SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSAUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) February 15, 1995
Travel Ports of America, Inc.
(exact name of registrant as specified in its charter)
New York 33-7870-NY 16-1128554
(State or other jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
3495 Winton Place, Building C, Rochester, New York 14623
(Address of principal executive office) (Zip Code)
Registrants telephone number, including are code: (716)272-1810
THIS REPORT CONSISTS OF 94 PAGES.
Item 5. Other Events
On Febraury 15, 1995, the Registrant completed a private
placement resulting in the sale of (I) $4,650,000 principal
amount of 8.5% Convertible Senior Subordinated Debentures due
January 15, 2005, (the Debentures) and (ii) warrants (the
Warrants) to purchase 15,500 shares of common stock, par value
$.01 per share (the Common Stock) at a price of $3.60 per
share. The form of the Indenture, which sets out the form of
Debenture and their terms and conditions, and the form of the
Warrants are appended hereto as Exhibits 4-c, and 4-d,
respectively.
The net proceeds of approximately $4,250,000 are to be used
to increase the working capital of the Registrant.
The Debentures and Warrants were sold in a private placement
under Regulation D of the Securities Act of 1933, as amended, and
in offshore transactions under Regualtion S of the Act. The
securities have not been registered under the Act and may not be
offered or sold in the United States absent registration or an
applicable exemption from registration requirements.
Item 7. Fianancial Statements and Exhibits
(c) Exhibits
4-c Form of Indenture dated
as of January 24, 1995, between Travel Ports
of America, Inc. and American Stock Transfer
and Trust Company, as Trustee, with respect
to up to $5,000,000 principal amount of 8.5%
Convertible Senior Subordinated Debentures
due January 15, 2005.
4-d Form of Warrant to
purchase Common Stock.
99 Press Release dated
February 17, 1995.
SIGNATURE
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 thereunto duly authorized.
Dated: February 21, 1995 TRAVEL PORTS OF AMERICA, INC.
By: s/ William Burslem III
Name: William Burslem III
Title: Vice President and Secretary
EXHIBIT INDEX
Exhibit
No. Exhibit
4-c Form of Indenture dated as of
January 24, 1995, between Travel Ports of America,
Inc. and American Stock Transfer and Trust
Company, as Trustee, with respect to up to
$5,000,000 principal amount of 8.5% Convertible
Senior Subordinated Debentures due January 15,
2005.
4-d Form of Warrant to purchase Common Stock
99 Press release dated February 17, 1995.
EXHIBIT 4-c
INDENTURE, dated as of January 24, 1995 between TRAVEL
PORTS OF AMERICA, INC., a New York corporation (the "Company"),
and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York
corporation (the "Trustee").
Intending to be legally bound hereby, each party agrees
as follows for the benefit of the other party and for the equal
and ratable benefit of the Holders of the Company's 8% Senior
Subordinated Convertible Debentures due January 15, 2005 (the
"Securities");
I.
DEFINITIONS AND INCORPORATION BY REFERENCE
1. Definitions.
"Affiliate" means any person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Company.
"Agent" means any Registrar, Paying Agent, Conversion Agent
or co-registrar. See Section 2.03.
"Board of Directors" means the Board of Directors of the
Company or any duly authorized committee of that Board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force
and effect on the date of such certification and delivered to the
Trustee.
"Capitalized Leases" means, with respect to any person, all
obligations of such person under any agreement to lease, or lease
of, any real or personal property that are required to be
capitalized for financial reporting purposes in accordance with
generally accepted accounting principles and the amount of
Indebtedness shall be the capitalized amount of such obligations
determined in accordance with such principles.
"Capital Stock" means any class of capital stock of the
Company as it exists on the date of this Indenture or as it may
be constituted from time to time and warrants, options and
similar rights to acquire any such capital stock.
"Company" means the party named as such in this Indenture
unless and until a successor replaces it in accordance with this
Indenture and thereafter means the successor.
"Company Request" and "Company Order" mean, respectively, a
written request, order or consent signed in the name of the
Company by its Chairman of the Board, President or any Vice
President, and by its Treasurer, Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Consolidated Net Income" means, for any period, the
aggregate of the Net Income of the Company and its Subsidiaries
(if any) for such period, on a consolidated basis, determined in
accordance with generally accepted accounting principles,
provided that (i) the Net Income of any person which is not a
Subsidiary or is accounted for by the Company by the equity
method of accounting shall be included only to the extent of the
amount of dividends or distributions paid to the Company or a
Subsidiary, and (ii) the Net Income of any person acquired in a
pooling of interests transaction for any period prior to the date
of such acquisition shall be excluded. "Net Income" of any
person shall mean the net income (loss) of such person,
determined in accordance with generally accepted accounting
principles; excluding, however, from the determination of Net
Income any gain (but not loss) realized upon the sale or other
disposition (including, without limitation, dispositions pursuant
to leaseback transactions) of any real property or equipment of
such person which is not sold or otherwise disposed of in the
ordinary course of business, or of any capital stock of the
Company or a Subsidiary owned by such person. Should the Company
not have a Subsidiary during any measuring period, the Net Income
for such period shall be determined on a separate company basis.
"Consolidated Net Worth" means the consolidated equity of
the common stockholders of the Company and its consolidated
Subsidiaries, as determined in accordance with generally accepted
accounting principles, after excluding from the assets of the
Company the following: (i) patents, copyrights, trademarks, trade
names, non-compete agreements, franchises and other similar
intangibles; (ii) goodwill; and (iii) any surplus resulting from
any write-up of assets subsequent to October 31, 1994.
"Default" means any event which is, or after notice, or
passage of time or both would be, an Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as
in effect on the date of execution of this Indenture and as may
thereafter be amended.
"Holder" or "Securityholder" means the person in whose name
a Security is registered on the Registrar's books.
"Indebtedness" means, without duplication, with respect to
any person, as of any date, the principal of and any premium or
interest on (a) all indebtedness of such person for borrowed
money (including all indebtedness evidenced by notes, bonds,
debentures or other securities sold by such person for money) or
in respect of letters of credit issued for its own account,
(b) all indebtedness incurred by such person in the acquisition
(whether by way of purchase, merger, consolidation or otherwise
and whether by such person or another person) of any business,
real property or other assets (except assets acquired in the
ordinary course of the conduct of the acquiror's usual business),
(c) all Capitalized Leases, (d) guarantees by such person of
indebtedness described in clauses (a), (b) or (c), and
(e) renewals, extensions, refundings, deferrals, restructurings,
amendments and modifications of any such indebtedness, obligation
or guarantee.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Officer" means the Chairman of the Board, the President,
any Vice President, the Treasurer or the Secretary of the
Company.
"Officers' Certificate" means a certificate signed by two
Officers or by an Officer (other than the Secretary) and an
Assistant Secretary of the Company.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee.
"Parent" with respect to a person, means any corporation,
partnership, joint venture or other business entity which owns,
directly or through one or more Subsidiaries, shares of stock or
other interests having general voting power under ordinary
circumstances to elect a majority of the board of directors,
managers, trustees or other governing body of such person.
"person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
"principal" of a debt security means the principal of the
security plus the premium, if any, on the security.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities means the date specified
for that purpose in the Securities.
"Restricted Securities" means Securities which were acquired
by the Holder thereof other than pursuant to an effective
registration statement under the Securities Act of 1933, as
amended.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Securities described above and issued
under this Indenture.
"Securities Act" means the Securities Act of 1933, as in
effect on the date of execution of this Indenture and as may
thereafter be amended.
"Special Record Date" for the payment of any defaulted
interest means the date fixed by the Trustee pursuant to Section
2.12.
"Stated Maturity", when used with respect to the Securities
or any installment of principal thereof or interest thereon,
means the date specified in the Securities as the fixed date on
which the principal of such Securities or such installment of
principal or interest is due and payable.
"Subsidiary" means any person of which at the time of
determination made under this Indenture at least a majority of
capital stock having ordinary voting power for the election of
directors or other governing body of such person is owned by the
Company directly or through one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
77aaa-77bbbb) as in effect on the date of execution of this
Indenture.
"Trading Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday, other than any day on which securities are
not traded on the exchange or in the market which is the
principal United States market for the Common Stock of the
Company, as determined by the Board of Directors of the Company.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and thereafter means the successor.
"Trust Officer" means any officer or assistant officer of
the Trustee assigned by the Trustee to administer its corporate
trust matters.
2.
Other Definitions.
Defined
Term in Section
"Accelerated Redemption Obligations" 3.07
"Bankruptcy Law" 6.01
"Business Day" 4.10
"Common Stock" 10.01
"Conversion Agent" 2.03
"Custodian" 6.01
"Defaulted Interest" 2.12
"Disqualified Stock" 4.07
"Equity Interest" 4.07
"Event of Default" 6.01
"Legal Holiday" 13.08
"Minimum Equity" 3.07
"Offering Price" 10.07
"Paying Agent" 2.03
"Quoted Price" 10.03
"Registrar" 2.03
"Representative" 11.02
"Restricted Payments" 4.07
"Senior Indebtedness" 11.02
"U.S. Government Obligations" 8.01
3. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted
accounting principles in effect on the date of execution of this
Indenture;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in
the plural include the singular; and
(5) provisions apply to successive events and
transactions.
II.
THE SECURITIES
1. Form and Dating. The Securities and the Trustee's
certificate of authentication shall be substantially in the form
set forth in Exhibit A, the terms and provisions of which are a
part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or
usage or agreements to which the Company is a party. The Company
shall approve the form of the Securities and any notation, legend
or endorsement on them. Each Security shall be dated the date of
its authentication.
2. Execution and Authentication. Two Officers shall
execute the Securities for the Company by manual or facsimile
signature. The Company's seal shall be reproduced on the
Securities.
If an Officer whose signature is on a Security no longer
holds that office at the time the Trustee authenticates the
Security, the Security shall be valid nevertheless.
A Security shall not be valid until a duly authorized agent
of the Trustee manually signs the certificate of authentication
on the Security. The signature shall be conclusive evidence that
the Security has been authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue
in the aggregate principal amount of up to $5,000,000 upon a
written order of the Company signed by two Officers or by an
Officer and an Assistant Secretary of the Company. The aggregate
principal amount of Securities outstanding at any time may not
exceed that amount except as provided in Section 2.07.
The Securities shall be issuable in registered form without
coupons and only in denominations of $1,000 and any integral
multiple thereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. An authenticating agent
may authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent
has the same right as an Agent to deal with the Company or an
affiliate.
3. Registrar, Paying Agent and Conversion Agent. The
Company shall maintain an office or agency where Securities may
be presented for registration of transfer or for exchange
("Registrar"), an office or agency where Securities may be
presented for payment ("Paying Agent") and an office or agency
where Securities may be presented for conversion ("Conversion
Agent"). The Registrar shall keep a register of the Securities
and of their transfer and exchange. The Company may appoint one
or more co-registrars, one or more additional paying agents and
one or more additional conversion agents. The term "Paying
Agent" includes any additional paying agent; the term "Conversion
Agent" includes any additional conversion agent. The Company may
change any Paying Agent, Registrar, Conversion Agent or co-
registrar without notice to any Securityholder.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to
such Agent. The Company shall notify the Trustee of the name and
address of any such Agent not a party to this Indenture. If the
Company fails to appoint or maintain another entity as Registrar,
Paying Agent or Conversion Agent, the Trustee shall act as such.
The Company or any of its Subsidiaries may act as Conversion
Agent, Paying Agent, Registrar or co-registrar.
The Company initially appoints the Trustee as the Registrar,
Paying Agent and Conversion Agent.
4. Paying Agent to Hold Money in Trust. The Company
shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust for the
benefit of the Securityholders or the Trustee all moneys held by
the Paying Agent for the payment of principal of or interest on
the Securities, and shall notify the Trustee of any default by
the Company in making any such payment. While such default
continues, the Trustee may require a Paying Agent to pay all
money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent
shall have no further liability for the money. If the Company
acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of the Securityholders all money held
by it as Paying Agent.
5. Securityholder Lists. The Trustee shall preserve in
as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee on or before the tenth day
prior to each Interest Payment Date and at such other times as
the Trustee may request in writing a list in such form and as of
such date as the Trustee may reasonably require of the names and
addresses of Securityholders.
6. Transfer and Exchange. Subject to the requirements of
Section 2.13, where a Security is presented to the Registrar or a
co-registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if duly endorsed or
accompanied by a proper instrument or instruments of assignment
and transfer thereof and its requirements for such transaction
are met. Where Securities are presented to the Registrar or a
co-registrar with a request to exchange them for an equal
principal amount of Securities of other denominations, the
Registrar shall make the exchange as requested if the same
requirements are met. To permit registrations of transfers and
exchanges, the Company shall issue and the Trustee shall
authenticate Securities at the Registrar's request. Any exchange
or transfer shall be without charge, except that the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto.
Neither the Company, the Trustee nor any other agent of the
Company shall be required (i) to issue, register the transfer of
or exchange Securities during a period beginning at the opening
of 15 days before the day of any selection of Securities for
redemption under Section 3.01 and ending at the close of business
on the day of such day of selection, or (ii) to register the
transfer of or exchange of any Security so selected for
redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
7. Replacement Securities. If a mutilated Security is
surrendered to the Trustee or if the Holder of a Security claims
that the Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a
replacement Security dated the date of the lost, destroyed or
wrongfully taken Security, if, in the case of a lost, destroyed
or wrongfully taken Security, the holder of such Security
furnishes to the Trustee evidence satisfactory to it, in its
discretion, of the ownership of and the destruction, loss or
theft of such Security and shall furnish to the Company and to
the Trustee an indemnity bond sufficient in the judgment of the
Company and the Trustee to protect each of them and any agent for
any loss which any of them may suffer if a Security is replaced.
The Company may charge for its expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company.
8. Outstanding Securities. Securities outstanding at any
time are all Securities authenticated by the Trustee except for
those cancelled by it, those delivered to it for cancellation,
and those described in this Section as not outstanding. A
Security does not cease to be outstanding because the Company or
one of its Subsidiaries or an Affiliate holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee receives proof satisfactory
to it that the replaced Security is held by a bona fide
purchaser.
