for payment
of interest, and at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a list in such
form as the Trustee may reasonably require containing all information in the
possession or control of the Company or any of its paying agents, as to the
names and addresses of the holders of the Debentures obtained since the date as
of which the next previous list, if any, was furnished; provided, however, that
as long as the Trustee shall be the Debenture Registrar such list need not be
furnished. Any such list may be dated as of a date not more than 15 days prior
to the time such information is furnished or caused to be furnished, and need
not include information received after such date.
SECTION 6.02. Preservation of Information; Communications to
Debentureholders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of Debentures (1) contained in the most recent list furnished to it as
provided in Section 6.01, (2) received by it in the capacity of paying agent (if
so acting) hereunder, (3) received by it in the capacity of Debenture Registrar,
and (4) filed with it within two preceding years pursuant to the provisions of
paragraph (2) of subsection (c) of Section 6.04.
The Trustee may (1) destroy any list furnished to it as provided
in Section 6.01 upon receipt of a new list so furnished, (2) destroy any
information received by it as paying agent (if so acting) hereunder upon
delivering to itself as Trustee, not earlier than 45 days after an interest
payment date of the Debentures, 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, (3) 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 (4) destroy
any information filed with it by holders of Debentures for the purpose of
receiving reports
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pursuant to the provisions of paragraph (2) of subsection (c) of Section 6.04,
but not until two years after such information has been filed with it.
(b) In case three or more holders of Debentures (hereinafter
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 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 with respect to their rights under this Indenture or under the
Debentures, 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
(1) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section, or
(2) inform such applicants as to the approximate number
of holders of Debentures whose names and addresses appear in the information
preserved at the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section, and as to the approximate cost of mailing to
such Debentureholders the form of proxy or other communications, 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 Debentureholder whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section, 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 Securities and Exchange 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 interests
of the holders of Debentures or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If said 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, said 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
Debentureholders 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.
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(c) Each and every holder of the Debentures, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any paying agent 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 the provisions of subsection (b) of
this Section, 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 said subsection (b).
SECTION 6.03. Reports by Company. (a) The Company covenants and
agrees to file with the Trustee within 15 days after the Company is required to
file the same with the Securities and Exchange 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 said Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with
said 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 to file with the Trustee and said
Commission, in accordance with rules and regulations prescribed from time to
time by said 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) The Company covenants and agrees to file with the Trustee
and the Securities and Exchange Commission, in accordance with the rules and
regulations prescribed from time to time by said Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit to the holders
of Debentures within 30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in subsection (c) of Section 6.04 with respect
to reports pursuant to subsection (a) of said Section 6.04, such summaries of
any information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section as may be required by rules
and regulations prescribed from time to time by the Securities and Exchange
Commission.
SECTION 6.04. Reports by Trustee. (a) On or before the first
April 15 following execution of this Indenture, and on or before April 15 in
every year thereafter, so long as any Debentures are outstanding hereunder, the
Trustee shall transmit to the Debentureholders as hereinafter in this Section
provided a brief report dated as of the preceding February 15, with respect to:
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(1) its eligibility under Section 8.10, and its
qualifications under Section 8.08, or in lieu thereof, if to the best of
its knowledge it has continued to be eligible and qualified under such
Sections, a written statement to such effect;
(2) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Debentures, on any property
or funds held or collected by it as Trustee, if such advances so
remaining unpaid aggregate more than one-half of one per cent of the
principal amount of the Debentures outstanding on the date of such
report;
(3) the amount, interest rate and maturity date of
all other indebtedness owing by the Company (or by any other obligor on
the Debentures) to the Trustee in its individual capacity, on the date
of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in paragraphs (2),
(3), (4), or (6) of subsection (b) of Section 8.15;
(4) the property and funds, if any, physically in
the possession of the Trustee as such on the date of such report;
(5) any additional issue of Debentures which the
Trustee has not previously reported; and
(6) any action taken by the Trustee in the
performance of its duties under this Indenture which it has not
previously reported and which in its opinion materially affects the
Debentures, except action in respect of a default, notice of which has
been or is to be withheld by it in accordance with the provisions of
Section 7.09.
(b) The Trustee shall transmit to the Debentureholders,
as hereinafter provided, a brief report with respect to the character
and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee as
such since the date of the last report transmitted pursuant to the
provisions of subsection (a) of this Section (or if no such report has
yet been so transmitted, since the date of execution of this Indenture),
for the reimbursement of which it claims or may claim a lien or charge
prior to that of the Debentures on property or funds held or collected
by it as Trustee, and which it has not previously reported pursuant to
this subsection, if such advances remaining unpaid at any time aggregate
more
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than ten per cent of the principal amount of Debentures outstanding
at such time, such report to be transmitted within 90 days after such
time.
(c) Reports pursuant to this Section shall be
transmitted by mail:
(1) to all registered holders of Debentures, as
the names and addresses of such holders appear upon the registration
books of the Company;
(2) to such holders of Debentures as have, within two
years preceding such transmission, filed their names and addresses with
the Trustee for that purpose; and
(3) except in the cases of reports pursuant to
subsection (b) of this Section, to each Debentureholder whose name and
address is preserved at the time by the Trustee, as provided in
subsection (a) of Section 6.02.
(d) A copy of each such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with each
securities exchange upon which the Debentures are listed and also with
the Securities and Exchange Commission. The Company agrees to notify the
Trustee when and as the Debentures become listed on any securities
exchange.
ARTICLE SEVEN
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT.
SECTION 7.01. Events of Default Defined; Acceleration of
Maturity. In case one or more of the following Events of Default shall have
occurred and be continuing, that is to say:
(a) default in the due and punctual payment of any
installment of interest upon any of the Debentures as and when the same
shall become due and payable, whether or not such payment is prohibited
by the provisions of Article Thirteen, and continuance of such default
for a period of 30 days; or
(b) default in the due and punctual payment of the
principal of any Debenture as and when the same shall become due and
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payable, whether or not such payment is prohibited by the provisions of
Article Thirteen, or fails to redeem or purchase Debentures when
required pursuant to this Indenture or the Debentures, whether or not
prohibited by the provisions of Article Thirteen either at maturity,
upon redemption, by declaration as authorized by this Indenture, or
otherwise; or
(c) failure on the part of the Company to duly observe or
perform any of the covenants or agreements on the part of the Company in
the Debentures or in this Indenture, for a period of 60 days after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Company by the Trustee, by
registered mail, or to the Company and the Trustee by the holders of at
least twenty-five per cent in aggregate principal amount of the
Debentures at the time outstanding; or
(d) a decree or order by a court having jurisdiction in
the premises shall have been entered adjudging the Company as bankrupt
or insolvent, or approving a petition seeking reorganization of the
Company under the Bankruptcy Code or any other similar applicable
Federal or State law, and such decree or order shall have continued
undischarged or unstayed for a period of 60 days; or a decree or order
of a court having jurisdiction in the premises for the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of the Company or of all or substantially all of its
property, or for the winding up or liquidation of its affairs shall have
been entered, and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(e) the Company shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or answer or
consent seeking reorganization under the Bankruptcy Code or any other
similar applicable Federal or State law, or shall consent to the filing
of any such petition, or shall consent to the appointment of a receiver
or liquidator or trustee or assignee in bankruptcy or insolvency of it
or of all or substantially all of its property, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due; or failure to
purchase Debentures on the Repurchase Date following a Change in
Control.
then and in each and every such case (other than an Event of Default specified
in clause (d) and (e) of this Section 7.01), so long as such Event of Default
shall not have been remedied, unless the principal of all the Debentures shall
have already become due and payable, either the Trustee or the holders of not
less than twenty-five per cent in aggregate principal amount of the Debentures
then outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by the Debentureholders), may
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declare the principal of all the Debentures then outstanding to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, anything in this Indenture or in the said
Debentures contained to the contrary notwithstanding. If an Event of Default
specified in clause (d) or (e) of this Section 7.01 occurs, the principal of and
interest on all the Debentures shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
the holders of any of the Debentures. This provision, however, is subject to the
condition that if, at any time after the principal of the Debentures shall have
been so declared due and payable, but before the Debentures shall have become
due by their terms and before any judgment or decree for the payment of the
moneys due 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 then outstanding and
the principal of any and all Debentures then outstanding which shall have become
due otherwise than by acceleration (with interest upon such principal and, to
the extent the payment of such interest is enforceable under applicable law,
upon overdue installments of interest, at the rate per annum expressed in the
Debentures to the date of such payment or deposit) and the amount payable to the
Trustee under Section 8.06. If any and all defaults under the Indenture, other
than the nonpayment of principal or interest on Debentures then outstanding
which has become due because of acceleration or a default in conversion of any
Debentures; shall have been remedied or provision shall have been made therefor
to the satisfaction of the Trustee, - then and in every such case the holders of
a majority in aggregate principal amount of the Debentures then outstanding, by
written notice to the Company and to the Trustee, may waive all defaults and
rescind and annul such declaration and its consequences; but no such waiver or
rescission and annulment shall conflict with any judgment or decree or extend to
or shall affect any subsequent default, or shall impair any right consequent
thereon.