If Securities are considered paid under Section 4.01, they
cease to be outstanding and interest on them ceases to accrue.
9. Treasury Securities. In determining whether the
Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned
by the Company or an Affiliate shall be considered as though they
are not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee
knows are so owned shall be disregarded.
10.
2 . Temporary Securities. Until definitive Securities
are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities. Temporary Securities
shall be substantially in the form of definitive Securities but
may have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive
Securities in exchange for temporary Securities. Until so
exchanged, the temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities.
3 . Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar,
Paying Agent and Conversion Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange,
payment or conversion. The Trustee and no one else shall cancel
and shall, subject to the record-retention requirements of the
Securities Exchange Act of 1934, destroy Securities surrendered
for transfer, exchange, payment, replacement, conversion or
cancellation and deliver a certificate of such destruction to the
Company unless the Company instructs the Trustee in writing to
deliver the cancelled Securities to the Company. The Company may
not issue new Securities to replace Securities that it has paid
or that have been delivered to the Trustee for cancellation or
that any Securityholder has converted pursuant to Article X.
4 . Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid
to the person in whose name that Security is registered at the
close of business on the Regular Record Date for such interest
payment.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment
Date (herein called "Defaulted Interest") shall forthwith cease
to be payable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Securities are
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest which shall be fixed in
the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in
trust for the benefit of the persons entitled to such Defaulted
Interest as in this clause provided. Thereupon, the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
thereof to be mailed, first-class postage prepaid, to each Holder
of Securities at his registered address, not less than 15 days
prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed such Defaulted Interest shall be
paid to the persons in whose names the Securities are registered
at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities in any other lawful manner not
inconsistent with the requirements of any securities exchange or
automated trading system on which such Securities may be listed,
and upon such notice as may be required by such exchange or
automated trading system, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and
Section 2.06, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
5 . Legending of the Securities; Restriction on Transfer.
All Securities originally issued hereunder pursuant to the
exemption from registration provided in Regulation D under the
Securities Act shall bear the following legend:
"The Securities represented
by this certificate have not been
registered under the Securities Act of
1933, as amended (the "Securities Act"),
and may not be offered, sold or otherwise
transferred unless (i) a registration
statement under the Securities Act is in
effect with regard thereto or (ii) an
opinion of counsel that such registration
is not required under the Securities Act."
All Securities originally issued hereunder pursuant to an
exemption from registration provided in Regulation S under the
Securities Act shall bear the following legend:
"The Debentures represented
by this Certificate and the underlying
securities have not been registered under
the Securities Act of 1933, as amended
(the "Securities Act"), and may not be
offered or sold within the United States
or to, or for the account or benefit of,
United States persons (i) as part of their
distribution at any time and (ii) other
wise until 40 days after the later of the
commencement of the offering or the last
closing date, except in either case in
accordance with Regulation S under the
Securities Act. Terms used above have the
meaning given to them by Regulation S."
Prior to any transfer of any Security bearing either
such legend, in whole or in part, the Holder thereof shall
furnish to the Company and the Trustee an Opinion of Counsel, who
shall be reasonably satisfactory to the Company and the Trustee,
in substance reasonably satisfactory to the Company and the
Trustee, to the effect that such Security has been registered
under the Securities Act and any applicable state laws, or
registration is not required thereunder.
6 . Notification Regarding Restricted Securities. The
Company shall deliver to the Trustee and the Paying Agent an
Officers' Certificate and an Opinion of Counsel notifying the
Trustee and the Paying Agent at any time that the Company becomes
aware that a Security ceases to be a Restricted Security. The
Trustee and Paying Agent may conclusively rely on such notice and
shall treat each Security as a Restricted Security until they
receive such notice with respect to such Security. The Company
shall deliver to the Trustee and the Paying Agent an Officers'
Certificate and an Opinion of Counsel notifying the Trustee and
the Paying Agent whenever any registration statement registering
any of the Securities under the Securities Act is declared
effective by the SEC.
7 . CUSIP Numbers. The Company in issuing the Securities
may use a "CUSIP" number, and if so, the Trustee shall use the
CUSIP number in notices of redemption or exchange as a
convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness or accuracy
of the CUSIP number printed in the notice or on the Securities,
and that reliance may be placed only on the other identification
numbers printed on the Securities.
III.
REDEMPTION
1. Election to Redeem; Notice to Trustee. The Securities
may be redeemed at the election of the Company as a whole or in
part from time to time commencing on the period and at the
redemption prices specified in paragraph 5 of the Securities,
together with accrued interest to the redemption date. If the
Company wishes to redeem any or all of the Securities pursuant to
paragraph 5 of the Securities, the Company shall, at least forty
five (45) days prior to the redemption date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such redemption date and of the principal
amount of Securities to be redeemed. In the case of any
redemption, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with the provisions
of this Indenture and of the Securities with respect thereto.
2. Selection by Trustee of Securities to be Redeemed. If
less than all the Securities are to be redeemed pursuant to
paragraph 5 of the Securities, the particular Securities to be
redeemed shall be selected by the Trustee, from the Securities
not previously called for redemption by a method that complies
with the requirements of any exchange or automated quotation
system on which the Securities are listed and that the Trustee
deems fair and appropriate. The Trustee shall make the selection
not more than sixty (60) days and not less than twenty (20) days
before the redemption date. Securities in denominations of
$1,000 may only be redeemed in whole. The Trustee may select for
redemption portions (equal to $1,000 or any integral multiple
thereof) of the principal of Securities that have denominations
larger than $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of
Securities called for redemption. The Trustee shall notify the
Company promptly of the Securities or portions of Securities to
be called for redemption.
3. Notice of Redemption. At least twenty (20) days but
not more than sixty (60) days before a redemption date, the
Company shall mail a notice of redemption by first-class mail to
each Holder of Securities to be redeemed at such Holder's last
registered address.
The notice shall identify the Securities to be redeemed
and shall state:
(1) the redemption date;
(2) the redemption price (determined in accordance
with paragraph 5 of the Securities);
(3) the conversion price;
(4) the name and address of the Trustee and
Conversion Agent;
(5) that Securities called for redemption may be
converted at any time before the close of business on the
fifth business day prior to the redemption date;
(6) that Holders who want to convert Securities
must satisfy the requirements in paragraph 8 of the Securities;
(7) that Securities called for redemption must be
surrendered to the Trustee to collect the redemption price;
(8) that interest on Securities called for
redemption ceases to accrue on and after the redemption date;
and
(9) if any Security is being redeemed in part, the
portion of the principal amount of such Security to be redeemed
and that, after the redemption date, upon surrender of such
Security, a new Security or Securities in principal amount
equal to the unredeemed portion will be issued.
At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at its expense.
4. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due
and payable on the redemption date and at the redemption price.
Upon surrender to the Trustee (subject, however, to Section 2.13
and to the deposit by the Company of the redemption price
pursuant to Section 3.05), such Securities shall be paid at the
redemption price, plus accrued interest to the redemption date,
but interest installments whose maturity is on or prior to the
redemption date will be payable to the holder of record at the
close of business on the relevant record dates referred to in the
Securities.
5. Deposit of Redemption Price. Before the redemption
date, the Company shall deposit with the Trustee money sufficient
to pay the redemption price of, and accrued interest on, all
Securities to be redeemed on that date. The Trustee shall return
to the Company any money not required for that purpose.
6. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Trustee shall authenticate
for the Holder a new Security equal in principal amount to the
unredeemed portion of the Security surrendered.
7. Accelerated Redemption Provision. In the event that
the Company's Consolidated Net Worth as at the last day of any
fiscal quarter, commencing November 1, 1994 is equal to or less
than $5,000,000 (the "Minimum Equity") the Company shall,
commencing on the last day of the sixth month thereafter, pay to
the Trustee a sum in immediately available funds sufficient to
retire by redemption 25% of the principal amount of the then
outstanding Securities, at a redemption price which shall be 100%
of the principal amount thereof plus accrued and unpaid interest
to the date of redemption and shall continue to make like
payments semiannually thereafter, until such time as all
outstanding securities are redeemed (the obligations to make such
payments being hereinafter referred to as "Accelerated Redemption
Obligations"); provided, however, that if the Company's
Consolidated Net Worth is above the Minimum Equity as at the last
day of any subsequent fiscal quarter, the Company's obligation to
make Accelerated Redemption Obligation payments on dates after
such quarter end shall terminate; further provided, however, that
if the Company's Consolidated Net Worth shall thereafter be equal
to or less than the Minimum Equity as at the last day of any
subsequent fiscal quarter, the Company's semiannual Accelerated
Redemption Obligation payments shall again commence on the last
day of the sixth month thereafter.
At its option the Company may reduce its obligation to
make any Accelerated Redemption Obligation payment in cash
pursuant to the above paragraph by an amount not exceeding the
sum of the following:
(i) the principal amount of Securities theretofore
issued and reacquired (otherwise than through any
redemption pursuant to this Article or the Securities)
by the Company and delivered to the Trustee for
cancellation and not theretofore made the basis for the
reduction of an Accelerated Redemption Obligation
payment; and
(ii) the principal amount of Securities redeemed
and paid pursuant to paragraph 5 of the Securities and
delivered to the Trustee for cancellation, or which
shall have been duly called for redemption pursuant to
paragraph 5 of the Securities and the redemption price
of which shall have been deposited in trust for that
purpose, and which have not theretofore been made the
basis for the reduction of an Accelerated Redemption
Obligation payment.
On or before fifty (50) days prior to the due date of an
Accelerated Redemption Obligation payment, the Company shall
deliver to the Trustee an Officers' Certificate stating whether
it elects to reduce the amount to be paid to the Trustee in cash
on the next succeeding Accelerated Redemption Obligation payment
date and, if it elects to make such a reduction, setting forth
the amount of the reduction and the basis provided above for such
reduction (including identification of any previously cancelled
Securities not theretofore made the basis for the reduction of an
Accelerated Redemption Obligation payment), together with any
Securities required to be delivered to the Trustee for
cancellation as provided above, which are to be made the basis
for such reduction of an Accelerated Redemption Obligation
payment.
All redemptions required by this Section shall be made
pursuant to the provisions of this Article. Any Accelerated
Redemption Obligation payments made pursuant to this Section
shall be in addition to, and not in lieu of, any other mandatory
redemptions required by this Article or the Securities. The
Trustee shall have no obligation to monitor the Company's
Consolidated Net Worth.
IV.
COVENANTS
1. Payment of Securities. The Company shall pay the
principal of and interest on the Securities on the dates and in
the manner provided in the Securities and in this Indenture,
subject to the subordination provisions of Article XI. Principal
and interest shall be considered paid on the date due if the
Trustee or the Paying Agent holds at the opening of business on
that date money designated for and sufficient to pay all
principal and interest then due.
The Company shall pay interest on overdue principal,
compounded quarterly, at the rate borne by the Securities; it
shall pay interest on overdue installments of interest at the
same rate, in each case compounded quarterly, to the extent
lawful.
2. SEC Reports. Within 15 days after the Company files
with the SEC copies of its annual reports and other information,
documents and reports (or copies of such portions of any of the
foregoing as the SEC may by rules and regulations prescribe)
which it is required to file with the SEC pursuant to Section 13
or 15(d) of the Exchange Act, the Company shall deliver the same
with the Trustee. The Company shall timely comply with its
reporting and filing obligations under the applicable federal
securities laws.
3. Compliance Certificate. The Company shall deliver to
the Trustee within 105 days after the end of each fiscal year of
the Company, an Officers' Certificate stating that a review of
the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Company
has kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his knowledge the
Company has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and is not in default
in the performance or observance of any of the terms, provisions
and conditions hereof (or, if a Default or Events of Default
shall have occurred, describing all such Defaults or Events of
Default of which he may have knowledge) and that to the best of
his knowledge no event has occurred and remains in existence by
reason of which payments on account of principal of or interest,
if any, on the Securities are prohibited.
The Company will, so long as any of the Securities are
outstanding, deliver to the Trustee forthwith upon becoming aware
of (i) any Default, Event of Default or default in the
performance of any covenant, agreement or condition in this
Indenture or (ii) any event or default under any other mortgage,
Indenture or instrument as that term is used in Section 6.01(5),
an Officers' Certificate specifying such Default, Event of
Default or default.
4. Usury Laws. The Company will not assert, plead (as a
defense or otherwise) or in any manner whatsoever claim (and will
actively resist any attempt to compel it to assert, plead or
claim) in any action, suit or proceeding that the interest rate
on the Securities violates present or future usury or other laws
relating to the interest payable on any indebtedness and will not
otherwise avail itself (and will actively resist any attempt to
compel it to avail itself) of the benefits of any such laws.
5. Investment Company Act. The Company will not, and
will take such action so that none of the Subsidiaries will,
register as, or conduct their respective businesses or take any
action which shall cause any of them to become or be deemed to
be, an investment company as defined under the Investment Company
Act of 1940 and the rules and regulations of the SEC thereunder.
6. Dividend and Payment Restrictions Affecting
Subsidiaries. The Company will not, and will not permit any of
its Subsidiaries to, directly or indirectly, create or otherwise
cause or suffer to exist or become effective any consensual
encumbrance or restriction on the ability of any Subsidiary to
(i) pay dividends or make any other distributions on its Capital
Stock or any other interest or participation in, or measured by,
its profits, owned by the Company or any of its Subsidiaries or
pay any Indebtedness owed to the Company or any of its
Subsidiaries, (ii) make loans or advances to the Company or any
of its Subsidiaries, or (iii) transfer any of its properties or
assets to the Company or any of its Subsidiaries, except for such
encumbrances or restrictions in existence on the date of this
Indenture, including any renewal, refunding or refinancing
thereof, and encumbrances or restrictions existing under or by
reason of (A) this Indenture and the Securities, (B) applicable
law, (C) any instrument governing Indebtedness or capital stock
of a person acquired by the Company, or any of its Subsidiaries,
in existence at the time of such acquisition (but not in
connection with such acquisition), including any renewals,
refundings or refinancing thereof, provided, that, the
restrictions contained in such renewals, refundings or
refinancing are no more restrictive than those contained in such
instrument at the time of such acquisition, which encumbrance or
restriction is not applicable to any person, or to the properties
or assets of any person, other than the person, or the property
or assets of the person, so acquired by the Company or its
Subsidiaries, (D) by reason of customary non-assignment
provisions in leases entered into in the ordinary course of
business and consistent with past practices, or (E) with respect
to clause (iii) above, purchase money obligations for property
acquired in the ordinary course of business.