SECTION 7.02. Rescission and Annulment. In case the Trustee
shall have proceeded to enforce any right 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 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 7.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that (1) in case default shall be
made in the payment of any installments of interest on any of the Debentures, as
and when the same shall become due and payable, and such default shall have
continued for a period of 30 days, or (2) in case default shall be made in the
payment of the principal of any of the Debentures when the same shall have
become due and payable, whether upon maturity of the Debentures or upon
redemption or repurchase or declaration as authorized by
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this Indenture or otherwise-then, upon demand by the Trustee, the Company will
pay to the Trustee, for the benefit of the holders of the Debentures then
outstanding, the whole amount that then shall have become due and payable on all
such Debentures for principal or interest, as the case may be, with interest
upon the overdue principal and (to the extent that payment of such interest is
enforceable under applicable law) upon overdue installments of interest at the
rate per annum expressed in the Debentures; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, and the amount payable to the Trustee under Section 8.06.
In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Company or other obligor
upon the Debentures and collect in the manner provided and to the extent
permitted by law out of the property of the Company or other obligor upon the
Debentures wherever situated the moneys adjudged or decreed to be payable.
SECTION 7.04. Trustee May File Proofs of Claims. The Trustee
shall be entitled and empowered, either in its own name or as trustee of an
express trust, or as attorney-in-fact for the holders of the Debentures, or in
any one or more of such capacities, to file such proof of debt, amendment of
proof of debt, claim, petition or other document as may be necessary or
advisable in order to have the claims of the Trustee and of the holders of the
Debentures allowed in any equity receivership, insolvency, bankruptcy,
liquidation, readjustment, reorganization or other judicial proceedings relative
to the Company or any other obligor on the Debentures or their creditors, or
affecting their property. The Trustee is hereby irrevocably appointed (and the
successive respective holders of the Debentures by taking and holding the same
shall be conclusively deemed to have so appointed the Trustee) the true and
lawful attorney-in-fact of the respective holders of the Debentures, with
authority to make and file in the respective names of the holders of the
Debentures or on behalf of the holders of the Debentures as a class, subject to
deduction from any such claims of the amounts of any claims filed by any of the
holders of the Debentures themselves, any proof of debt, amendment of proof of
debt, claim, petition or other document in any such proceedings and to receipt
payment of any sums becoming distributable on account thereof, and to execute
any such other papers and documents and to do and perform any and all such acts
and things for and on behalf of such holders of the Debentures as may be
necessary or advisable in the opinion of the Trustee in order to have the
respective claims of the Trustee and of the holders of the Debentures against
the Company or its property allowed in any such proceeding, and to receive
payment of or on account of such claims; provided, however, that nothing
contained in this Indenture shall be deemed to give to the Trustee any right to
accept or consent to any plan of reorganization or otherwise by action of any
character in any such proceeding to waive or change in any way any right of any
Debentureholder.
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All rights of action and of asserting claims under this
Indenture or under any of the Debentures may be enforced by the Trustee without
the possession of any of the Debentures or the production thereof at any trial
or other proceeding relative thereto, and any such suit or proceeding instituted
by the Trustee shall be brought in its own name and as trustee of an express
trust, and any recovery of judgment shall, after provision for payment of
expenses and of the reasonable compensation, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the holders of
the Debentures, subject to the provisions of this Indenture.
SECTION 7.05. Application of Moneys Collected by Trustee.
Subject to the provisions of Article Thirteen hereof, any moneys collected by
the Trustee, pursuant to Section 7.03, shall be applied in the order following,
at the date or dates fixed by the Trustee, and, in case of the distribution of
such moneys on account of principal or interest, upon presentation of the
several Debentures and stamping thereon the payment, if only partially paid, and
upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of
collection, and of all amounts payable to the Trustee under Section
8.06;
SECOND: In case the principal of the outstanding
Debentures shall not have become due and be unpaid, to the payment of
interest on the Debentures, in the order of the maturity of the
installments of such interest, with interest (so far as may be lawful
and if such interest has been collected by the Trustee) upon the overdue
installments of interest at the rate per annum expressed in the
Debentures, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;
THIRD: In case the principal of the outstanding
Debentures shall have become due, by declaration as authorized by this
Indenture or otherwise, to the payment of the whole amount then owing
and unpaid upon the Debentures for principal and interest, with interest
on the overdue principal and (so far as may be lawful and if such
interest has been collected by the Trustee) upon overdue installments of
interest at the rate per annum expressed in the Debentures; and in case
such moneys shall be insufficient to pay in full the whole amount so due
and unpaid upon the Debentures, then to the payment of such principal
and interest, without preference or priority of principal over interest
or of interest over principal or of any installment of interest over any
other installment of interest, or of any Debenture over any other
Debenture, ratably to the aggregate of such principal and accrued and
unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the
Company, its successors or assigns, or to whomsoever may be lawfully
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entitled to receive the same, or as a court of competent jurisdiction
may direct.
SECTION 7.06. Limitation on Suits by Holders of Debentures.
Except as otherwise expressly provided in this Article, no holder of any
Debenture shall have any right by virtue or by availing itself of any provision
in this Indenture or otherwise to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture, for the
appointment of a receiver or trustee, for the execution of any trust or power
hereof, or for any other remedy hereunder, unless:
(1) such holder previously shall have given to the
Trustee written notice of default and of the continuance thereof, as
hereinbefore provided;
(2) the holders of not less than 25% in aggregate
principal amount of the Debentures then outstanding, shall have made written
request upon the Trustee either to proceed to exercise the powers hereinbefore
granted or to institute such action, suit, or proceeding in its own name as
Trustee hereunder, and such holders shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby;
(3) the Trustee within a reasonable time (which in no
event shall be less than 60 days) after its receipt of such notice, request
and offer of indemnity, shall have failed to proceed to exercise such powers
or to institute any such action, suit or proceeding;
(4) no direction inconsistent with such written request
have been given to the Trustee during such 60-day period by the holder of a
majority in principal amount of the Debentures then outstanding, it being
understood and intended, and being expressly covenanted by the taker and holder
of every Debenture with every other taker and holder and the Trustee, that no
one or more holders of Debentures shall have any right in any manner whatever by
virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Debentures, or to
obtain or seek to obtain priority over or preference to any other such holder,
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all holders of
Debentures. For the protection and enforcement of the provisions of this
Section, each and every Debentureholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
Nothing herein contained shall, however, affect or impair the
right, which is absolute and unconditional, of any Debentureholder to receive
and to institute suit to enforce, the payment of the principal of and interest
or premium, if any, on his Debentures at and after the respective due dates
(including maturity, by call for redemption or by declaration pursuant to this
Indenture which has not been rescinded pursuant to the provisions of Section
7.01, or otherwise) of such principal or interest,
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or premium, if any, or the obligation of the Company, which is also absolute
and unconditional, to pay the principal of and interest or premium, if any,
on each of the Debentures to the respective holders thereof at the times and
places in the Debentures expressed.
SECTION 7.07. Delay or Omission in Exercise of Rights Not Waiver
of Default. No delay or omission of the Trustee or of any holder of any of the
Debentures to exercise any right or power accruing upon any Event of Default
shall impair any such right or power or shall be construed to be a waiver of any
such default or an acquiescence therein; and, subject to the provisions of
Section 7.04, every power and remedy given by this Article Seven or by law to
the Trustee or to the Debentureholders may be exercised from time to time, and
as often as shall be deemed expedient, by the Trustee or by the
Debentureholders.
SECTION 7.08. Right of Holders of Majority in Principal Amount
of Debentures to Direct Trustee and Waive Defaults. Subject to the provisions of
Sections 8.0l and 8.02, the holders of a majority in aggregate principal amount
of the Debentures at the time outstanding, determined in accordance with Section
9.04, 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, provided, however, that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture, and the Trustee shall have the right, subject to the provisions of
Section 8.01, to decline to follow any such direction if the Trustee shall,
being advised by counsel, determine that the action so directed may not be
lawfully taken, or if the Trustee in good faith shall, by a Responsible Officer
or officers of the Trustee, determine that the proceeding so directed would be
illegal or involve it in personal liability or that the action so directed would
be unduly prejudicial to the holders of Debentures not taking part in such
direction; and provided, further, that nothing in this Indenture shall impair
the right of the Trustee to take any action deemed proper by the Trustee and
which is not inconsistent with such direction by the Debentureholders. Prior to
the declaration of the maturity of the Debentures as provided in Section 7.01,
the holders of a majority in aggregate principal amount of the Debentures at the
time outstanding, determined in accordance with Section 9.04, may on behalf of
the holders of all of the Debentures waive any past default hereunder and its
consequences, except a default in the payment of the principal of or interest on
any of the Debentures or in the conversion of Debentures. In the case of any
such waiver, the Company, the Trustee and the holders of the Debentures shall be
restored to their 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 7.09. Trustee to Give Notice of Defaults Known to It,
but May Withhold in Certain Circumstances. The Trustee shall, within ninety days
after the occurrence of a default, give to the Debentureholders, in the manner
and to the extent provided in subsection (c) of Section 6.04 with respect to
reports pursuant to subsection (a) of said Section 6.04, notice of all defaults
known to the Trustee, unless
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such defaults shall have been cured before the giving of such notice (the term
"defaults" for the purposes of this Section being hereby defined to be the
events specified in clauses (a), (b), (c), (d) and (e), of Section 7.0l, not
including (i) any periods of grace provided for therein and (ii) the written
notice specified in clause (c) of Section 7.0l); provided, that, except in the
case of default in the payment of the principal of or interest on any of the
Debentures, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee, or a trust committee of
directors and/or Responsible Officers, of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Debentureholders.
SECTION 7.10. Requirement of Undertaking to Pay Costs in Certain
Suits Under Indenture or Against Trustee. All parties to this Indenture agree,
and each holder of any Debenture by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, 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 attorney's fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; provided, that the provisions of this Section shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Debentureholder, or group of Debentureholders, holding in the aggregate more
than 10% in principal amount of the Debentures outstanding, or to any suit
instituted by any Debentureholder for the enforcement of the payment of the
principal of or interest on any Debenture, on or after the due date expressed in
such Debenture.
SECTION 7.11. Unconditional Right of Holders to Receive
Principal and Interest and to Convert. Notwithstanding any other provision in
this Indenture, the holder of any Debentures shall have the right, which is
absolute and unconditional, to receive payment of the principal of and interest
on such Debentures on the stated maturities expressed in such Debentures (or, in
the case of redemption or repurchase, on the Redemption Date or Repurchase Date,
as the case may be), and to convert such Debentures in accordance with Article
Four, and to institute suit for the enforcement of any such payment and right to
convert, and such rights shall not be impaired without the consent of such
holder.
SECTION 7.12. Restoration of Rights and Remedies. If the Trustee
or any holder of a Debenture 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 shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and such holders shall
continue as though no such proceeding had been instituted.
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SECTION 7.13. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debentures in the last paragraph of Section 2.07, no
right or remedy herein conferred upon or reserved to the Trustee or to the
holders of Debentures is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 7.14. Waiver of Usury, Stay or Extension Laws. The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution or 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 EIGHT
CONCERNING THE TRUSTEE
SECTION 8.01. Duty of Trustee Prior to and After Event of
Default. The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default has occurred (which has not
been cured or waived) the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
The Trustee upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee pursuant to any provision of this Indenture, shall examine them
to determine whether they conform to the requirements of this Indenture.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
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(a) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default which may have
occurred:
(1) the duties and obligations of the Trustee 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 obligations shall be read into this
Indenture against the Trustee; and
(2) 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 certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture;
(b) the Trustee shall not be personally liable for any
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proven that the
Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of the holders of not less
than a majority in principal amount of the Debentures at the time
outstanding (determined as provided in Section 9.04) 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.
SECTION 8.02. Certain Rights of Trustee:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, Officers' Certificate,
certificate of a firm of independent public accountants, or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond, debenture or other paper or document believed
by it to be genuine and to have been signed or presented by the proper party
or parties;
(b) any request, direction, order or demand by the
Company mentioned herein shall be sufficiently evidenced by an instrument
signed in the name of the Company by the Chairman of the Board, the President
or a Vice President and the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer (unless other evidence in respect thereof
be herein specifically prescribed); and any resolution
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of the Board of Directors may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and 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 accordance with such Opinion of Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this Indenture at the
request, order or direction of any of the Debentureholders, pursuant to the
provisions of this Indenture, unless such Debentureholders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing herein contained
shall, however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default (which has not been cured or waived) to exercise such of the
rights and powers vested in it by this Indenture, and to 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;
(e) the Trustee shall not be personally liable for
any action taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
(f) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of Default, 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, consent, order, approval, bond, debenture, or other paper or document
unless requested in writing so to do by the holders of not less than a majority
in principal amount of the Debentures then outstanding; provided, however, that
if the payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expense or liability as a condition to so
proceeding. The reasonable expense of every such examination shall be paid by
the Company or, if paid by the Trustee, shall be repaid by the Company upon
demand;
(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
(h) none of the provisions of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
personal 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
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such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 8.03. Trustee Not Liable for Recitals or Issuance of
Debentures. The recitals contained herein and in the Debentures (other than the
certificate of authentication on the Debentures) shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Debentures. The Trustee shall not be
accountable for the use or application by the Company of any of the Debentures
or of the proceeds of such Debentures, or for the use or application of any
moneys paid over by the Trustee in accordance with any provision of this
Indenture, or for the use or application of any moneys received by any paying
agent.
SECTION 8.04. Trustee or Others May Hold Debentures. The Trustee
or any paying agent or any Debenture Registrar, in its individual or any other
capacity, may become the owner or pledgee of Debentures with the same rights it
would have if it were not Trustee or any paying agent or Debenture Registrar.
The Trustee may become and act as Trustee under other indentures
under which other securities, or certificates of interest or participation in
other securities, of the Company are outstanding in the same manner as if it
were not Trustee or any paying agent or Debenture Registrar.
SECTION 8.05. Moneys Held in Trust. All moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but 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 moneys received by it hereunder. So long as no
Event of Default shall have occurred and be continuing, all interest allowed on
any such moneys shall be paid from time to time upon the written order of the
Company, signed by its Chairman of the Board, President or a Vice President or
its Treasurer or an Assistant Treasurer.
SECTION 8.06. Compensation, Reimbursement and Indemnity.
The Company covenants and agrees
(1) to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by it in the execution of the trusts hereby created
and in the exercise and performance of any of the powers and duties hereunder of
the Trustee;
(2) the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable
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compensation and the expenses and disbursements of its counsel and of all
persons not regularly in its employ) except any such expense, disbursement or
advance as may arise from its negligence or bad faith;
(3) the Company will indemnify the Trustee for, and hold it
harmless against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the costs and expenses
of defending itself against any claim of liability in the premises.
The obligations of the Company under this Section to compensate
the Trustee and to pay or reimburse the Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder. Such additional
indebtedness shall be secured by a lien prior to that of the Debentures upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the holders of particular Debentures.
The provisions of this Section shall survive the termination of
this Indenture or the earlier resignation or removal of the Trustee.
SECTION 8.07. Right of Trustee to Rely on Officers'
Certificates. Except as otherwise provided in Section 8.01, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by an Officers' Certificate, and such
certificate shall be full warrant to the Trustee for any action taken, suffered
or omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 8.08. Conflicting Interests. When this Indenture is
governed by the Trust Indenture Act, if the Trustee has or shall acquire a
conflicting interest within the meaning of Section 310(b) 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. In determining whether the Trustee has
conflicting interests as defined in Section 310(b)(1) of the Trust Indenture
Act, the provisions contained in the proviso to said Section 310(b)(1) shall be
deemed incorporated herein.
SECTION 8.09. Notice of Default. Within 90 days after the
occurrence of any default hereunder as to which the Trustee has received written
notice, the Trustee shall give to all holders of Debentures, in the manner
provided in Section 6.04(c), notice of such default, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of, or interest on any Debentures, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust
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committee of directors or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of the holders.
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. The
proviso to the first sentence of this Section 8.09 shall be in lieu of the
proviso to Section 315(b) of the Trust Indenture Act, which latter proviso is
hereby expressly excluded from this Indenture.
SECTION 8.10. Requirements for Eligibility of Trustee. The
Trustee hereunder shall at all times be a corporation organized and doing
business under the laws of the United States or any State or Territory or of the
District of Columbia authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $1,000,000, subject to
supervision or examination by Federal, State, Territorial, or District of
Columbia authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 8.11.