7. Restriction on Payment of Dividends and Stock
Repurchases. The Company may not, directly or indirectly, (i)
declare or pay any dividend on, or make any distribution to its
stockholders of, any shares of its Capital Stock of any class
(other than dividends or distributions payable in shares of
Capital Stock of the Company), or (ii) purchase, redeem or
otherwise acquire or retire for value any Equity Interest of the
Company, any Subsidiary or other Affiliate (other than any such
Equity Interests owned by the Company or any Subsidiary), or
(iii) permit any Subsidiary to declare or pay any dividend on, or
make any contribution to its stockholders of, any shares of its
capital stock, except to the Company or any Subsidiary (other
than dividends or distributions payable in Equity Interests of it
or the Company), or (iv) permit any Subsidiary to purchase,
redeem or otherwise acquire or retire for value any Equity
Interests of such Subsidiary, the Company or any Affiliate of
either of them (other than any such Equity Interests owned by the
Company or any Subsidiary) (such restricted dividends,
distributions, purchases, redemptions or other acquisitions or
retirements being collectively referred to as "Restricted
Payments") if at the time of such Restricted Payment:
(a) a Default or an Event of Default shall have
occurred and be continuing, or shall occur as a
consequence thereof; or
(b) if upon giving effect to such Restricted
Payment the aggregate amount expended for all such
Restricted Payments subsequent to the date of execution
of this Indenture shall exceed the sum of:
(1) 25% of the aggregate Consolidated Net
Income of the Company accrued during fiscal quarters
ending subsequent to October 31, 1994;
(2) the aggregate net proceeds, including
cash and the fair market value of property other than
cash (as determined in good faith by the Board of
Directors as evidenced by a Board Resolution), received
by the Company from the issue or sale (other than to a
Subsidiary) subsequent to the date of execution of this
Indenture of Capital Stock of the Company (other than
Capital Stock subject to redemption as provided in this
Indenture prior to the maturity of the Securities
(collectively "Disqualified Stock")) or of warrants to
purchase such Capital Stock (other than warrants to
purchase such Disqualified Stock) other than in
connection with the conversion of any Indebtedness;
(3) the aggregate net proceeds received by the
Company subsequent to the date of execution of this
Indenture from the issue or sale (other than to a
Subsidiary) or any debt securities or Disqualified Stock
of the Company, if, at such time, such debt securities
or Disqualified Stock, as the case may be, have been
converted into Capital Stock of the Company other than
Disqualified Stock; and
(4) $250,000. For purposes of any calculation pursuant to
the preceding sentence which is required to be made within 60 days
after the declaration of a dividend by the Company or any Subsidiary,
such dividend shall be deemed to be paid at the date of declaration,
and the subsequent payment of such dividend during such 60-day
period shall not be treated as an additional Restricted Payment.
Notwithstanding the foregoing, the provisions of this
Section 4.07 will not prevent (i) the payment of any dividend
within 60 days after the date of declaration with the payment
complied with the foregoing provisions on the date of
declaration; or (ii) the retirement of any shares of the
Company's Capital Stock by exchange for, or out of the proceeds
of the substantially concurrent sale (other than to a Subsidiary)
of, other shares of its Capital Stock (other than any
Disqualified Stock), and neither such retirement nor the proceeds
of any such sale or exchange shall be included in any computation
made under this Section 4.07.
"Equity Interest" means Capital Stock or warrants,
options or other rights to acquire Capital Stock.
8. Restriction on Transfer With Affiliates. The Company
will not, nor permit any Subsidiary to, directly or indirectly,
(i) enter into or permit to exist any transaction, including,
without limitation, the purchase, sale, lease or exchange of any
property, or the rendering of any service, with any Affiliate of
the Company or any officer or director of the Company or any
Affiliate of such officer or director, on terms that are less
favorable to the Company or such Subsidiary, as the case may be,
than those which might be obtained at the time of such
transaction from persons who are not Affiliates, (ii) loan or
advance any funds to any Affiliate, any officer or director of
the Company or an Affiliate of such officer or director if the
aggregate amount of principal and interest outstanding at any
time on all such loans exceeds $100,000, or (iii) purchase
securities of any Affiliate or an entity controlled by any
Affiliate. The restrictions in this Section 4.08 shall not apply
to intercompany advances or bona fide transactions with or
between Subsidiaries and/or the Company to the extent otherwise
permitted in this Indenture.
9. Incurrence of Indebtedness. The Company will not, nor
permit any of its Subsidiaries to, directly or indirectly,
create, incur, issue, assume, guarantee or become liable with
respect to, contingently or otherwise, or extend the maturity of,
any Indebtedness except for: (i) the Securities and other
obligations under this Indenture; (ii) Indebtedness of the
Company outstanding as of October 31, 1994; (iii) Senior
Indebtedness; (iv) Capitalized Lease obligations, letters of
credit to finance trade payables, in each case to the extent
incurred in the ordinary course of business of the Company and
its Subsidiaries; (v) Indebtedness of the Company or a Subsidiary
of the Company secured by liens on assets used in the ordinary
course of business by the Company or any Subsidiary and of which
the value of the collateral is equal to at least 50% of the
outstanding principal amount of such Indebtedness;
(vi) Indebtedness which is expressly junior in right of payment
to the Securities; or (vii) any amendment, removal, extension or
refunding of such Indebtedness.
2 . Plan of Liquidation. The Board of Directors or the
stockholders of the Company may not adopt any plan of liquidation
(other than a plan of liquidation incident to a permitted merger,
consolidation, sale of assets or other transaction described in
Article V of this Indenture) which provides for, contemplates or
the effectuation of which is preceded by, (i) the sale, lease,
conveyance or other disposition of all or substantially all of
the assets of the Company otherwise than substantially as an
entirety (Article V of this Indenture being the Article which
governs any such sale, lease, conveyance or other disposition
substantially as an entirety) and (ii) the distribution of all or
substantially all of the proceeds of such sale, lease, conveyance
or other disposition and of the remaining assets of the Company
to the holders of Capital Stock of the Company, unless the
Company shall have made provision for the satisfaction of the
Company's obligations hereunder and the Securities as to the
payment of principal and interest, in the amounts and in the
manner set forth below, (A) immediately following the adoption of
such plan or (B) not less than five business days ("Business
Days") prior to the making of any such liquidating distributions,
whichever occurs first. The Company shall be deemed to make
provision for such payment only if the Company irrevocably
deposits in trust with the Trustee U.S. Government Obligations
(as defined in Section 8.01) sufficient to pay in full the
redemption price that would be payable under paragraph 5 of the
Securities on the last Business Day of the second full calendar
month following the month in which such provision is made, plus
interest accrued and to accrue on the Securities to the last
Business Day of such second calendar month. No such liquidating
distributions may be made by the Company unless five Business
Days have elapsed from the making of such provision for payment
of the Securities and the Company shall have certified to the
Trustee by an Officers' Certificate that the provisions of this
Section 4.10 have been complied with.
The Company shall redeem all of the then outstanding
Securities on the last Business Day of the second full calendar
month following the month in which provision is made by the
Company for the payment of principal and interest pursuant to the
preceding paragraph, at the same redemption price payable on the
date of such redemption under paragraph 5 of the Securities, plus
all accrued and unpaid interest on such Securities to the date of
such redemption.
Notwithstanding the foregoing, no liquidating
distributions may be made by the Company if a Default or Event of
Default has occurred and is continuing nor may any such
liquidating distribution be made if for any reason the
application of the proceeds of any instruments held or to be held
in trust by the Trustee pursuant to this Section 4.10 are or
could become subject to any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting the Trustee's application of such proceeds in the
manner provided in this Section 4.10.
At least 60 days but not more than 90 days prior to the
date on which the Securities are to be redeemed by the Company
pursuant to this Section 4.10, the Company shall mail or cause
the Trustee to mail, at the Company's expense, a notice of
redemption to each Holder stating that all of the Securities are
to be redeemed, identifying the Section of this Indenture
pursuant to which the Securities are to be redeemed, describing
the facts which require such redemption and otherwise complying
with the notice provisions of Section 3.03.
If the Company has irrevocably deposited in trust with
the Trustee U.S. Government Obligations in accordance with the
provisions of this Section 4.10, the Company may terminate all of
its obligations under this Indenture other than the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08
and 8.03, and in Article IV and Article XI, all of which shall
survive until the Securities are no longer outstanding.
Thereafter, only the Company's obligations in Section 7.07 and
8.03 shall survive.
After a deposit made pursuant to this Section 4.10, the
Trustee upon request shall acknowledge in writing the discharge
of the Company's obligations under this Indenture except for
those surviving obligations specified above.
In order to have money available on the applicable
redemption date specified above to pay principal and interest on
the Securities, and on each principal or Interest Payment Date,
if any, occurring prior to such payment date to pay principal and
interest on the Securities, the U.S. Government Obligations shall
be payable as to principal or interest on or before such
redemption date or principal or Interest Payment Date in such
amounts as will provide the necessary money. U.S. Government
Obligations shall not be callable at the issuer's option.
The Trustee shall hold in trust the U.S. Government
Obligations deposited with it pursuant to this Section 4.10. It
shall apply the money from U.S. Government Obligations through
the Paying Agent and in accordance with this Indenture to the
payment of principal and interest on the Securities at the times
and in the amounts specified in this Indenture, including this
Section 4.10, and in the Securities, including, without
limitation, paragraph 1 thereof. Money and securities so held in
trust are subject to Article XI.
3 . Money for Security Payments to Be Held in Trust. If
the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of or interest
on the Securities, segregate and hold in trust for the benefit of
the Securityholders a sum sufficient to pay the principal or
interest so becoming due until such sum shall be paid to such
persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents, it will, on or prior to each date for the payment of the
principal of or interest on the Securities, deposit with a Paying
Agent or the Trustee a sum sufficient to pay the principal or
interest so becoming due, such sum to be held in trust for the
benefit of the Securityholders; and, unless such Paying Agent is
the Trustee, the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of
the principal of or interest on the Securities (and on the
Senior Indebtedness to the extent required by Article XI)
in trust for the benefit of the Securityholders (and the
holders of such Senior Indebtedness) until such sums shall
be paid to such persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the
making of any payment of principal or interest;
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such Paying Agent;
and
(4) maintain such records as may reasonably be
requested by the Trustee and furnish to the Trustee such records
as the Trustee may require.
The Company may at any time pay, or direct any Paying
Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money, subject in
all cases to the terms and provisions of Article XI hereof.
4 . Continued Existence. Subject to Article V, the
Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a
corporation.
5 . Maintenance of Properties, Etc. The Company shall,
and shall cause each of its Subsidiaries to, maintain its
properties and assets in good working order and condition and
make all necessary repairs, renewals, replacements, additions,
betterments and improvements thereto.
The Company shall, and shall cause each of its
Subsidiaries to, maintain with financially sound and reputable
insurers such insurance as may be required by law and such other
insurance, to such extent and against such hazards and
liabilities, as is customarily maintained by companies similarly
situated.
The Company shall, and shall cause each of its
Subsidiaries to, keep true books of records and accounts in which
full and correct entries will be made of all its business
transactions, in accordance with sound business practices, and
reflect in its financial statements adequate accruals and
appropriations to reserves, all in accordance with generally
accepted accounting principles.
The Company shall, and shall cause each of its
Subsidiaries to, comply with all statutes, laws, ordinances, or
government rules and regulations to which it is subject, non-
compliance with which would materially adversely affect the
business, prospects, earnings, properties, assets or condition,
financial or otherwise, of the Company and its Subsidiaries taken
as a whole.
6 . Taxes. The Company shall, and shall cause each of
its Subsidiaries to, pay prior to delinquency all taxes,
assessments and governmental levies, except as contested in good
faith and by appropriate proceedings.
V.
SUCCESSOR CORPORATION
1. When Company May Merge, Etc. The Company shall not
consolidate with or merge into, or transfer all or substantially
all of its assets in one or more related transactions, to, any
person unless:
(1) the Company shall be the surviving entity, or the
person formed by or surviving any consolidation or merger (if
other than the Company), or to which such sale, conveyance or
lease shall have been made, is a corporation organized and
existing under the laws of the United States or a State thereof
or the District of Columbia;
(2) the corporation formed by or surviving any such
consolidation or merger (if other than the Company), or to which
such sale, conveyance or lease shall have been made, assumes by
supplemental indenture all the obligations of the Company under
the Securities and this Indenture, except that it need not assume
the obligations of the Company as to conversion of Securities if
pursuant to Section 10.18 the Company or another person enters
into a supplemental indenture obligating it to deliver the
securities, cash or other assets deliverable upon conversion of
Securities;
(3) immediately after giving effect to such transaction
no Default or Event of Default shall have occurred and be
continuing; and
(4) the corporation formed by or surviving any such
consolidation or merger (if other than the Company), or to which
such sale, conveyance or lease shall have been made, has a net
worth not less than the Consolidated Net Worth of the Company at
the date hereof or immediately prior to such merger or transfer
of assets.
The Company shall deliver to the Trustee prior to the
proposed transaction an Officers' Certificate to the foregoing
effect and an Opinion of Counsel only as to clauses (1) and (2)
above stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
The surviving, transferee or lessee corporation shall
be the successor Company, but the predecessor Company in the case
of a transfer or lease shall not be released from the obligation
to pay the principal of and interest on the Securities.
VI.