SECTION 8.11. Resignation and Removal of Trustee; Appointment of
Successor. (a) The Trustee, or any successor hereafter appointed, may at any
time resign and be discharged from the trust hereby created by mailing notice
thereof to the Company and to the Debentureholders whose names and addresses
appear in the information preserved at the time by the Trustee in accordance
with the provisions of Section 6.02(a). Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the mailing of such notice of
resignation the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Debentureholder
who has been a bona fide holder of a Debenture or Debentures for at least six
months may, subject to the provisions of Section 7.10, on behalf of himself and
all others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it may
deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions
of Section 8.08 after written request therefor by the Company or by any
Debentureholder who has been a bona fide holder of a Debenture or
Debentures for at least six months;
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(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.10 and shall fail to resign after
written request therefor by the Company or by any such Debentureholder;
or
(3) the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee
or of its property shall be appointed, or any public officer shall take
charge or control of he Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 7.10, any Debentureholder who has been a bona fide holder
of a Debenture or Debentures 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 and the appointment of a successor trustee. Such
court may thereupon after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of
the Debentures at the time outstanding may at any time remove the Trustee and
appoint a successor trustee.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the provisions of this
Section shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 8.12.
SECTION 8.12. Acceptance by Successor to Trustee. Any successor
trustee appointed as provided in Section 8.11 shall execute, acknowledge and
deliver to the Company and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with like
effect as if originally named as trustee herein. The predecessor trustee, upon
payment to it of all amounts due it under Section 8.06 shall, nevertheless, at
the written request of the successor trustee, pay over to the successor trustee
all moneys at the time held by it hereunder; and the Company and the predecessor
trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for more fully and certainly vesting and confirming
in the successor trustee all such rights, powers, duties and obligations.
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No successor trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 8.08 and eligible under the
provisions of Section 8.10.
Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall mail notice of the succession of
such trustee hereunder to all Debentureholders at their last addresses appearing
upon the registry books.
SECTION 8.13. Successor to Trustee by Merger or Consolidation or
Succession to Business. Any corporation into which the Trustee may be merged or
with which it may be consolidated, or any corporation resulting from any merger
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be qualified under the provisions of
Section 8.08 and eligible under the provisions of Section 8.10, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
SECTION 8.14. Authenticating Agents. The Trustee may, with the consent
of the Company, appoint an additional authenticating agent or agents acceptable
to the Company with respect to the Debentures which shall be authorized to act
on behalf of the Trustee to authenticate Debentures issued upon exchange or
substitution pursuant to this Indenture. (Each such agent hereinafter called
"Authenticating Agent").
Debentures authenticated by an Authenticating Agent 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, and every reference in
this Indenture to the authentication and delivery of Debentures by the Trustee
or the Trustee's certificate of authentication 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 subject to acceptance
by the Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any State thereof, or
the District of Columbia, authorized under such laws to act as Authenticating
Agent and subject to supervision or examination by government or other fiscal
authority. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 8.14, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section 8.14.
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 an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 8.14, without
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the execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the 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 8.14, the Trustee may appoint a successor
Authenticating Agent which shall be subject to acceptance by the Company. 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 8.14.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 8.14.
If an Authenticating Agent is appointed with respect to the Debentures
pursuant to this Section 8.14, the Debentures may have endorsed thereon, in
addition to or in lieu of the Trustee's certification of authentication, an
alternative certificate of authentication in the following form:
"This is one of the Debentures referred to in the within-mentioned
Indenture.
Dated: [ ]
as Trustee
By [Authenticating agent].
as Authenticating Agent
By______________________________
Authorized Signatory "
[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 8.15. Preferential Collection of Claims Against Company.
(a) Subject to the provisions of subsection (b) of this Section, if the Trustee
in its individual capacity shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company or of any other obligor on the
Debentures within three
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months prior to a default, as defined in subsection (c) of this Section, or
subsequent to such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold in a special account for the benefit
of the Trustee individually, the holders of the Debentures and the holders of
other indenture securities (as defined in subsection (c) of this Section):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such three
months' period and valid as against the Company and its other creditors,
except any such reduction resulting from the receipt or disposition of
any property described in paragraph (2) of this subsection, or from the
exercise of any right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Company
upon the date of such default; and
(2) all property received by the Trustee in respect of
any claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of any
such property, if disposed of, subject, however, to the rights, if any,
of the Company and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments
made on account of any such claim by any person (other than the
Company) who is liable thereon, and (ii) the proceeds of the
bona fide sale of any such claim by the Trustee to a third
person, and (iii) distributions made in cash, securities, or
other property in respect of claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization
pursuant to the Bankruptcy Code or applicable State law;
(B) to realize, for its own account, upon any
property held by it as security for any such claim, if such
property was so held prior to the beginning of such three
months' period;
(C) to realize, for its own account, but only to
the extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such a three months' period and
such property was received as security therefor simultaneously
with the creation thereof, and if the Trustee
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shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable
cause to believe that a default, as defined in subsection (c)
of this Section, would occur within three months; or
(D) to receive payment on any claim referred to
in paragraph (B) or (C), against the release of any property
held as security for such claim as provided in such paragraph
(B) or (C), as the case may be, to the extent of the fair value
of such property.
For the purposes of paragraphs (B), (C), and (D), property
substituted after the beginning of such a three months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the purpose of repaying or
refunding any pre-existing claim of the Trustee as such creditor, such claim
shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned between the Trustee, the Debentureholders and the holders of other
indenture securities in such manner that the Trustee, the Debentureholders and
the holders of other indenture securities realize, as a result of payments from
such special account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Bankruptcy Code or applicable State law, the same percentage of
their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the respective claims
of the Trustee, the Debentureholders and the holders of other indenture
securities dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Bankruptcy
Code or applicable State law, but after crediting thereon receipts on account of
the indebtedness represented by their respective claims from all sources other
than from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Bankruptcy Code or applicable State law, whether such distribution is made in
cash, securities, or other property, but shall not include any such distribution
with respect to the secured portion, if any, of such claim. The court in which
such bankruptcy, receivership or proceeding for reorganization is pending shall
have jurisdiction (i) to apportion between the Trustee, the Debentureholders and
the holders of other indenture securities, in accordance with the provisions of
this paragraph, the funds and property held in such special account and the
proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part, to
give to the provisions of this paragraph
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due consideration in determining the fairness of the distributions to be made to
the Trustee, the Debentureholders and the holders of other indenture securities
with respect to their respective claims, in which event it shall not be
necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning
of such a three months period shall be subject to the provisions of this
subsection (a) as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such a three
months period, it shall be subject to the provisions of this subsection (a) if
and only if the following conditions exist:
(i) the receipt of property or reduction of claim which
would have given rise to the obligation to account, if such
Trustee had continued as trustee, occurred after the beginning
of such three months period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection
(a) of this Section a creditor relationship arising from
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a
maturity of one year or more at the time of acquisition by the
Trustee;
(2) advances authorized by receivership or bankruptcy
court of competent jurisdiction, or by this Indenture, for the
purpose of preserving any property which shall at any time be
subject to the lien of this Indenture or of discharging tax
liens or other prior liens or encumbrances thereon, if notice of
such advance and of the circumstances surrounding the making
thereof is given to the Debentureholders at the time and in the
manner provided in Section 6.04 of this Indenture;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture, transfer
agent, registrar, custodian, paying agent, fiscal agent or
depositary, or other similar capacity;
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(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a
result of goods or securities sold in a cash transaction as
defined in subsection (c) of this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of
the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of
self-liquidating paper as defined in subsection (c) of this
Section.
(c) As used in this Section:
(1) The term "default" shall mean any failure to make
payment in full of the principal of or interest upon any of the
Debentures or upon the other indenture securities when and as
such principal or interest becomes due and payable.
(2) The term "other indenture securities" shall mean
securities upon which the Company is an obligor (as defined in
the Trust Indenture Act of 1939) outstanding under any other
indenture (A) under which the Trustee is also trustee, (B) which
contains provisions substantially similar to the provisions of
subsection (a) of this Section, and (C) under which a default
exists at the time of the apportionment of the funds and
property held in said special account.
(3) The term "cash transaction" shall mean any
transaction in which full payment for goods or securities sold
is made within seven days after delivery of the goods or
securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean any
draft, bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacture, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or a
lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or
merchandise previously constituting the
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security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship
with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance
or obligation.
(5) The term "Company" shall mean any obligor upon
the Debentures.
ARTICLE NINE
CONCERNING THE DEBENTUREHOLDERS
SECTION 9.01. Evidence of Action Taken by Debentureholders.
Whenever in this Indenture it is provided that the holders of a specified
percentage in aggregate principal amount of the Debentures may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the time
of taking any such action the holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by Debentureholders in person or by attorney or proxy
appointed in writing, or (b) by the record of the holders of Debentures voting
in favor thereof at any meeting of Debentureholders duly called and held in
accordance with the provisions of Article Ten, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of
Debentureholders.
SECTION 9.02. Proof of Execution of Instruments and of Holding
of Debentures. Subject to the provisions of Section 8.01, proof of the execution
of any instrument by a Debentureholder or his attorney or proxy and proof of the
holding by any person of any of the Debentures shall be sufficient for any
purpose of this Indenture if made in the following manner:
(a) The fact and date of the execution by any such
person of any instrument may be proven by the certificate of any
notary public or other officer of any jurisdiction of or within
the United States of America authorized to take acknowledgment
of deeds, that the person executing such instrument acknowledged
to him the execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or other such
officer, or by any other method deemed appropriate by the
Trustee; and
(b) The ownership of Debentures shall be proven by the
registers of such Debentures or by a certificate of any duly
appointed registrar thereof.
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The Trustee shall not be bound to recognize any person as a
Debentureholder unless and until his title to the Debentures held by him is
proved in the manner in this Article provided.
The record of any Debentureholders' meeting shall be proven in
the manner provided in Section 10.06.
The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
SECTION 9.03. Registered Holders of Debentures May be Treated as
Owners. Prior to due presentment for registration of transfer, the Company, the
Trustee, any paying agent and any Debenture Registrar may deem and treat the
person in whose name any Debenture shall be registered upon the books of the
Company as the absolute owner of such Debenture (whether or not such Debenture
shall be overdue and notwithstanding any notice of ownership or writing thereon
made by anyone), for the purpose of receiving payment of or on account of the
principal of and interest on such Debenture 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. All such payments so
made to any such registered holder, for the time being or upon his order, shall
be valid, and, to the extent of the sum or sums so paid, effectual to satisfy
and discharge the liability for moneys payable upon any such Debenture.
SECTION 9.04. Debentures Owned by Company Deemed Not
Outstanding. In determining whether the holders of the requisite aggregate
principal amount of Debentures have concurred in any direction, consent or
waiver under this Indenture, Debentures which are owned by the Company or any
other obligor on the Debentures or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any other obligor on the Debentures shall be disregarded and deemed
not to be outstanding for the purpose of any such determination, except that for
the purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver only Debentures which the Trustee knows
are so owned shall be so disregarded. Debentures so owned which have been
pledged in good faith may be regarded as outstanding for the purposes of this
Section, if the pledgee shall establish to the satisfaction of the Trustee the
pledgee's right to vote such Debentures and that the pledgee is not a person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor. In case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
SECTION 9.05. Action by Debentureholders Binds Future Holder.
Any demand, request, waiver, consent or vote of the holder of any Debenture
shall be conclusive and binding upon such holder and upon all future holders and
owners of
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such Debenture, and of any Debenture issued in exchange therefor or in place
thereof, irrespective of whether or not any notation in regard thereto is made
upon such Debenture. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Debentures specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the holders of all the Debentures.
ARTICLE TEN
DEBENTUREHOLDERS' MEETINGS
SECTION 10.01. Purposes For Which Meetings May Be Called. A
meeting of Debentureholders may be called at any time and from time to time
pursuant to the provisions of this Article for any of the following purposes:
(1) to give any notice to the Company or to the
Trustee, or to give any directions to the Trustee, or to consent
to the waiving of any default hereunder and its consequences, or
to take any other action authorized to be taken by
Debentureholders pursuant to any of the provisions of Article
Seven;
(2) to remove the Trustee and appoint a successor
trustee pursuant to the provisions of Article Eight;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Section 11.02; or
(4) to take any other action authorized to be taken by
or on behalf of the holders of any specified aggregate principal
amount of the Debentures under any other provision of this
Indenture, or authorized or permitted by law.
SECTION 10.02. Manner of Calling Meetings. The Trustee may at
any time call a meeting of Debentureholders to take any action specified in
Section 10.01, to be held at such time and at such place in the Borough of
Manhattan, City and State of New York, as the Trustee shall determine. Notice of
every meeting of the Debentureholders, 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 mailed not less than 15 days prior to the date fixed for the
meeting to the Debentureholders whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with the
provisions of Section 6.02(a).
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Any meeting of Debentureholders shall be valid without notice if
the holders of all Debentures then outstanding are present in person or by proxy
or if notice is waived before or after the meeting by the holders of all
Debentures outstanding, and if the Company and the Trustee are either present by
duly authorized representatives or have, before or after the meeting, waived
notice.
SECTION 10.03. Call of Meetings by Company or Certain Holders.
In case at any time the Company, pursuant to a resolution of its Board of
Directors, or the holders of at least 20% in aggregate principal amount of the
Debentures then outstanding, shall have requested the Trustee to call a meeting
of Debentureholders to take any action specified in Section 10.01, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting and the time and place in the Borough of Manhattan, City and State
of New York, for such meeting, the Trustee shall mail notice of such meeting as
provided in Section 10.02 within 20 days after receipt of such request if the
request is received at least 35 days before such meeting.
SECTION 10.04. Persons Entitled to Vote At a Meeting. To be
entitled to vote at any meeting of Debentureholders a person shall (a) be a
holder of one or more Debentures or (b) be a person appointed by an instrument
in writing as proxy for the holder or holders of Debentures by a holder of one
or more Debentures. The only persons who shall be entitled to be present or to
speak at any meeting of Debentureholders 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 10.05. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the outstanding Debentures 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, 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
not less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting (subject to repeated applications of this
sentence). Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 10.02, 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 of the principal amount of the outstanding Debentures
which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting
adjourned for a lack of a quorum, the Persons entitled to vote 25% in principal
amount of the outstanding Debentures at the time shall constitute a quorum for
the taking of any action set forth in the notice of the original meeting.
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Except as otherwise provided by the Trust Indenture Act, after
this Indenture is qualified thereunder, at a meeting or an adjourned meeting
duly reconvened and at which a quorum is present as aforesaid, any resolution
and all matters (except as limited by the provisos to Section 11.02) shall be
effectively passed and decided if passed or decided by the Persons entitled to
vote not less than a majority in principal amount of outstanding Debentures
represented and entitled to vote at such meeting.
Any resolution passed or decisions taken at any meeting of
holders of Debentures duly held in accordance with this Section shall be binding
on all the holders of Debentures, whether or not present or represented at the
meeting. The Trustee shall, in the name and at the expense of the Company,
notify all the holders of Debentures of any such resolutions or decisions
pursuant to Section 10.05.
SECTION 10.06. Determination of Voting Rights; Conduct and
Adjournment of Meeting. Notwithstanding any other provision of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Debentureholders, in regard to proof of the holding of Debentures
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 think fit. Except as otherwise permitted or
required by any such regulations, the holding of Debentures shall be proven in
the manner specified in Section 9.02 and the appointment of any proxy shall be
proven in the manner specified in said Section 9.02 or by having the signature
of the person executing the proxy witnessed or guaranteed by any bank, bankers,
trust company, broker or dealer deemed by the Trustee to be satisfactory.
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 Debentureholders as provided in Section 10.03, in which case
the Company or the Debentureholders 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 holders of a
majority in principal amount of the Debentures represented at the meeting and
entitled to vote.
Subject to the provisions of Section 9.04, at any meeting each
Debentureholder or proxy shall be entitled to one vote for each $1,000 principal
amount of Debentures, provided, however, that no vote shall be cast or counted
at any meeting in respect of any Debentures 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 other than by virtue of Debentures held by
him or instruments in writing as aforesaid duly designating him as the person to
vote on behalf of other Debentureholders. Any meeting of Debentureholders duly
called pursuant to the
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provisions of Section 10.02 or 10.03 may be adjourned from time to time, and the
meeting may be held as so adjourned without further notice except as provided in
Section 10.05.
SECTION 10.07. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Debentureholders shall
be by written ballots on which shall be subscribed the signatures of the holders
of Debentures or of their representatives by proxy. 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 in duplicate of the proceedings of each
meeting of Debentureholders 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 mailed as provided in Section
10.02. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
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.
SECTION 10.08. No Delay. Nothing in this Article contained shall
be deemed or construed to authorize or permit, by reason of any call of a
meeting of Debentureholders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of any right
or rights conferred upon or reserved to the Trustee or to the Debentureholders
under any of the provisions of this Indenture or of the Debentures.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 11.01. Supplemental Indentures Authorized By Directors.