DEFAULTS AND REMEDIES
1. Events of Default. An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on any
Security when the same becomes due and payable and the Default
continues for a period of ten (10) days, whether or not such
payment is prohibited by Article XI;
(2) the Company defaults in the payment of principal and
premium, if any, of any Security when the same becomes due and
payable at maturity, upon acceleration, redemption (including
payment pursuant to paragraph 5 or paragraph 6 of the Securities)
or otherwise, whether or not such payment is prohibited by
Article XI;
(3) the Company fails to make a deposit of any sinking fund
payment when and as due pursuant to this Indenture;
(4) the Company fails to comply with or perform any of its
other covenants or agreements in, or provisions of, the
Securities or this Indenture and the Default continues for the
period and after the notice specified below;
(5) the Company or a Subsidiary defaults under any bond,
debenture, note or other evidence of indebtedness for money
borrowed by the Company or a Subsidiary or under any mortgage,
indenture or instrument under which there may be issued or by
which there may be secured or evidenced any indebtedness for
money borrowed by the Company or any Subsidiary (or the payment
of which is guaranteed by the Company or a Subsidiary), whether
such indebtedness or guarantee now exists or shall be created
hereafter, which default shall constitute a failure to pay any
portion of interest or principal when due after any applicable
grace period or if the effect of such event of default is to
cause or permit the acceleration of such indebtedness prior to
its expressed maturity, and such event of default results in an
acceleration of a principal amount of such indebtedness without
such indebtedness having been discharged or such acceleration
having been rescinded or annulled, provided, that the aggregate
indebtedness in default under this clause (5) is in excess of
$100,000;
(6) a final judgment or final judgments for the payment of
money are entered by a court of competent jurisdiction against
the Company or any Subsidiary which remains unpaid or unstayed
and undischarged for a period (during which execution shall not
be effectively stayed) of 30 days after the date on which the
right to appeal has expired, provided, that, the aggregate of all
such judgments exceeds $100,000;
(7) the Company or any Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of
it or for all or substantially all of its property,
(D) makes a general assignment for the benefit of
its creditors, or
(E) generally is unable to pay its debts as the
same become due;
(8) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any
Subsidiary or for all or substantially all of its
property, or
(C) orders the liquidation of the Company or any
Subsidiary,
and the order or decree remains unstayed and in effect for 60
days; and
(9) in the event that the Company's reporting
obligations pursuant to Section 13 or 15(d) of the Exchange Act
suspended or terminated.
The term "Bankruptcy Law" means Title 11, U.S. Code or
any similar Federal or State law for the relief of debtors. The
term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
A Default under clause (4) is not an Event of Default
until the Trustee or the Holders of at least 25% in principal
amount of the outstanding Securities notifies the Company of the
default and the Company does not cure the default within 30 days
after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is
a "Notice of Default." If the Holders of 25% in principal amount
of the outstanding Securities request the Trustee to give such
notice on their behalf, the Trustee shall do so.
For purpose of a Default under clauses (7) and (8) the
term "Subsidiary" shall not include any Subsidiary or
Subsidiaries whose assets equal an aggregate of less than
$1,000,000.
Subject to the provisions of Sections 7.01 and 7.02, the
Trustee shall not be charged with knowledge of any Event of
Default, other then an Event of Default pursuant to Section
6.01(1) or 6.01(2), unless written notice thereof shall have been
given to the Trustee at its address set forth in Section 13.02 by
the Company, the Paying Agent, the Holder of a Security or an
agent of any Holder or any holder of any indebtedness.
The Company shall promptly notify the Trustee of the
occurrence of a Default under clause (4), (5) or (6).
Upon the occurrence of an Event of Default, the Holders
of a majority in principal amount of the outstanding Securities
may select a person to serve as director of the Company until the
Event of Default is cured.
2. Acceleration. If an Event of Default (other than an
Event of Default specified in Section 6.01(7) and (8)) occurs and
is continuing, the Trustee by written notice to the Company, or
the Holders of at least 25% in aggregate principal amount of the
then outstanding Securities by written notice to the Company and
the Trustee, may declare to be due and payable immediately the
principal amount of the outstanding Securities plus accrued
interest to the date of acceleration. Upon such declaration such
principal and interest shall be due and payable immediately. If
any Event of Default specified in Section 6.01(7) or 6.01(8)
occurs, all such principal of and interest on outstanding
Securities shall ipso facto become and be due and payable
immediately without any declaration, notice or other act on the
part of the Trustee or any Holder.
At any time after such a declaration of acceleration has
been made, the Holders of a majority in principal amount of the
outstanding Securities, by written notice to the Trustee, may
rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived, except
nonpayment of principal or interest that has become due solely
because of the acceleration; and if the Company has paid or
deposited with the Trustee a sum sufficient to pay all overdue
installments of interest on all Securities, the principal of any
Securities which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Securities, and all sums paid or advanced by the
Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel.
No such rescission shall affect any subsequent default
or impair any right consequent thereon.
3. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by
proceeding at law or in equity, to collect the payment of
principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does
not possess any of the Securities or does not produce any of them
in the proceeding and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express
trust, and recovery of judgment shall, after provision for the
payment of reasonable compensation, expense, disbursements and
advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of
which judgment has been recovered.
If the Trustee or any Securityholder 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 Securityholder, then and in every such case the Company, the
Trustee and the Securityholders shall, subject to any
determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Securityholders
shall continue as though no such proceeding had been instituted.
A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of
any other remedy. All remedies are cumulative to the extent
permitted by law.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
4. Waiver of Past Defaults. Subject to Section 9.02, the
Holders of a majority in principal amount of the outstanding
Securities by notice to the Trustee may waive an existing Default
or Event of Default and its consequences, except a continuing
Default or Event of Default in the payment of principal of or
interest on any Security. When a Default is waived, it is cured.
5. Control by Majority. The Holders of a majority in
principal amount of outstanding Securities may direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power
conferred on the Trustee; provided, however:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by an opinion of
its counsel, determines that the action so directed may not
lawfully be taken or if the Trustee in good faith shall, by an
Officer, determine that the proceedings so directed would involve
it in personal liability or be unduly prejudicial to the Holders
not taking part in such direction, and
(3) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
6. Limitation on Suits. A Securityholder may not pursue
any remedy with respect to this Indenture or the Securities
unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the
outstanding Securities make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against any
loss, liability or expense;
(4) the Trustee does not comply with the request within
thirty (30) days after receipt of the request and the offer and,
if requested, provision of indemnity; and
(5) during such 30-day period the Holders of a majority in
principal amount of the Securities do not give the Trustee a
direction inconsistent with such request.
A Securityholder may not use this Indenture to prejudice
the rights of another Securityholder or to obtain a preference or
priority over another Securityholder.
7. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the absolute and
unconditional right under this Indenture of any Holder of a
Security to receive payment of principal of and interest on the
Security, on or after the respective due dates expressed in the
Security, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired
or affected without the consent of the Holder.
Notwithstanding any other provision of this Indenture,
the right of any Holder of a Security to bring suit for the
enforcement of the right to convert the Security shall not be
impaired or affected without the consent of the Holder.
8. Collection Suit by Trustee. If an Event of Default in
payment of interest or principal specified in Section 6.01(1) or
(2) occurs and continues for a period of thirty (30) days, the
Company, upon demand of the Trustee, will pay to the Trustee, for
the benefit of the Securityholders the whole amount of principal
and interest then due on such Securities; and in addition
thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable
compensation, expenses and disbursements and advances of the
Trustee, its agents and counsel. If the Company fails to pay
such amount forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial
proceeding against the Company and may prosecute such proceeding
to judgment or final decree, and may enforce the same to recover
the amount of principal and interest remaining unpaid adjudged or
decreed to be payable in the manner provided by law out of the
property of the Company.
If an Event of Default occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Securityholders by such appropriate
judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
9. Trustee May File Proofs of Claim. In the case of the
pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company upon the
Securities or the property of the Company or its creditors, the
Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel) and of the Securityholders allowed in such judicial
proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby
authorized by each Securityholder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Securityholders, to pay
to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
or the rights of any holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Securityholder in any such
proceedings.
2 . Priorities. If the Trustee collects any money
pursuant to this Article, it shall pay out the money in the
following order:
First: to holders of Senior Indebtedness to the
extent required by Article XI;
Second: to the Trustee for amounts due under
Section 7.07;
Third: to Securityholders for amounts due and
unpaid on the Securities for principal and interest,
ratably, without preference or priority of any kind,
according to the amounts due and payable on the
Securities for principal and interest, respectively; and
Fourth: to the Company or any other person
lawfully entitled thereto.
The Trustee may fix a record date and payment date for
any payment to Securityholders pursuant to this Section.
3 . Undertaking for Costs; Notice of Proceedings. (a)
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken
or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11(a) does not apply
to a suit by the Trustee, a suit by a Holder pursuant of
Section 6.06 or 6.07 or a suit by Holders of more than 10% in
principal amount of the then outstanding Securities.
(b) In the event that the Trustee institutes a judicial
proceeding or proceedings for the benefit of the Securityholders
as provided in this Indenture, the Trustee shall give prior
written notice of such proceeding(s), if any, to the holders of
Senior Indebtedness or the Representative of such holders.
VII.
TRUSTEE
1. Duties of Trustee.
(1) If an Event of Default with respect to the Securities
has occurred and is continuing and the Trustee has actual
knowledge thereof, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture and use the same degree
of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of his own
affairs.
(2) Except during the continuance of an Event of Default:
(1) The Trustee undertakes to perform, with
respect to the Securities, only those duties that are
specifically set forth in this Indenture and no implied covenants
or obligations shall be read into this Indenture against the
Trustee.
(2) In the absence of bad faith on its part, the
Trustee may, with respect to the Securities, conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture. However, in the case of any certificates or
opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall examine such
certificates and opinions to determine whether they conform to
the requirements of this Indenture.
(3) 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:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section.
(2) The Trustee shall not be liable for any error
of judgment made in good faith by an Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent
facts.
(3) The Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 6.05.
(4) No provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(4) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and (c)
of this Section.
(5) The Trustee may refuse to perform any duty or exercise
any right or power unless it receives indemnity satisfactory to
it against any loss, liability or expense.
(6) The Trustee shall not be liable for interest on any
money received by it.
(7) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree with the
Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
2. Rights of Trustee.
Subject to Section 7.01,
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may require, and, in the absence of bad
faith on its part, rely upon, an Officers' Certificate;
(4) as a condition to the taking, suffering or omission of
any act contemplated hereunder, the Trustee may, but is not
required to, consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of
the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(8) the Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or
within its rights or powers.
3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee
of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. The
Trustee, however, must comply with Sections 7.10 and 7.11.
4. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture
or the Securities; it shall not be accountable for the Company's
use of the proceeds from the Securities; it shall not be
responsible for the use or application of any money received by
any Paying Agent other than the Trustee; it shall not be
responsible for any statement by the Company in the Indenture or
document used in connection with the sale of the Securities; and
it shall not be responsible for any statement in the Securities
other than its certificate of authentication.
5. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall
mail to each Securityholder notice of the Default within 30 days
after it occurs. Except in the case of a Default in payment of
principal of or interest on any Security or in the making of a
required sinking fund payment pursuant to Article XII or a
redemption payment pursuant to Article III, the Trustee shall be
protected in withholding the notice if and so long as the board
of directors of the Trustee, the executive or any trust committee
of such board and/or Officers of the Trustee in good faith
determine(s) that withholding the notice is in the interests of
Securityholders.
6. Compensation and Indemnity. The Company shall pay to
the Trustee from time to time reasonable compensation for its
services. The Trustee's compensation hereunder shall not be
limited by any law on compensation relating to the trustee of an
express trust. The Company shall reimburse the Trustee upon
request for all reasonable disbursements, advances and out-of-
pocket expenses incurred by it. Such expenses shall include the
reasonable compensation and out-of-pocket expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee for and hold it
harmless against any expense, loss or liability incurred by it in
connection with the administration of this trust and its duties
hereunder, except as set forth in the next paragraph. The
Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. The Company shall defend the claim and
the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company shall not pay for any
settlement of any claim without its consent, which consent will
not be unreasonably withheld.
The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through
negligence or bad faith.
To secure the Company's payment obligations in this
Section, the Trustee shall have a lien prior to the Securities on
all money or property held or collected by the Trustee, except
money or property held in trust to pay principal of or interest
on particular Securities, and subject to the terms and provisions
of Article XI.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(7) or (8)
occurs, the expenses and the compensation for the services are
intended to constitute expenses of administration under any
Bankruptcy Law.
7. Replacement of Trustee. A resignation or removal of
the Trustee and the appointment of a successor Trustee shall
become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section. The Trustee may resign
by so notifying the Company. The Holders of a majority in
principal amount of the outstanding Securities may remove the
Trustee by so notifying the Trustee and the Company and may
appoint a successor Trustee with the Company's consent. The
Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.09;
(2) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect to the
Trustee under any Bankruptcy Law;
(3) a Custodian or other public officer takes
charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in
principal amount of the then outstanding Securities may appoint a
successor Trustee to replace the successor Trustee appointed by
the Company.
If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of at least 10% in
principal amount of the outstanding Securities may petition any
court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.09, any
Securityholder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company.
Immediately after that, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee (subject
to the lien provided for in Section 7.06), the resignation or
removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of
the Trustee under this Indenture. The successor Trustee shall
mail notice of its succession to each Securityholder.
Notwithstanding replacement of the Trustee pursuant to this
Section, the Company's obligation under Section 7.06 shall
continue for the benefit of the retiring Trustee with respect to
expenses, losses and liabilities incurred by it prior to such
replacement.
8. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into or transfers all or
substantially all of its corporate trust business to, another
corporation or national banking association, the successor
corporation or national banking association without any further
act shall be the successor Trustee.
9. Eligibility; Disqualification. The Trustee shall have
a combined capital and surplus of at least $10,000,000 as set
forth in its most recent published annual report of condition.
VIII.
DISCHARGE OF INDENTURE
1. Termination of Company's Obligations. The Company may
terminate all of its obligations under the Securities and this
Indenture (except that the Company's obligations under Sections
7.06 and 8.03 shall survive) if all outstanding Securities
previously authenticated and issued (other than destroyed, lost
or stolen Securities which have been replaced or paid) have been
delivered to the Trustee for cancellation.
In addition, the Company may terminate all of its
obligations under this Indenture if:
(1) the Securities mature within twelve months or
all of them are to be called for redemption within twelve months
under arrangements satisfactory to the Trustee for giving the
notice of redemption; and
(2) the Company irrevocably deposits in trust with
the Trustee money or U.S. Government Obligations sufficient to
pay principal of and interest on the outstanding Securities to
maturity or redemption, as the case may be, and the Company
delivers to the Trustee an Officers' Certificate stating that all
conditions precedent to satisfaction and discharge of the
Indenture have been complied with, and an Opinion of Counsel to
the same effect. Immediately after making the deposit, the
Company shall give notice of such event and the proposed date of
payment to each Securityholder. The Company may make the deposit
only during the one-year period and only if Article XI permits
it.
The Company's obligations in Sections 2.03, 2.04, 2.05,
2.06, 2.07, 7.06, 7.07 and 8.03, and in Article IV and Article
XI, however, shall survive until the Securities are no longer
outstanding. Thereafter, the Company's obligations in Sections
7.07 and 8.03 shall survive.
After a deposit and delivery of the Officers'
Certificate and Opinion of Counsel made pursuant to this Section
8.01, the Trustee upon request shall acknowledge in writing the
discharge of the Company's obligations under the Securities and
this Indenture except for those surviving obligations specified
above.
In order to have money available on a payment date to
pay principal or interest on the Securities, the U.S. Government
Obligations shall be payable as to principal or interest on or
before such payment date in such amounts as will provide the
necessary money. U.S. Government Obligations shall not be
callable at the issuer's option.
"U.S. Government Obligations" means direct obligations
of the United States for the payment of which the full faith and
credit of the United States is pledged.
2. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it
pursuant to Section 8.01. It shall apply the deposited money and
the money from the U.S. Government Obligations through the Paying
Agent and in accordance with this Indenture to the payment of
principal of and interest on the Securities. Money and
Securities so held in trust are subject to Article XI, except for
money and Securities previously paid as provided hereunder and
held in trust for sinking fund payments in accordance with
Article XII.
3. Repayment to Company. Subject to Section 8.01, the
Trustee and the Paying Agent shall promptly pay to the Company
upon request any excess money or securities held by them at any
time. The Trustee and the Paying Agent shall pay to the Company
upon request any money held by them for the payment of principal
or interest that remains unclaimed for two years. After payment
to the Company, Securityholders entitled to any of such money
must look to the Company for payment as general creditors unless
applicable abandoned property law designates another person and
all liability of the Trustee or Paying Agent with respect to such
money shall thereupon cease.
IX.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
1. Without Consent of Holders. The Company, when
authorized by a Board Resolution, and with the consent of the
Trustee, may amend or supplement this Indenture or the Securities
without notice to or consent of any Securityholders:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Section 5.01 and 10.18;
(3) to provide for uncertificated Securities in
addition to certificated Securities; or
(4) to make any change that does not adversely
affect the legal rights of any Securityholder.
2. With Consent of Holders. The Company, when authorized
by a Board Resolution, and with the consent of the Trustee, may
amend or supplement this Indenture or the Securities without
notice to any Securityholder but with the written consent of the
Holders of at least a majority in principal amount of the
outstanding Securities. The Holders of a majority in principal
amount of the outstanding Securities may waive compliance by the
Company with any provision of this Indenture or the Securities
without notice to any Securityholder. Without the consent of
each Securityholder affected, however, an amendment, supplement
or waiver, including a waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Securities whose Holders
must consent to an amendment, supplement or waiver;
(2) reduce the rate of or extend the time for
payment of interest, including default interest, on any Security;
(3) reduce the principal of or extend the fixed
maturity of any Security;
(4) waive a default in the payment of the
principal of or interest on any Security;
(5) make any Security payable in money other than
that stated in the Security;
(6) make any change in Article X that adversely
affects the rights of a Holder of Securities;
(7) make any change in Section 6.04, 6.07 or 9.02
(third sentence);
(8) make any change in Article XI that adversely
affects the rights of any Securityholder; or
(9) make any change in Article XII that adversely
affects the rights of any Securityholder.
An amendment under this Indenture may not make any
change that adversely affects the rights under Article XI of any
holder of an issue of Senior Indebtedness unless the holders of
the issue pursuant to its terms consent to the change.
After an amendment under this Section becomes effective,
the Company shall mail to the Holders a notice briefly describing
the amendment.
It shall not be necessary for the consent of the Holders
under this Section to approve the particular form of any proposed
supplement, but it shall be sufficient if such consent approves
the substance thereof.
3. Revocation and Effect of Consents. Until an
amendment, supplement or waiver becomes effective, a consent to
an amendment, supplement or waiver by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent
is not made on any Security. Any such Holder or subsequent
Holder, however, may revoke the consent as to his Security or
portion of a Security. Such revocation shall be effective only
if the Trustee receives the notice of revocation before the date
the amendment, supplement or waiver becomes effective.
After an amendment, supplement or waiver becomes
effective, it shall bind every Securityholder unless it is of the
type described in any of clauses (1) through (9) of Section 9.02.
In such case the amendment, supplement or waiver shall bind each
Holder of a Security who has consented to it and every subsequent
Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security.
4. Notation on or Exchange of Securities. If an
amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it
to the Trustee. The Trustee may place an appropriate notation on
the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue,
and the Trustee shall authenticate, a new Security that reflects
the changed terms.
5. Trustee to Sign Amendments, Etc. The Trustee shall
sign any amendment, supplement or waiver authorized pursuant to
this Article if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of
the Trustee. If it does, the Trustee may but need not sign it.
In signing any amendment, supplement or waiver, the Trustee may
rely on and be fully protected by an Opinion of Counsel which
shall state that such amendment, supplement or waiver is
permitted or authorized by this Indenture. The Company may not
sign an amendment until the Board of Directors approves it.
X.
CONVERSION
1. Conversion Privilege. Subject to and upon compliance
with the provisions of this Article, a Securityholder may convert
a Security into Common Stock at any time in whole or from time to
time in part as stated in paragraph 8 of the Securities. The
number of shares issuable upon conversion of a Security is
determined as follows: Divide the principal amount to be
converted by the conversion price in effect on the conversion
date. Round the result to the nearest 1/100th of a share.
The initial conversion price is stated in paragraph 8 of
the Securities. The conversion price is subject to adjustment.
A Holder may convert a portion of a Security if the
portion is $1,000 or an integral multiple of $1,000. Provisions
of this Indenture that apply to conversion of all of a Security
also apply to conversion to a portion of it.
"Common Stock" means Common Stock, $.01 par value per
share, of the Company, as it exists on the date of this Indenture
or as it may be constituted from time to time.
Any portion of any Security converted into Common Stock
pursuant to this Indenture shall be deemed to have been paid in
full upon such conversion. Thereafter, this Indenture shall no
longer apply to the converted Security (i.e., the Common Stock),
and no holder of any Common Stock received in conversion shall
have any rights under this Indenture respecting such former
Security or Common Stock, provided, that, this Indenture shall
continue to apply, and the Securityholder shall have the benefits
hereunder, respecting any portion of any Security not so
converted.
2. Conversion Procedure. To convert a Security a Holder
must satisfy the requirements in paragraph 8 of the Securities.
The date on which the Holder satisfies all those requirements is
the conversion date. As soon as practical, the Company shall
deliver through the Conversion Agent a certificate for the number
of full shares of Common Stock issuable upon the conversion and a
check for any fractional share. The person in whose name the
certificate is registered shall be treated as a stockholder of
record on and after the conversion date.
No payment or adjustment will be made for accrued
interest on a converted Security or dividends on any Common Stock
issued on conversion.
If a Holder converts more than one Security at the same
time, the number of full shares issuable upon the conversion
shall be based on the total principal amount of the Securities
converted.
Upon a surrender of a Security that is converted in
part, the Company shall issue and the Trustee shall authenticate
for the Holder a new Security equal in principal amount to the
unconverted portion of the Security surrendered.
If the last day on which a Security may be converted is
a Legal Holiday in a place where a Conversion Agent is located,
the Security may be surrendered to that Conversion Agent on the
next succeeding day that is not a Legal Holiday.
3. Fractional Shares. The Company will not issue a
fractional share of Common Stock upon conversion of a Security.
Instead the Company will deliver its check for the current market
value of the fractional share. The current market value of a
fraction of a share is determined as follows: Multiply the
current market price of a full share by the fraction and round
the result to the nearest cent.
The current market price of a share of Common Stock is
the quoted price (the "Quoted Price") of the Common Stock on the
New York Stock Exchange (or on such national securities exchange
or automated trading system on which the Common Stock is then
primarily traded) on the last Trading Day prior to the conversion
date. In the absence of such a quotation, the Company shall
determine the current market price on the basis of such
quotations as it considers appropriate.
4. Taxes on Conversion. If a Holder of a Security
converts it, the Company shall pay any documentary, stamp or
similar issue or transfer tax due on the issue of shares of
Common Stock upon the conversion. However, the Holder shall pay
any such tax which is due because the shares are issued in a name
other than the Holder's name.
5. Company to Provide Stock. The Company shall reserve
out of its authorized but unissued Common Stock or its Common
Stock held in treasury enough shares of Common Stock to permit
the conversion of the Securities.
All shares of Common Stock which may be issued upon
conversion of the Securities shall be fully paid and non-
assessable.
The Company will endeavor to comply with all securities
laws regulating the offer and delivery of shares of Common Stock
upon conversion of Securities and will endeavor to list such
shares on each national securities exchange on which the Common
Stock is listed.
6. Adjustment for Change in Capital Stock. If the
Company:
(1) pays a dividend or makes a distribution on its
Common Stock in shares of its Common Stock;
(2) subdivides its outstanding shares of Common
Stock into a greater number of shares;
(3) combines its outstanding shares of Common Stock
into a smaller number of shares;
(4) makes a distribution on its Common Stock in
shares of its Capital Stock other than Common Stock; or
(5) issues by reclassification of its Common Stock
any shares of its Capital Stock;
then the conversion privilege and the conversion price in effect
immediately prior to such action shall be adjusted so that the
Holder of a Security thereafter converted may receive the number
of shares of Capital Stock of the Company which he would have
owned immediately following such action if he had converted the
Security immediately prior to such action.
The adjustment shall become effective immediately after
the record date in the case of a dividend or distribution and
immediately after the effective date in the case of a
subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon
conversion of it may receive shares of two or more classes of
Capital Stock of the Company, the Company shall determine the
allocation of the adjusted conversion price between the classes
of Capital Stock. After such allocation, the conversion
privilege and the conversion price of each class of Capital Stock
shall thereafter be subject to adjustment on terms comparable to
those applicable to Common Stock in this Article.
7. Adjustment for Rights Issue. If the Company
distributes any rights or warrants to all holders of its Common
Stock entitling them for a period expiring within 60 days after
the record date mentioned below to subscribe for or purchase
shares of Common Stock at a price per share less than the current
market price per share on that record date, then the conversion
privilege and the conversion price in effect immediately prior to
such action shall be adjusted (i) proportionately by the
difference between the then current market price and the offering
price (the "Offering Price") per share of the additional shares
if such Offering Price is greater than the then conversion price
or (ii) to equal the Offering Price if such Offering Price is
less than the then conversion price.
The adjustment shall be made successively whenever any
such rights or warrants are issued and shall become effective
immediately after the record date for the determination of
stockholders entitled to receive the rights or warrants.
8. Adjustment for Other Distributions. If the Company
distributes to all holders of its Common Stock any of its assets
or debt securities or any rights or warrants to purchase debt
securities, assets or other securities of the Company, the
conversion price shall be adjusted in accordance with the
formula:
M - F
C'= C x M
where:
C' = the adjusted conversion price.
C = the current conversion price.
M = the current market price per share of
Common Stock on the record date mentioned
below.
F = the fair market value on the record date of
the assets, securities, rights or warrants
applicable to one share of Common Stock.
The Board of Directors shall determine the
fair market value.
The adjustment shall be made successively whenever any
such distribution is made and shall become effective immediately
after the record date for the determination of stockholders
entitled to receive the distribution.
This Section does not apply to cash dividends or cash
distributions paid out of consolidated current or retained
earnings as shown on the books of the Company. Also, this
Section does not apply to rights or warrants referred to in
Section 10.07.
Section 10.09 Adjustments for Common Stock Issue. If
the Company issues shares of Common Stock for a consideration per
share less than the current market price per share on the date
the Company fixes the Offering Price of such additional shares,
then the conversion privilege and the conversion price in effect
immediately prior to such action shall be adjusted (i)
proportionately by the difference between the then current market
price and the Offering Price per share of the additional shares
if such Offering Price is greater than the then conversion price
or (ii) to equal the Offering Price if such Offering Price is
less than the then conversion price.
The adjustment shall be made successively whenever any
such issuance is made, and shall become effective immediately
after such issuance.
This Section does not apply to (i) any of the
transactions described in Sections 10.07 and 10.08, (ii) the
conversion of Securities, or the conversion or exchange of other
securities convertible or exchangeable for Common Stock, (iii)
Common Stock issued to the Company's employees under bona fide
employee benefit plans adopted by the Board of Directors and
approved by the holders of Common Stock when required by law, if
such Common Stock would otherwise be covered by this Section (but
only to the extent that the aggregate number of shares excluded
hereby and issued after the date of this Indenture shall not
exceed 5% of the Common Stock outstanding at the time of the
adoption of each such plan, exclusive of antidilution adjustments
thereunder), (iv) Common Stock upon the exercise of rights or
warrants issued to the holders of Common Stock, (v) Common Stock
issued to stockholders of any person which merges into the
Company in proportion to their stock holdings of such person
immediately prior to such merger, upon such merger, (vi) Common
Stock issued in a bona fide public offering pursuant to a firm
commitment underwriting, or (vii) Common Stock issued upon the
exercise of options or warrants issued by the Company prior to
the date of this Indenture.