The Company, when authorized by a resolution of its Board of Directors, and the
Trustee, subject to the conditions and restrictions in this Indenture contained,
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act of 1939 as then in effect) for one or more of the following
purposes:
(a) to evidence the succession of another corporation
to the Company, or successive successions, and the assumption by
the
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successor corporation of the covenants, agreements and
obligations of the Company pursuant to Article Twelve;
(b) to add to the covenants and agreements of the
Company in this Indenture contained such further covenants and
agreements thereafter to be observed, and to surrender any right
or power herein reserved to or conferred upon the Company;
(c) to cure any ambiguity or to correct or supplement
any defective or inconsistent provision contained in this
Indenture or in any supplemental indenture;
(d) to make such provisions with respect to matters or
questions arising under this Indenture as may be necessary or
desirable and not inconsistent with this Indenture; and
(e) to amend or supplement the Debentures, and related
documentation to modify the restrictions on and procedures for
resale or other transfers of the Debentures and any Common Stock
to reflect any change in applicable law or regulation (or
interpretation thereof) or in practices relating to the resale
or transfer of restricted securities generally.
The Trustee is hereby authorized to join with the Company in the
execution of any supplemental indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations
which may be therein contained, but the Trustee 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.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of
the holders of any of the Debentures at the time outstanding, notwithstanding
any of the provisions of Section 11.02.
SECTION 11.02. Supplemental Indentures with Consent of
Debentureholders. With the consent (evidenced as provided in Section 9.01) of
the holders (or persons entitled to vote, or to give consents respecting the
same) of not less than a majority in aggregate principal amount of the
Debentures at the time outstanding, the Company, when authorized by a resolution
of its Board of Directors, and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act of 1939 as then in effect) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights and obligations of the
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holders of the Debentures including any amendments hereto which may affect the
rights of Debentureholders to enforce their rights to receive payment of
principal of and interest on the Debentures or to convert such Debentures in
accordance with the terms hereof and of the Company; provided, however, that no
such supplemental indenture shall (i) extend the fixed maturity of any
Debentures, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or change the conversion or
subordination provisions in a manner adverse to the holders, without the consent
of the holder of each Debenture so affected, or (ii) reduce the requirements of
Section 10.05 for quorum or voting or reduce the aforesaid percentage of
Debentures the holders of which are required to consent to any such supplemental
indenture, without the consent of the holders of all Debentures then
outstanding; or (iii) modify the obligation of the Company to maintain an office
or agency in the Borough of Manhattan City and State of New York pursuant to
Section 5.02.
Upon the request of the Company, accompanied by a copy of a
resolution of its Board of Directors certified by the Secretary or an Assistant
Secretary of the Company authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Debentureholders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the
Debentureholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Company shall mail a notice, setting forth in general terms the substance of
such supplemental indenture, to all Debentureholders at their last addresses
appearing upon the registry books. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 11.03. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Debentures shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental indenture
shall be deemed to be part of the terms and conditions of this Indenture for any
and all purposes.
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SECTION 11.04. Notation on Debentures in Respect of Supplemental
Indentures. Debentures authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article, or after any
action taken at a Debentureholders' meeting pursuant to Article Ten, may bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture or as to any action taken at any such meeting; and, in
such case, suitable notation may be made upon outstanding Debentures after
proper presentation and demand. If the Company or the Trustee shall so
determine, new Debentures so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture, or to any action taken at any such
meeting, may be prepared by the Company, authenticated by the Trustee and
delivered in exchange for the Debentures then outstanding, upon demand by, and
without cost to, the holders thereof, upon surrender of such Debentures.
SECTION 11.05. Trustee May Receive Opinion of Counsel. The
Trustee, subject to the provisions of Section 8.01, may receive an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed pursuant
to this Article is authorized or permitted by the terms of this Indenture and
that it is not inconsistent therewith. The Trustee shall not be obliged to join
in the execution of any supplemental indenture unless it shall receive an
Officers' Certificate stating that no consent to the execution thereof is
required of any holder of Senior Indebtedness at the time outstanding or that
such consents have been obtained.
ARTICLE TWELVE
CONSOLIDATION, MERGER AND SALE
SECTION 12.01. Company May Consolidate, etc. Nothing contained
in this Indenture or in any of the Debentures shall prevent any consolidation or
merger of the Company with or into any other corporation or corporations
(whether or not affiliated with the Company), or successive consolidations or
mergers in which the Company or its successor or successors shall be a party or
parties, or shall prevent any sale or conveyance (or successive sales or
conveyances) of the property and assets of the Company (or of its successor or
successors) as an entirety or substantially as an entirety, to any other
corporation (whether or not affiliated with the Company) authorized to acquire
the same; provided, however, (a)(i) the Company is the surviving corporation
following such merger or (ii) the corporation (if other than the Company) formed
by such consolidation or into which the Company is merged or the person which
acquires by conveyance or transfer the properties and assets of the Company is
organized under the laws of the United States or any state thereof or the
District of Columbia and assumes upon any such consolidation, merger, sale or
conveyance, the due and punctual payment of the principal of and interest on all
of the Debentures, according to their tenor, and the due and punctual
performance and
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observance of all the terms, covenants and conditions of this Indenture to be
kept or performed by the Company, by indenture supplemental hereto, satisfactory
in form to the Trustee, executed and delivered to the Trustee by the corporation
formed by such consolidation, or into which the Company shall have been merged,
or by the corporation which shall have acquired such property and assets; and
(b) immediately after giving effect to such transaction, no Event of Default and
no event which, after notice or lapse of time, or both, would become an Event of
Default, shall have happened and be continuing. In the event of any such sale or
conveyance the predecessor Company may be dissolved, wound up and liquidated at
any time thereafter.
SECTION 12.02. Successor Corporation to be Substituted. In case
of any such consolidation, merger, sale or conveyance and upon the execution by
the successor corporation of an indenture supplemental hereto, as provided in
Section 12.01, such successor corporation shall succeed to and be substituted
for the Company, with the same effect as if it had been named herein as the
party of the first part. Such successor corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of the Company, with
such suitable reference, if any, to such consolidation, merger, sale or
conveyance as may be required by the Trustee, 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 written order of such successor
corporation, instead of the Company, and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Debentures which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Debentures which such successor corporation thereafter shall cause to be
signed in accordance with the provisions of this Indenture and delivered to the
Trustee for that purpose. All the Debentures so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Debentures
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Debentures had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale 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.
Nothing contained in this Indenture or in any of the Debentures
shall prevent the Company from consolidating or merging into itself or acquiring
by purchase or otherwise all or any part of the property of any other
corporation (whether or not affiliated with the Company).
SECTION 12.03. Opinion of Counsel as Evidence. The Trustee,
subject to the provisions of Section 8.01, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale or conveyance, and
any such assumption, complies with the provisions of this Article.
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ARTICLE THIRTEEN
SUBORDINATION OF DEBENTURES
SECTION 13.01. Agreement to Subordinate; Senior Subordination.
The Company covenants and agrees and the Trustee and each holder of Debentures,
by his acceptance thereof, likewise covenants and agrees, that the indebtedness
evidenced by the Debentures and all Obligations of the Company under this
Indenture and the payment of any Claims is hereby expressly subordinated, to the
extent and in the manner hereinafter set forth, in right of payment to the prior
payment in full of all Senior Indebtedness. The Debentures shall in all respects
rank pari passu with all other Senior Subordinated Indebtedness of the Company
and only indebtedness of the Company which is Senior Indebtedness shall rank
senior to the Debentures in accordance with the provisions set forth in this
Article Thirteen.
The Company hereby acknowledges that the indebtedness evidenced
by the Debentures and all Obligations of the Company under this Indenture and
the payment of any Claims with respect to each and all of the Debentures will
rank senior in right of payment to the Company's 9% Debentures which may be
issued in exchange for the Convertible Exchangeable Preferred Stock pursuant to
and in accordance with the Indenture, dated as of May 1, 1997, as amended and
supplemented by the First Supplemental Indenture, dated on even date herewith.
The term "Claim" as used herein means any claim arising for the
rescission of the purchase of the Debentures, for damages arising from the
purchase of the Debentures or for reimbursement or contribution on account of
such claim.
The term "Obligations" as used herein means, with respect to any
indebtedness, any principal, premium, interest (including interest, whether or
not allowed, after the filing of a petition initiating any proceeding referred
to in Section 7.01(d) or 7.01(e)), penalties, commissions, charges, expenses,
fees, indemnifications, reimbursements, and other liabilities or amounts payable
under or in respect of the documentation governing such indebtedness.
SECTION 13.02. Distribution on Dissolution or Reorganization.
(a) If, upon any distribution, division or application, partial or complete,
voluntary or involuntary, by operation of law or otherwise, of all or any part
of the assets of the Company upon any dissolution, winding up, liquidation,
readjustment or reorganization of the Company or its property, whether in
bankruptcy, insolvency or receivership proceedings or at execution sale or upon
an assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of the Company or otherwise, then, in any such case, the
holders of all Senior Indebtedness shall first be entitled to receive payment in
full of all Obligations due or to become due or to become due with respect
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to such Senior Indebtedness and all Claims relating thereto before the holders
of the Debentures are entitled to receive any payment or distribution on account
of any Obligations with respect to the Debentures or on account of any Claim and
until all Obligations with respect to Senior Indebtedness and all Claims
relating thereto are paid in full, any payment or distribution, including any
payment or distribution which may be payable or deliverable by reason of the
payment of any other indebtedness of the Company being subordinated to the
payment of the Debentures to which Debentureholders would be entitled but for
this Article Thirteen, shall be made to holders of Senior Indebtedness, as their
interests may appear, for application to the payment or prepayment of, the
Senior Indebtedness to the extent necessary to pay in full all such Senior
Indebtedness and all Obligations and Claims relating thereto in accordance with
terms thereof, after giving effect to any concurrent payment or distribution to
or for the holders of such Senior Indebtedness, except that Debentureholders may
receive shares of stock or any debt securities that are subordinated to at least
the same extent as the Debentures to Senior Indebtedness. Upon any such
application, dissolution, winding up, liquidation, readjustment or
reorganization, any payment or distribution of assets of the Company of any kind
or character whether in cash, property or securities (other than 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, the
payment of which is subordinated to the payment of all Senior Indebtedness which
may at the time be outstanding) to which the holders of the Debentures or the
Trustee would be entitled except for the provisions of this Article shall be
paid by the Company or the liquidating trustee or agent or other person making
such payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or whatsoever, direct to the holders of Senior Indebtedness
or their representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the principal of (and premium, if any) and
interest on the Senior Indebtedness held or represented by each, to the extent
necessary to pay in full all Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness; and in the event that, notwithstanding the foregoing, upon any
such application, dissolution, winding up, liquidation, readjustment or
reorganization, any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities (other than 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, the payment of which is subordinated to the payment of all Senior
Indebtedness which may at the time be outstanding) shall be received by the
Trustee or the holders of the Debentures before all Senior Indebtedness is paid
in full, such payment or distribution shall be paid over to the holders of such
Senior Indebtedness or their representative or representatives or to the trustee
or trustees under any indenture under which any instruments evidencing any of
such Senior Indebtedness may have been issued, ratably as aforesaid, for
application to the payment of all Senior Indebtedness remaining unpaid until all
such Senior Indebtedness shall have been paid
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in full, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness. Subject to the payment in full of all
Senior Indebtedness and all Obligations and Claims relating thereto, the holders
of the Debentures shall be subrogated (equally and ratably with all other
indebtedness ranking pari passu with the Debentures) to the rights of the
holders of Senior Indebtedness to receive payments or distribution of assets of
the Company applicable to the Senior Indebtedness to the extent that payments or
distributions otherwise payable to the Debentureholders have been applied to the
payment of Senior Indebtedness until the principal of and interest on the
Debentures shall be paid in full. No such payments or distributions to the
Senior Indebtedness shall, as between the Company, its creditors other than the
holders of Senior Indebtedness, and the holders of the Debentures, be deemed to
be a payment by the Company to or on account of the Debentures, it being
understood that the provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the holders of the Debentures, on
the one hand, and the holders of the Senior Indebtedness, on the other hand, and
nothing contained in this Article or elsewhere in this Indenture or in the
Debentures is intended to or shall impair, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the holders of the
Debentures, the obligation of the Company, which is unconditional and absolute,
to pay to the holders of the Debentures the principal of and interest on the
Debentures as and when the same shall become due and payable in accordance with
their terms, or to affect the relative rights of the holders of the Debentures
and creditors of the Company other than the holders of the Senior Indebtedness,
nor shall anything herein or therein 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 in respect of cash, property or
securities of the Company received upon the exercise of any such remedy. Upon
any application or distribution of assets of the Company referred to in this
Article, the Trustee, subject to the provisions of Section 8.01 hereof, and the
holders of the Debentures shall be entitled to rely upon a certificate of a
trustee in bankruptcy, a receiver, a liquidating trustee or agent or other
person making any distribution to the Trustee or to the holders of the
Debentures for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article. If any payment or distribution to which the Debentureholders
would otherwise have been entitled but for the provisions of this Article
Thirteen shall have been applied, pursuant to the provisions of this Article
Thirteen, to the payment of all amounts payable under Senior Indebtedness, then,
and in such case, the Debentureholders shall be entitled to receive from the
holders of such Senior Indebtedness any payments or distributions received by
such holders of Senior Indebtedness in excess of the amount required to make
payment in full, in cash or cash equivalents, of such Senior Indebtedness of
such holders.
(b) In the event and during the continuation of any default in
the payment of the principal of, or premium or sinking fund installments, if
any, or interest on, any
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Senior Indebtedness, or any default, or any event which, with notice or lapse of
time or both, would constitute a default, in any other agreement, term or
condition contained in any agreement under which any Senior Indebtedness is
issued, if the effect of such default is to cause, or permit the holder or
holders of such Senior Indebtedness (or a trustee on behalf of such holder or
holders) to cause, such Senior Indebtedness to become due prior to its stated
maturity, no payment or distribution (including any payment or distribution
which may be payable or deliverable by reason of the payment of any other
indebtedness of the Company being subordinate to payment of the Debentures)
shall be made on the Debentures for or on the account of any obligations with
respect to the Debentures or on account of my claim unless and until such
default shall have been remedied, if written notice of such default, or of
judicial proceedings pending with respect to such default, has been given to the
Trustee by the Company, or by any holder of Senior Indebtedness, nor shall any
such payment be made if after giving effect, as if paid, to such payment, any
such default would exist in the performance or observance of any covenant or
agreement of the Company contained in any agreement under which any Senior
Indebtedness shall have been issued or pursuant to which Senior Indebtedness
shall have been incurred. The Company shall promptly notify the Trustee in
writing of the existence of any such default or event or of any judicial
proceedings pending with respect to any such default. Within 15 days after
receipt of any such notice, the Trustee shall send notification thereof to the
Debentureholders in the manner and to the extent provided in Section 6.04(c).
SECTION 13.03. Payments Permitted; Knowledge of Trustee. Nothing
contained in this Article or elsewhere in this Indenture, or in any of the
Debentures, shall (a)impair, as between the Company and the Debentureholders,
the obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Debentures in accordance with their terms; (b)
affect the relative rights of Debentureholders and creditors of the Company
other than their rights in relation to holders of Senior Indebtedness, or (c)
prevent the Trustee or any Debentureholder from exercising its available
remedies upon an Event of Default, subject to the rights of holders or owners of
Senior Indebtedness to receive distributions and payments otherwise payable to
Debentureholders. The failure to make a payment on account of any Obligations
with respect to the Debentures by reason of any provision of this Article
Thirteen will not be construed as preventing the occurrence of an Event of
Default.
Without limiting the generality of the foregoing, nothing
contained in this Article Thirteen will restrict the right of the Trustee or the
Debentureholders to take any action to declare the Debentures to be due and
payable prior to their stated maturity pursuant to Section 7.01 or to pursue any
rights or remedies hereunder; provided, however, that all Senior Indebtedness
then due and payable or thereafter declared to be due and payable shall first be
paid in full, in cash or cash equivalents, before the Debentureholders or the
Trustee are entitled to receive any direct or indirect payment from the Company
on account of any Obligations with respect to the Debentures or on account of
any Claims.
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Notwithstanding the provisions of this Article Thirteen or any
other provision of this Indenture, or of the Debentures, but subject to the
provisions of Section 7.07 and Section 8.01 of this Indenture, the Trustee shall
not be charged with knowledge of the existence of any Senior Indebtedness nor of
any default in the payment of principal, premium, if any, sinking funds or
interest with respect to any Senior Indebtedness, or of any other default with
respect to any Senior Indebtedness, unless and until the Trustee shall have
received written notice thereof at its corporate trust office from the Company
or the holder or holders of such Senior Indebtedness or any trustee on behalf of
such holders who shall have been certified to be such by the Company or who
shall have otherwise established to the reasonable satisfaction of the Trustee
that he is such a holder or trustee; nor shall the Trustee be charged with
knowledge of the curing or waiving of any such default unless and until the
Trustee shall have received an Officers' Certificate of the Company to such
effect. 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 holder if it shall,
in the exercise of reasonable care, mistakenly pay over or distribute to holders
of Debentures, the Company, or any other person, moneys or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this Article
Thirteen or otherwise.
Nothing contained in this Article or elsewhere in this Indenture
or in any of the Debentures shall prevent the application by the Trustee or any
paying agent of any moneys held by the Trustee or such paying agent in trust for
the benefit of the holders of Debentures as to which notice of redemption shall
have been mailed or published at least once prior to the happening or an event
of default specified in Section 13.02(b) to the payment of or on account of the
principal of (and premium, if any) and interest on such Debentures, or prevent
the application by the Trustee or any paying agent of any moneys deposited,
prior to the happening of any event of default specified in Section 13.02(b),
with the Trustee or such paying agent in trust for the purposes of paying a
specified installment or installments of interest on the Debentures, to the
payment of such installments of interest on the Debentures.