2 . Adjustment for Convertible Securities Issue. If the
Company issues any securities convertible into or exchangeable
for Common Stock (other than securities issued in transactions
described in Sections 10.07 and 10.08 or the Securities) for a
consideration per share of Common Stock initially deliverable
upon conversion or exchange of such securities less than the
current market price per share on the date of issuance of such
securities, then the conversion privilege and the conversion
price in effect immediately prior to such action shall be
adjusted (i) proportionately by the difference between the then
current market price and the Offering Price if such Offering
Price is greater than the then conversion price or (ii) to equal
the Offering Price if such Offering Price is less than the then
conversion price.
The adjustment shall be made successively whenever any
such issuance is made, and shall become effective immediately
after such issuance.
This Section does not apply to (i) convertible
securities issued to stockholders of any person which merges into
the Company, or with a Subsidiary of the Company, in proportion
to their stock holdings of such person immediately prior to such
merger, upon such merger or (ii) convertible securities issued in
a bona fide public offering pursuant to a firm commitment
underwriting.
3 . Current Market Price. In Sections 10.07, 10.08,
10.09, and 10.10 the current market price per share of Common
Stock on any date is the average of the Quoted Prices of the
Common Stock for 30 consecutive Trading Days commencing 45
Trading Days before the date in question. In the absence of one
or more such quotations, the Company shall determine the current
market price on the basis of such quotations as it considers
appropriate.
4 . Consideration Received. For purposes of any
computation respecting consideration received pursuant to
Sections 10.09 and 10.10, the following shall apply:
(1) in the case of the
issuance of shares of Common Stock for cash,
the consideration shall be the amount of such
cash, provided that in no case shall any
deduction be made for any commissions,
discounts or other expenses incurred by the
Company for any underwriting of the issue or
otherwise in connection therewith;
(2) in the case of the
issuance of shares of Common Stock for a
consideration in whole or in part other than
cash, the consideration other than cash shall
be deemed to be the fair market value thereof
as determined in good faith by the Board of
Directors (irrespective of the accounting
treatment thereof), whose determination shall
be conclusive, and described in a Board
Resolution which shall be filed with the
Trustee; and
(3) in the case of the
issuance of securities convertible into or
exchangeable for shares, the aggregate
consideration received therefor shall be
deemed to be the consideration received by the
Company for the issuance of such securities
plus the additional minimum consideration, if
any, to be received by the Company upon the
conversion or exchange thereof (the
consideration in each case to be determined in
the same manner as provided in clauses (1) and
(2) of this Section).
5 . When Adjustment May be Deferred. No adjustment in
the conversion price need be made unless the adjustment would
require an increase or decrease of at least 1% in the conversion
price. Any adjustments that are not made shall be carried
forward and taken into account in any subsequent adjustment.
All calculations under this Article shall be made to the
nearest cent or to the nearest 1/100th of a share, as the case
may be.
6 . When No Adjustment Required. No adjustment need be
made for a transaction referred to in Sections 10.06, 10.07,
10.08, 10.09 or 10.10 if Securityholders are to participate in
the transaction on a basis and with notice that the Board of
Directors determines to be fair and appropriate in light of the
basis and notice on which holders of Common Stock participate in
the transaction.
No adjustment need be made for a change in the par
value or no par value of the Common Stock.
To the extent the Securities become convertible
into cash, no adjustment need be made thereafter as to the cash.
Interest will not accrue on the cash.
7 . Notice of Adjustment. Whenever the conversion price
is adjusted, the Company shall promptly mail to Securityholders a
notice of the adjustment. The Company shall file with the
Trustee a certificate from the Company's independent public
accountants briefly stating the facts requiring the adjustment
and the manner of computing it. The certificate shall be
conclusive evidence that the adjustment is correct.
8 . Voluntary Reduction. The Company from time to time
may reduce the conversion price by any amount for any period of
time if the period is at least 20 days and if the reduction is
irrevocable during the period, provided, that in no event may the
conversion price be less than the par value of a share of Common
Stock.
Whenever the conversion price is reduced, the
Company shall mail to Securityholders a notice of the reduction.
The Company shall mail the notice at least 15 days before the
date the reduced conversion price takes effect. The notice shall
state the reduced conversion price and the period it will be in
effect.
A reduction of the conversion price does not change
or adjust the conversion price otherwise in effect for purposes
of Sections 10.06, 10.07, 10.08, 10.09 and 10.10.
9 . Notice of Certain Transactions.
If:
(1) the Company takes any
action that would require an adjustment in the
conversion price pursuant to Sections 10.06, 10.07,
10.08, 10.09 or 10.10 and if the Company does not
let Securityholders participate pursuant to Section
10.14;
(2) the Company takes any
action that would require a supplemental indenture
pursuant to Section 10.18; or
(3) there is a liquidation or
dissolution of the Company, the Company shall mail
to Securityholders a notice stating the proposed
record date for a dividend or distribution or the
proposed effective date of a subdivision,
combination, reclassification, consolidation,
merger, transfer, lease, liquidation or
dissolution. The Company shall mail the notice at
least 15 days before such date. Failure to mail
the notice or any defect in it shall not affect the
validity of the transaction.
10 . Reorganization of Company. If the Company is a party
to a transaction subject to Section 5.01, upon consummation of
such transaction the Securities shall automatically become
convertible into the kind and amount of securities, cash or other
assets which the Holder of a Security would have owned
immediately after the consolidation, merger, transfer or lease if
the Holder had converted the Security immediately before the
effective date of the transaction. Concurrently with the
consummation of such transaction, the corporation formed by or
surviving any such consolidation or merger if other than the
Company, or the person to which such sale or conveyance shall
have been made, shall enter into a supplemental indenture so
providing and further providing for adjustments which shall be as
nearly equivalent as may be practical to the adjustments provided
for in this Article. The successor Company shall mail to
Securityholders a notice describing the supplemental indenture.
If the issuer of securities deliverable upon
conversion of Securities under the supplemental indenture is an
Affiliate of the formed, surviving, transferee or lessee
corporation, that issuer shall join in the supplemental
indenture.
If this Section applies, Sections 10.06, 10.07,
10.08 and 10.09 do not apply.
11 . Company Determination Final. Any determination that
the Company or the Board of Directors must make pursuant to
Section 10.03, 10.06, 10.08, 10.09, 10.10, 10.11, 10.12 or 10.14
is conclusive.
12 . Trustee's Disclaimer. The Trustee has no duty to
determine when an adjustment under this Article should be made,
how it should be made or what it should be. The Trustee has no
duty to determine whether any provisions of a supplemental
indenture under Section 10.18 are correct. The Trustee makes no
representation as to the validity or value of any securities or
assets issued upon conversion of Securities. The Trustee shall
not be responsible for the Company's failure to comply with this
Article. Each Conversion Agent other than the Company shall have
the same protection under this Section as the Trustee.
XI.
Subordination
1. Agreement to Subordinate. The Company and the Trustee
agree, and each Securityholder by accepting a Security agrees,
that the indebtedness evidenced by the Securities is subordinated
in right of payment, to the extent and in the manner provided in
this Article, to the prior payments in full of all Senior
Indebtedness, whether outstanding at the date of this Indenture
or later incurred, and that the subordination is for the benefit
of the holders of Senior Indebtedness. Notwithstanding anything
in this Indenture or any Security to the contrary, any and all
payments, distributions, proceeds, moneys and/or other assets and
properties paid to or collected, realized, or otherwise received
by the Trustee, the Paying Agent or any Securityholder in
connection with any payment or other action by the Company, any
Subsidiary or any other person acting on behalf of the Company,
or any exercise or other enforcement under the Indenture or any
Security, shall be subject to the terms and provisions of this
Article.
2. Certain Definitions.
"Representatives" means the indenture trustee or
other trustee, agent, administrator or representative for an
issue of Senior Indebtedness as and if designated by the holder
or holders of such Senior Indebtedness from time to time by
written notice to the Trustee from such holder(s) or such other
person.
"Senior Indebtedness" means all Indebtedness of the
Company for money borrowed from a bank, insurance company or any
other institutional lender, whether secured by assets of the
Company or any Subsidiary or unsecured, outstanding at any time
(including future advances), all Indebtedness of the Company
which is secured by liens or assets used in the ordinary course
of business by the Company or any Subsidiary and the value of the
collateral is equal to at least 50% of the then outstanding
principal amount of such Indebtedness, all together with interest
thereon (including post-petition interest) and all fees,
reimbursements and other amounts owing under the relevant
instruments and agreements evidencing, governing and/or securing
such Indebtedness; including (without limitation) within Senior
Indebtedness all principal, interest, fees, reimbursements and
other amounts owed under the Restated and Amended Credit
Agreement, dated September 29, 1994, between Fleet Bank and the
Company, and as the same may be supplemented, modified, amended
or restated from time to time in the manner provided therein; but
excluding from Senior Indebtedness, Indebtedness of the Company
to any of its Subsidiaries for money borrowed or advanced from
any such Subsidiary and Indebtedness which by its terms is not
superior in right of payment to the Securities.
3. Liquidation; Dissolution; Bankruptcy. Upon any
distribution to creditors and/or stockholders of the Company in a
liquidation or dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:
(1) holders of Senior Indebtedness shall be
entitled to receive payment in full in cash of the
principal of and interest (including interest accruing
after the commencement of any such proceeding) to the
date of payment on the Senior Indebtedness before
Securityholders shall be entitled to receive any payment
of principal of or interest on Securities; and
(2) until the Senior Indebtedness is paid in full
in cash, any distribution to which Securityholders would
be entitled but for this Article shall be made to
holders of Senior Indebtedness as their interests may
appear, except that Securityholders may receive
securities that are subordinated to Senior Indebtedness
to at least the same extent as the Securities.
4. Default on Senior Indebtedness. Upon the maturity of
any Senior Indebtedness by lapse of time, acceleration or
otherwise, all such Senior Indebtedness shall first be paid in
full, or such payment duly provided for in cash or in a manner
satisfactory to the holders of such Senior Indebtedness, before
any payment is made by the Company, the Trustee, the Paying Agent
or any other person acting on behalf of the Company on account of
the principal or interest on the Securities.
The Company may not pay or prepay any principal of,
interest on or other amount respecting the Securities (including
(without limitation) any payment into the sinking fund or any
other fund), and may not acquire any Securities for cash or for
any other asset or property (other than Capital Stock of the
Company), or cause, suffer or permit the Trustee, the Paying
Agent, any Subsidiary of the Company or any other person acting
on behalf of the Company to do so, and neither the Trustee, nor
any Securityholder nor any person acting on behalf of any of them
may seek to receive or collect any payment or other amount under
this Indenture or any Security, or may exercise or otherwise
enforce any of their respective rights, powers, privileges,
remedies and interests under this Indenture or any Security, if:
(1) a default on Senior Indebtedness occurs and is
continuing that permits holders of such Senior
Indebtedness to accelerate its maturity, and
(2) (i) the default is the subject of judicial
proceedings, (ii) the Company shall have received notice
respecting the continuation of a default under the
Senior Indebtedness and specifically requesting the
imposition of the standstill period provided by this
Section, or (iii) the Company receives a notice of the
acceleration of any of the Senior Indebtedness, which
notice is from a person who may give them pursuant to
such Senior Indebtedness.
If the Company receives any such notice, a similar
notice received within nine months thereafter relating to the
same default on the same issue of Senior Indebtedness shall not
be effective for purposes of this Section.
The Company may resume payments on the Securities and
may acquire them when:
(a) the default is cured or waived,
(b) 150 days pass after the notice is given if the
default is a result of the failure to make any payment
due under the instruments and agreements governing
Senior Indebtedness and is not the subject of judicial
proceedings, or
(c) 120 days pass after the notice is given if the
default is for any reason other than as set forth in
clause (b) and is not the subject of judicial
proceedings,
if this Article otherwise permits the payment or acquisition at
that time.
5. Acceleration of Securities. If payment of the
Securities is accelerated because of an Event of Default, the
Company shall promptly notify holders of Senior Indebtedness of
the acceleration. The Company may pay the Securities after such
acceleration occurs if this Article permits the payment at that
time.
6. When Distribution Must Be Paid Over. Any payments,
distributions, proceeds, monies and/or other assets and
properties paid to or collected, realized or otherwise received
by the Trustee, the Paying Agent, any Securityholder or any
person acting therefor in connection with any payment or other
action by the Company, any Subsidiary or any other person acting
on behalf of the Company, or any exercise or other enforcement
under this Indenture or any Security, during any time when the
Company is not permitted to make payments on the Securities under
this Article, any and all such payments, distributions, proceeds,
monies or other assets and properties shall be held by the
recipient in trust for the benefit of, and shall be paid
forthwith over and delivered to the holders of Senior
Indebtedness (pro rata as to each of such holders on the basis of
the respective amounts of Senior Indebtedness held by them) or
their Representative or the trustee under the indenture or other
agreement (if any) pursuant to which Senior Indebtedness may have
been issued, as their respective interest may appear, for
application to the payment of all Senior Indebtedness remaining
unpaid to the extent necessary to pay all Senior Indebtedness in
full in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the holders of
Senior Indebtedness.
If a distribution is made to Securityholders that
because of this Article should not have been made to them, the
Securityholders who receive the distribution shall hold it in
trust for holders of Senior Indebtedness and pay it over to them
as their interests may appear.
7. Notice by Company. The Company shall promptly notify
the Trustee and the Paying Agent of any facts known to the
Company that would cause a payment of principal of or interest on
the Securities to violate this Article, but failure to give such
notice shall not affect the subordination of the Securities to
the Senior Indebtedness provided in this Article. Nothing in
this Article shall apply to claims of, or payment to, the Trustee
under or pursuant to Section 7.07.