Nothing in this Article shall affect the claims of or payments
to the Trustee under or pursuant to Section 8.06.
SECTION 13.04. Debentureholders Authorize Trustee to
Subordinate. Each holder of Debentures by his acceptance thereof authorizes the
Trustee in his behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 13.05. Trustee May Hold Senior Indebtedness. The Trustee
shall be entitled to all the rights set forth in this Article in respect of any
Senior Indebtedness at any time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in Section 8.15 or elsewhere in this
Indenture shall be construed to deprive the Trustee of any of its rights as such
holder.
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ARTICLE FOURTEEN
SATISFACTION AND DISCHARGE OF INDENTURE;
DEPOSITED MONEYS
SECTION 14.01. Satisfaction and Discharge of Indenture. If the
Company shall deliver to the Trustee for cancellation all Debentures theretofore
authenticated (other than any Debentures which shall have been destroyed, lost
or stolen and which shall have been replaced or paid as provided in Section
2.07) and not theretofore canceled, or if all the Debentures not theretofore
canceled or delivered to the Trustee for cancellation shall have become due and
payable (the date on which such Debentures become due and payable being
hereinafter in this Section called the "maturity" date), or shall have been
called for redemption pursuant to Article Three hereof and the Company shall
have deposited in trust with the Trustee funds (to be immediately available for
payment) sufficient to pay at maturity or upon redemption all of the Debentures
(other than any Debentures which shall have been destroyed, lost or stolen and
which shall have been replaced or paid as provided in Section 2.07) not
theretofore canceled or delivered to the Trustee for cancellation, including
principal and interest due or to become due to such date of maturity or
redemption date, as the case may be, then, subject to the provisions of Article
Thirteen:
(a) this Indenture shall cease to be of further effect
except as to the then existing rights of the Debentureholders to
register the transfer of or exchange of "Debentures" in accordance
with the terms of this Indenture and the Debentures, and on or
after such maturity date or redemption date, as the case may be,
the Trustee, on demand by the Company accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense
of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture; and
(b) all obligations of the Company in respect of the
Debentures shall cease and be discharged (except the obligation to
register the transfer of or exchange Debentures in accordance with
the terms of this Indenture and the Debentures), and the holders of
such Debentures shall thereafter be restricted exclusively to such
funds for any and all claims of whatsoever nature on their part
under this Indenture or with respect to such Debentures (except
with respect to any rights of registration of transfer, exchange or
as above stated).
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 8.06
shall survive.
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SECTION 14.02. Application by Trustee of Funds Deposited For
Payment of Debentures. All moneys deposited with the Trustee pursuant to Section
14.01 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Company acting as its own paying
agent), to the holders of the particular Debentures for the payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest.
SECTION 14.03. Payment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture all moneys then
held by any paying agent under the provisions of this Indenture shall, upon
demand by the Company or Trustee, be paid to the Trustee and thereupon such
paying agent shall be released from all further liability with respect to such
moneys.
SECTION 14.04. Return of Unclaimed Money. In case the holder of
any Debenture entitled to payment hereunder at any time outstanding hereunder
shall not, within six years after the maturity date of such Debenture, or if
such Debenture shall have been called for redemption, then within six years
after the date fixed for redemption of such Debenture, claim the amount on
deposit with the Trustee or other depositary for the payment of such Debenture,
the Trustee or other depositary shall pay over, to or upon the written order of
the Company the amount so deposited, upon receipt of a request signed by the
Chairman of the Board, the President or a Vice President of the Company, and
thereupon the Trustee or other depositary shall be released from and shall be
indemnified by the Company against any and all further liability with respect to
the payment of such Debenture and the holder of said Debenture shall be entitled
(subject to any applicable statute of limitations) to look only to the Company
as an unsecured creditor for the payment thereof.
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
TRUSTEES OR DIRECTORS
SECTION 15.01. Personal Immunity From Liability of
Incorporators, Stockholder, Etc. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Debenture, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer, trustee or director, as such, past, present
or future, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law or
equity, 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, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers, trustees or directors
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of the Company, as such, or of any predecessor or successor corporation, or any
of them, because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Debentures or implied therefrom; and that any and all
such liability is hereby expressly waived and released by every holder of
Debentures as a condition of, and as a consideration for, the execution and
delivery of the Indenture and the issue of such Debentures.
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 16.01. Successors. All the covenants, stipulations,
promises and agreements in this Indenture contained by or in behalf of the
Company shall bind its successors and assigns, whether so expressed or not.
SECTION 16.02. Acts by Successor Valid. Any act or proceeding by
any provision of this Indenture authorized or required to be done or performed
by any board, committee or officer of the Company shall and may be done and
performed with like force and effect by the like board, committee or officer of
any corporation that shall at the time be the lawful successor of the Company.
SECTION 16.03. Surrender of Powers by Company. The Company by
instrument in writing executed by authority of its Board of Directors and
delivered to the Trustee may surrender any of the powers reserved to the Company
and thereupon such power so surrendered shall terminate both as to the Company
and as to any successor corporation.
SECTION 16.04. Notices and Demands on Company and Trustee. Any
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of Debentures
to or on the Company may be given or served by being deposited as first class
mail, except as provided in Section 7.01(c), postage prepaid in a post-office
letterbox addressed (until another address is filed in writing by the Company
with the Trustee) as follows: General DataComm Industries, Inc., Attention:
Chairman, 1579 Straits Turnpike, Middlebury, Connecticut 06762-1299. Any notice,
election, request or demand by any Debentureholder to or upon the Trustee shall
be deemed to have been sufficiently given or made, for all purposes, if given or
made at the corporate trust office of the Trustee in the Borough of Manhattan,
City and State of New York.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impractical to mail notice of any event to
Debentureholders when such notice is required to be given pursuant to any
provision of this Indenture, then any
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manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice.
SECTION 16.05. Laws of New York to Govern. THIS INDENTURE AND
EACH DEBENTURE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE
OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICT OF LAW.
SECTION 16.06. Officer's Certificates and Opinions of Counsel;
Statements to be Contained Therein. Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions 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 have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (l) a statement that the person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may
be based, in so far as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based (insofar as it relates
to factual matters information with respect to which is in the possession of the
Company) upon the certificate, statement or opinion of or representations by any
officer or officers of the Company, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or
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opinion of or representations by an accountant or firm of accountants, unless
such officer or counsel, as the case may be, knows that the certificate or
opinion or representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous.
SECTION 16.07. Payments on Non-Business Days. In any case where
the date of maturity of interest on or principal of the Debentures or the date
of redemption of any Debenture shall not be a business day, then payment of
interest or principal may be made on the next succeeding business day with the
same force and effect as if made on the nominal date and no interest shall
accrue for the period after such nominal date.
SECTION 16.08. Provisions Required by Trust Indenture Act of
1939 to Control. 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 3l0 to
317, inclusive, of the Trust Indenture Act of l939, such required provision
shall control.
SECTION l6.09. Effect of Invalidity of Provisions. In case any
one or more of the provisions contained in this Indenture or in the 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 Indenture or of such Debentures, but this Indenture and
such Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 16.10. Indenture May Be Executed in Counterparts;
Trustee Accepts Trusts. This 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. The party of the second
part hereby accepts the trusts in this Indenture declared and provided, upon the
terms and conditions hereinabove set forth.
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IN WITNESS WHEREOF, GENERAL DATACOMM INDUSTRIES, INC., the party
of the first part, has caused this Indenture to be signed in its corporate name
by its Chairman of the Board, President or one of its Vice Presidents, and its
corporate seal to be affixed hereunto, duly attested by its Secretary or an
Assistant Secretary or the Treasurer; and CONTINENTAL STOCK TRANSFER & TRUST
COMPANY, the party of the second part, has caused this Indenture to be signed by
one of its Vice Presidents or Assistant Vice Presidents, and its corporate seal
to be affixed hereunto, duly attested by one of its Assistant Secretaries, all
as of the day and year first above written.
GENERAL DATACOMM INDUSTRIES, INC.
(SEAL) By: /s/ W. S. Lawrence
-------------------------
Senior Vice President
Attest:
/s/ H. S. Modlin, Sec'y
- -----------------------
Secretary
CONTINENTAL STOCK TRANSFER &
TRUST COMPANY
(SEAL) By: /s/_________________________________
Vice President
Attest:
/s/
- -------------------------
Assistant Secretary