8. Subrogation. After all Senior Indebtedness is paid in
full and until the Securities are paid in full, Securityholders
shall be subrogated to the rights of holders of Senior
Indebtedness to receive distributions applicable to Senior
Indebtedness to the extent that distributions otherwise payable
to the Securityholders have been applied to the payment of Senior
Indebtedness. A distribution made under this Article to holders
of Senior Indebtedness which otherwise would have been made to
Securityholders is not, as between the Company and
Securityholders, a payment by the Company on Senior Indebtedness.
9. Relative Rights. This Article defines the relative
rights of Securityholders and holders of Senior Indebtedness.
Nothing in this Indenture shall:
(1) impair, as between the Company and
Securityholders, the obligation of the Company, which is
absolute and unconditional, to pay principal of and
interest on the Securities in accordance with their
terms; or
(2) prevent the Trustee or any Securityholder from
exercising its available remedies upon a Default or
Event of Default, subject to the rights of holders of
Senior Indebtedness to receive distribution otherwise
payable to Securityholders, except as otherwise provided
herein.
If the Company fails because of this Article to pay
principal of or interest on Security on the due date, the failure
is still a Default or Event of Default.
2 . Subordination May Not Be Impaired By Company. No
right of any holder of Senior Indebtedness to enforce the
subordination of the indebtedness evidenced by the Securities
shall be impaired by any act or failure to act by the Company or
by its failure to comply with this Indenture.
3 Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior
Indebtedness, the distribution may be made and the notice given
to the Representative. Whenever the Trustee is required or
permitted to give any notice of default, redemption,
acceleration, payment and the like to any Securityholder, the
Trustee shall send a copy of each such notice to the holders of
Senior Indebtedness who have given the Trustee a written request
for copies thereof (individually or through their
Representative).
4 . Rights of the Trustee and Paying Agent. The Trustee
or Paying Agent may continue to make payments on the Securities
until it receives notice of facts that would cause a payment of
principal of or interest on the Securities to violate this
Article. Only the Company, a Representative or a holder of an
issue of Senior Indebtedness that has no Representative may give
the notice.
The Trustee in its individual or any other capacity may
hold Senior Indebtedness with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights.
5 . Ranking of Securities. The indebtedness evidenced by
the Securities shall rank senior to all indebtedness evidenced by
securities of the Company issued by the Company after the date of
this Indenture, any other evidence of Indebtedness of the Company
except as expressly provided for in Section 11.01, and the
Capital Stock of the Company, including any rights or warrants
entitling holders thereof to subscribe for or purchase shares of
Capital Stock of the Company or any securities convertible into
or exchangeable for shares of Capital Stock of the Company issued
by the Company after the date of this Indenture.
XII.
SINKING FUND
1. Sinking Fund Payments. As and for a sinking fund
for the retirement of the Securities, the Company will, until all
Securities are paid or payment thereof provided for, deposit in
accordance with Section 3.05, beginning on January 15, 2001 and
on January 15 in each year thereafter to and including January
15, 2004, an amount in cash sufficient to redeem on such date
fixed for redemption 20% of the aggregate principal amount of the
issued Securities annually at a sinking fund redemption price
equal to the face amount of the Securities to be redeemed plus
accrued and unpaid interest to the date hereinbefore set forth
for redemption through operation of the sinking fund, sufficient
to retire 80% of the issued Securities prior to maturity. The
cash amount of any sinking fund payment is subject to reduction
as provided in Section 12.02. Each sinking fund payment shall be
applied to the redemption of Securities on such January 15 as
herein provided. In the event the Company desires to satisfy a
sinking fund payment with Securities pursuant to Section 12.02
but the aggregate principal amount of such Securities then held
by the Company or its Subsidiaries (the "Treasury Securities") is
less than the amount required for such sinking fund payment, the
Company may redeem, at a price equal to the principal amount of
the Securities plus accrued interest to the date fixed for
redemption (notwithstanding the redemption price in paragraph 5
of the Securities), Securities in a principal amount equal to the
difference between (I) the required principal payment and
(II) the principal amount of Treasury Securities.
2. Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver outstanding Securities (other than
any previously called for redemption) and (ii) may apply as a
credit Securities (a) which have been surrendered for conversion
by the Holders pursuant to Article X, (b) which have been
redeemed at the election of the Company pursuant to Article III,
or (c) which have been theretofore acquired by the Company
otherwise than by redemption and delivered to the Trustee for
cancellation in each case in satisfaction of all or any part of
any sinking fund payment required to be made pursuant to Section
12.01, provided that such Securities have not been previously so
credited. Each such Security shall be received and credited for
such purpose by the Trustee at the sinking fund redemption price
set forth in Section 12.01 for redemption through operation of
the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly.
3. Redemption of Securities for Sinking Fund. On or
before October 15, in each year commencing with the year 2001 and
ending in 2004, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing
sinking fund payment pursuant to Section 12.01, the portion
thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities pursuant to Section 12.02 and
will also deliver to the Trustee any Securities to be so
delivered. The Trustee shall select the Securities to be
redeemed upon the next ensuing sinking fund payment date in the
manner specified in Section 3.02 and cause notice of the
redemption thereof to be given in the name of and at the expense
of the Company upon not less than twenty (20) days' written
notice mailed to each Holder of Securities at the Holder's
registered address. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 3.05 and 3.06.
XIII.
MISCELLANEOUS
1. Notices; Reporting Date. Any notice or communication
shall be sufficiently given if in writing and delivered in person
or mailed by first-class mail addressed as follows:
if to the Company:
Travel Ports of America, Inc.
3495 Winton Place
Building C
Rochester, New York 14623
Attention: John Holahan,
President
if to the Trustee:
American Stock Transfer & Trust Company
40 Wall Street
New York, New York 10005
Attention: George Karfunkel
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Securityholder
shall be mailed to such Securityholder at the address which
appears on the registration books of the Registrar and shall be
sufficiently given to such Securityholder if so mailed by first
class mail within the time prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders. If a notice
or communication is mailed in the manner provided above, it is
duly given, whether or not the addressee receives it, except that
notice to the Trustee shall only be effective upon receipt
thereof by the Trustee. If the Company mails a notice or
communication to Securityholders it shall mail a copy of such
notice to the Trustee and each Agent at the same time. All
notices or communications shall be in writing.
The reporting date for Section 7.06 is December 15 of
each year. The first reporting date is December 15, 1995.
2. Communication by Holders with Other Holders.
Securityholders may communicate with other Securityholders with
respect to their rights under this Indenture or the Securities.
3. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish
to the Trustee:
(1) an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel, stating that, in the opinion of
such counsel, all such conditions precedent have been complied
with.
4. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall
include:
(1) a statement that the person signing such certificate or
opinion has read such covenant or condition and the definitions
relating thereto;
(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 or
she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
5. When Treasury Securities Disregarded. In determining
whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or by any Affiliate of the
Company shall be disregarded, except that for the purpose of
determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Securities which the
Trustee knows are so owned shall be so disregarded. Upon request
of the Trustee, the Company shall furnish to the Trustee promptly
an Officer's Certificate listing and identifying all Securities,
if any, known by the Company to be owned by or held for the
account of the Company, or any Affiliate of the Company and the
Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are outstanding for
the purposes of any such determination.
6. Rules by Trustee and Agents. The Trustee may make
reasonable rules for action by, or at a meeting of,
Securityholders. The Registrar or Paying Agent may make
reasonable rules for its functions.
7. Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or a day on which banking institutions are not required to
be open in the city in which the Trustee administers its
corporate trust business. If a payment date is a Legal Holiday
at a place of payment, payment may be made at the place on the
next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period.
8. Governing Law. The laws of the State of New York
shall govern this Indenture and the Securities without regard to
principles of conflicts of law.
9. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such
indenture, loan or debt agreement may not be used to interpret
this Indenture.
10. No Recourse Against Others. Liabilities of directors,
officers, employees and stockholders, as such, of the Company are
waived and released as provided in paragraph 19 of the
Securities.
11. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its
successors.
12. Duplicate Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement.
. Separability. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby, and a Holder shall have no claim therefor against any
party hereto.
TRAVEL PORTS OF AMERICA, INC.
By:
Name:
Title:
AMERICAN STOCK TRANSFER & TRUST
COMPANY
By:
Name:
Title:
EXHIBIT A
(FACE OF SECURITY)
No. $
TRAVEL PORTS OF AMERICA, INC.
8% SENIOR SUBORDINATED CONVERTIBLE DEBENTURES
DUE JANUARY 15, 2005
promises to pay to
or registered assigns the principal sum of Dollars on
January 15, 2005
The provisions on the back of
this certificate are incor-
porated as if set forth on the
face of certificate.
Interest Payment Dates:
Record Dates:
DATED:
Certificate of Authentication
This Security is one of the (Seal)
Securities described in the
within mentioned Indenture.
AMERICAN STOCK TRANSFER AND TRAVEL PORTS OF AMERICA, INC.
TRUST COMPANY, as Trustee
By: By:
Authorized Signature
By:
(REVERSE OF SECURITY)
TRAVEL PORTS OF AMERICA, INC.
8% SENIOR SUBORDINATED CONVERTIBLE DEBENTURES
DUE JANUARY 15, 2005
2 Interest. Travel Ports of America, Inc., a New York
corporation (the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown
above. The Company will pay interest quarterly commencing
April 15, 1995. Securities issued by the Company after
January 24, 1995, the initial closing date (the "Initial Closing
Date") will bear interest from the respective subsequent closing
date, but in all other respects will be on the same terms and
conditions as the other Securities issued pursuant to the
Indenture. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
3 Method of Payment. The Company will pay interest on the
Security (except defaulted interest) to the persons who are
registered holders of Securities at the close of business on the
record date for the next interest payment date even though
Securities are cancelled after the record date and on or before
the interest payment date. The Company will pay principal and
interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts.
The Company will pay interest by its check payable in such money
mailed to the holder's registered address.
4 Paying Agent, Registrar and Conversion Agent.
Initially, American Stock Transfer & Trust Company (the
"Trustee") will act as Paying Agent, Registrar and Conversion
Agent. The Company may change any Paying Agent, Registrar or
Conversion Agent without notice to any Securityholder. The
Company or any of its subsidiaries may act in such capacity.
5 Indenture. The Company issued the Securities under an
Indenture dated as of January 24, 1995 (the "Indenture") between
the Company and the Trustee. The terms of the Securities include
those stated in the Indenture. The Securities are subject to all
such terms, and Securityholders are referred to the Indenture for
a statement of them. The Securities are limited to the aggregate
principal amount of $5,000,000.
6 Redemption. The Securities may be redeemed by the
Company at any time, as a whole or from time to time in part,
commencing January 15, 1998, at a redemption price (expressed in
percentages of the principal amount) set forth below, plus
accrued and unpaid interest to the redemption date (and subject
to the right of any recordholder to receive the interest payable
on the applicable interest payment date that is on or prior to
the redemption date), except Securities redeemed specifically for
a sinking fund payment shall be redeemed at par, plus accrued and
unpaid interest. If redeemed during the periods indicated below,
the applicable redemption percentage would be:
From Through Percentage
January 15, 1998 January 14, 1999 109.0%
January 15, 1999 January 14, 2000 108.0%
January 15, 2000 January 14, 2001 106.5%
January 15, 2001 January 14, 2002 105.0%
January 15, 2002 January 14, 2003 104.0%
January 15, 2003 January 14, 2004 103.0%
January 15, 2004 January 14, 2005 101.5%
7 Accelerated Redemption. If the Company's Consolidated
Net Worth (as defined in the Indenture) on the last day of any
fiscal quarter commencing November 1, 1994, is $5,000,000 or
less, the Company will be required within six months, to begin
semiannual redemptions of 25% of the principal amount of the then
outstanding Securities and to continue like redemptions until its
Consolidated Net Worth is more than $5,000,000 or all Securities
are redeemed. The Company may reduce the principal amount of
Securities to be redeemed pursuant to this paragraph 6 in the
manner described in the Indenture.
8 Selection and Notice of Redemption. Notice of
redemption will be mailed at least twenty (20) but not more than
sixty (60) days before the redemption date to each holder of
Securities to be redeemed at his registered address. Securities
in denominations larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000. On and after the redemption
date, interest ceases to accrue on Securities or portions thereof
called for redemption.
9 Conversion. A holder of a Security may convert it into
Common Stock of the Company at any time, subject to prior
redemption. If the Security is called for redemption, the holder
may convert it at any time before the close of business on the
fifth business day prior to the redemption date. The initial
conversion price shall be equal to $3.00 per share of Common
Stock, subject to adjustment in certain events. To determine the
number of shares issuable upon conversion of a Security, divide
the principal amount to be converted by the conversion price in
effect on the conversion date. On conversion, no payment or
adjustment for interest will be made. The Company will deliver a
check for any fractional share.
To convert a Security a holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender the
Security to a Conversion Agent, (3) furnish appropriate
endorsements and transfer documents if required by the Registrar
or Conversion Agent, and (4) pay any transfer or similar tax if
required. A holder may convert a portion of a Security if the
portion is $1,000 or an integral multiple of $1,000.
The conversion price is subject to adjustment as set forth in
the Indenture upon the occurrence of certain events, including:
(i) the issuance of stock of the Company as a dividend or
distribution on any shares of the Common Stock; (ii)
subdivisions, combinations and certain reclassifications of the
Common Stock; (iii) the issuance to all holders of Common Stock
of certain rights or warrants entitling them to subscribe for or
purchase Common Stock at less than the then current market price
(as determined in the manner set forth in the Indenture); (iv)
the distribution to all holders of Common Stock of any shares of
capital stock of the Company (other than the Common Stock),
evidences of indebtedness of the Company or other assets
(including securities, but excluding any rights or warrants
referred to above, excluding any dividend or distribution paid in
cash out of earned surplus of the Company); (v) the distribution
to all holders of Common Stock of cash in the aggregate amount of
such cash distribution; (vi) the issuance of shares of Common
Stock for less consideration than the current market price; and
(vii) the issuance of securities convertible into or exchangeable
for shares of Common Stock (other than pursuant to transactions
described above and with certain exceptions) for a consideration
per share of Common Stock deliverable on such conversion or
exchange that is less than the current market price of the Common
Stock on the date of issuance of such security.
No adjustment in the conversion price will be required unless
such adjustment would require a change of at least 1% in the
price then in effect; but any adjustment that would otherwise be
required to be made shall be carried forward and taken into
account in any subsequent adjustment.
The Company from time to time may voluntarily reduce the
conversion price for a period of time, provided that the
conversion price is not less than the par value of a share of
Common Stock.
If the Company consolidates or merges into or sells, leases,
transfers or otherwise disposes of all or substantially all of
its assets, the Securities will become convertible into the kind
and amount of Securities, cash or other assets which the holders
of the Securities would have owned immediately after the
transaction if the holders had converted the Securities
immediately before the effective date of the transaction at the
conversion price in effect immediately prior to such effective
date.
10 Sinking Fund. The Securities will be redeemable through
the operation of a sinking fund beginning on January 15, 2001,
and on January 15 in each year thereafter to and including
January 15, 2004, upon not less than 20 days' notice mailed to
each holder of the Securities to be redeemed at the holder's
registered address, at a sinking fund redemption price equal to
100% of the face amount of the Securities plus accrued and unpaid
interest to the date fixed for redemption (subject to the right
of holders of record on the relevant record date to receive
interest due on an interest payment date that is prior to the
date fixed for redemption). Prior to January 15 of each of the
years from 2001 to 2004, inclusive, the Company will pay to the
Trustee, for a sinking fund payment, cash sufficient to redeem on
such date fixed for redemption, 20% of the aggregate principal
amount of the issued Securities annually, sufficient to retire
80% of the issued Securities prior to maturity, provided that
Securities converted pursuant to the Indenture or reacquired or
redeemed by the Company (other than Securities redeemed through
the sinking fund) may be used, at the principal amount thereof,
to reduce the amount of any sinking fund payment. Cash payments
for the sinking fund are to be applied to redeem Securities.
11 Subordination. The Securities are subordinated and
subject in right of payment to the prior payment in full of all
Senior Indebtedness (as defined in the Indenture). To the extent
provided in the Indenture, Senior Indebtedness must be paid
before the Securities may be paid. The Company agrees, and each
Securityholder by accepting a Security agrees, to the
subordination and authorizes the Trustee to give it effect. The
indebtedness evidenced by the Securities rank senior to all
Indebtedness of the Company or any subsidiary, other than (i)
Senior Indebtedness, (ii) debt incurred by the Company in the
ordinary course of business, or (iii) capitalized lease
obligations or letters of credit to finance trade payables, in
each case only as incurred in the ordinary course of business.
12 Denominations, Transfer, Exchange. The Securities are
in registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. A holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may
require a holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar
need not transfer or exchange any Security or portion of a
Security selected for redemption, or transfer or exchange any
Security for a period of 15 days before a selection of Securities
to be redeemed.
13 Persons Deemed Owners. The registered holder of a
Security may be treated as the owner of it for all purposes.
14 Unclaimed Money. If money for the payment of principal,
premium, if any, or interest on the Securities remains unclaimed
for two years, the Trustee or Paying Agent will pay the money
back to the Company at its request. After that, holders entitled
to any of such money must look to the Company for payment as
general creditors unless an "abandoned property" law designates
another person.
15 Amendment, Supplement, Waiver. Subject to certain
exceptions, the Indenture or the Securities may be amended or
supplemented with the consent of the holders of at least a
majority in principal amount of the outstanding Securities and
any past default or compliance with any provision may be waived
with the consent of the holders of a majority in principal amount
of the outstanding Securities. Without the consent of any
Securityholder, the Company may amend or supplement the Indenture
or the Securities to, among other things, cure any ambiguity,
omission, defect or inconsistency or to provide for
uncertificated Securities in addition to certificated Securities
or to make any change that does not adversely affect the rights
of any Securityholder.
16 Successor Corporation. When a successor corporation
assumes all the obligations of its predecessor under the
Securities and the Indenture and if immediately thereafter no
Default or Event of Default exists, the predecessor corporation
will be released from those obligations.
17 Defaults and Remedies. An Event of Default is:
(i) failure of the Company to pay interest on any
Security for 10 days, (ii) failure of the Company to pay
any principal installment when due and payable, (iii)
default in the deposit of any sinking fund payment when
and as due, (iv) failure by the Company for 30 days
after written notice to the Company by the Trustee or to
the Company and the Trustee by the holders of 25% in
principal amount of the outstanding Securities, to
comply with any of its other agreements and covenants in
the Indenture and the Securities; (v) certain defaults
under and accelerations prior to maturity of other
indebtedness; (vi) certain final judgments against the
Company or any subsidiary in an amount in excess of
$100,000, which remains undischarged and unpaid or
unstayed for a period of 30 days after the date on which
the right to appeal has expired; (vii) certain events of
bankruptcy, insolvency or reorganization, and (viii)
suspension or termination of the Company's reporting
obligations pursuant to Sections 13 and 15(d) of the
Securities Exchange Act of 1934, as amended.
The Indenture provides that the Trustee will, within 30 days
after the occurrence of a Default, give the Securityholders
notice of all uncured Defaults known to it (the term "Default" to
include the events specified above, without grace or notice),
provided that, except in the case of default in the payment of
principal of or interest on any of the Securities, or failure to
make a required sinking fund deposit or a redemption payment
pursuant to Article III of the Indenture, the Trustee shall be
protected in withholding such notice if it in good faith
determines that the withholding of such notice is in the interest
of the Securityholders.
In case an Event of Default occurs and is continuing, the
Trustee or the holders of not less than 25% in aggregate
principal amount of the Securities then outstanding, by notice in
writing to the Company (and to the Trustee if given by the
Securityholders), may declare to be due and payable the principal
amount of the Securities then outstanding plus accrued interest
to the date of acceleration, and upon any such declaration the
same shall become and shall be immediately due and payable.
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or
the Securities.
Such declaration may be rescinded by holders of a majority in
principal amount of outstanding Securities if all existing Events
of Default have been cured and waived (except nonpayment of
principal or interest on Securities then outstanding that has
become due solely because of the acceleration) and if the
rescission would not conflict with any judgment or decree.
Defaults (except, unless theretofore cured, a default in
payment of principal of or interest on the Securities or a
default with respect to a provision which cannot be modified
under the terms of the Indenture without the consent of each
Security affected) may be waived by the holders of a majority in
principal amount of outstanding Securities upon the conditions
provided in the Indenture.
Upon the occurrence of an Event of Default, the holders of a
majority in principal amount of the outstanding Securities may
select a person to serve as director of the Company until the
Event of Default is cured.
The Indenture requires the Company to file periodic reports
with the Trustee as to the absence of defaults.
18 Discharge of Indenture. The Indenture will be
discharged and cancelled, except for certain Sections thereof,
subject to the terms of the Indenture, upon the payment of all
the Securities or upon the irrevocable deposit with the Trustee
or Paying Agent of money sufficient for such payment or
redemption.
19 Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the
Company or its affiliates, and may otherwise deal with the
Company or its affiliates, as if it were not Trustee.
20 No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have
any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect
of or by reason of, such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the
consideration for the issue of the Securities.
21 Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
22 Abbreviations. Customary abbreviations may be used in
the name of a Securityholder or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties),
J TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= custodian), and U/G/MA (= Uniform
Gifts to Minors Act).
The Company will furnish to any Securityholder upon written
request and without charge a copy of the Indenture. Requests may
be made to: President, Travel Ports of America, Inc., 3495
Winton Place, Building C, Rochester, New York 14623.
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in
the form below and have your signature guaranteed:
I or we assign and transfer this Security to
_________________________________________________________________
_________________________________________________________________
(Insert assignee's social security or tax I.D. number)
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint
_________________________________________________________________
agent to transfer this Security on the books of Travel Ports of
America, Inc. The agent may substitute another to act for him.
Date: _____________ Your Signature: __________________________
(Sign exactly as your name appears on the other side of this
Security).
Signature Guarantee:* ___________________________________________
CONVERSION NOTICE
To convert this Security into Common Stock of
Travel Ports of America, Inc., check the line below:
______
To convert only part of this Security, state the
principal amount to be converted:
$__________________
If you want the stock certificate made out in another person's
name, fill in the form below:
(Insert other person's soc. sec. or tax I.D. no.)
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Print or type other person's name, address and zip code).
Date: _____________ Your Signature: __________________________
(Sign exactly as your name appears on the other side of this
Security).
Signature Guarantee:* __________________________________________
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
1.01. Definitions. 1
1.02. Other Definitions. 4
1.03. Rules of Construction. 5
ARTICLE II.
THE SECURITIES
2.01. Form and Dating. 5
2.02. Execution and Authentication. 6
2.03. Registrar, Paying Agent and Conversion Agent. 6
2.04. Paying Agent to Hold Money in Trust. 7
2.05. Securityholder Lists. 7
2.06. Transfer and Exchange. 7
2.07. Replacement Securities. 8
2.08. Outstanding Securities. 8
2.09. Treasury Securities. 8
2.10. Temporary Securities. 9
2.11. Cancellation. 9
2.12. Payment of Interest; Interest Rights Preserved. 9
2.13. Legending of the Securities; Restriction on Transfer. 11
2.14. Notification Regarding Restricted Securities. 11
2.15. CUSIP Numbers. 11
ARTICLE III.
REDEMPTION
3.01. Election to Redeem; Notice to Trustee. 12
3.02. Selection by Trustee of Securities to be Redeemed. 12
3.03. Notice of Redemption. 12
3.04. Effect of Notice of Redemption. 13
3.05. Deposit of Redemption Price. 13
3.06. Securities Redeemed in Part. 14
3.07. Accelerated Redemption Provision. 14
ARTICLE IV.
COVENANTS
4.01. Payment of Securities. 15
4.02. SEC Reports. 15
4.03. Compliance Certificate. 16
4.04. Usury Laws. 16
4.05. Investment Company Act. 16
4.06. Dividend and Payment Restrictions Affecting
Subsidiaries. 17
4.07. Restriction on Payment of Dividends and Stock
Repurchases. 17
4.08. Restriction on Transfer With Affiliates. 19
4.09. Incurrence of Indebtedness. 19
4.10. Plan of Liquidation. 20
4.11. Money for Security Payments to Be Held in Trust. 22
4.12. Continued Existence. 23
4.13. Maintenance of Properties, Etc. 23
4.14. Taxes. 23
ARTICLE V.
SUCCESSOR CORPORATION
5.01. When Company May Merge, Etc. 24
ARTICLE VI.
DEFAULTS AND REMEDIES
6.01. Events of Default. 25
6.02. Acceleration. 27
6.03. Other Remedies. 28
6.04. Waiver of Past Defaults. 29
6.05. Control by Majority. 29
6.06. Limitation on Suits. 29
6.07. Rights of Holders to Receive Payment. 30
6.08. Collection Suit by Trustee. 30
6.09. Trustee May File Proofs of Claim. 30
6.10. Priorities. 31
6.11. Undertaking for Costs; Notice of Proceedings. 32
ARTICLE VII.
TRUSTEE
7.01. Duties of Trustee. 32
7.02. Rights of Trustee. 34
7.03. Individual Rights of Trustee. 35
7.04. Trustee's Disclaimer. 35
7.05. Notice of Defaults. 35
7.06. Compensation and Indemnity. 36
7.07. Replacement of Trustee. 36
7.08. Successor Trustee by Merger, Etc. 37
7.09. Eligibility; Disqualification. 38
ARTICLE VIII.
DISCHARGE OF INDENTURE
8.01. Termination of Company's Obligations. 38
8.02. Application of Trust Money. 39
8.03. Repayment to Company. 39
ARTICLE IX.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
9.01. Without Consent of Holders. 39
9.02. With Consent of Holders. 40
9.03. Revocation and Effect of Consents. 41
9.04. Notation on or Exchange of Securities. 41
9.05. Trustee to Sign Amendments, Etc. 41
ARTICLE X.
CONVERSION
10.01. Conversion Privilege. 42
10.02. Conversion Procedure. 42
10.03. Fractional Shares. 43
10.04. Taxes on Conversion. 43
10.05. Company to Provide Stock. 43
10.06. Adjustment for Change in Capital Stock 44
10.07. Adjustment for Rights Issue. 44
10.08. Adjustment for Other Distributions. 45
10.09 Adjustments for Common Stock Issue. 46
10.10. Adjustment for Convertible Securities Issue. 46
10.11. Current Market Price. 47
10.12. Consideration Received. 47
10.13. When Adjustment May be Deferred. 48
10.14. When No Adjustment Required. 48
10.15. Notice of Adjustment. 48
10.16. Voluntary Reduction. 48
10.17. Notice of Certain Transactions. 49
10.18. Reorganization of Company. 49
10.19. Company Determination Final. 50
10.20. Trustee's Disclaimer. 50
ARTICLE XI.
Subordination
11.01. Agreement to Subordinate. 50
11.02. Certain Definitions. 51
11.03. Liquidation; Dissolution; Bankruptcy. 51
11.04. Default on Senior Indebtedness. 52
11.05. Acceleration of Securities. 53
11.06. When Distribution Must Be Paid Over. 53
11.07. Notice by Company. 54
11.08. Subrogation. 54
11.09. Relative Rights. 54
11.10. Subordination May Not Be Impaired By Company. 54
11.11 Distribution or Notice to Representative. 54
11.12. Rights of the Trustee and Paying Agent. 55
11.13. Ranking of Securities. 55
ARTICLE XII.
SINKING FUND
12.01. Sinking Fund Payments. 55
12.02. Satisfaction of Sinking Fund Payments with Securities. 56
12.03. Redemption of Securities for Sinking Fund. 56
ARTICLE XIII.
MISCELLANEOUS
13.01. Notices; Reporting Date. 57
13.02. Communication by Holders with Other Holders. 58
13.03. Certificate and Opinion as to Conditions Precedent. 58
13.04. Statements Required in Certificate or Opinion. 58
13.05. When Treasury Securities Disregarded. 58
13.06. Rules by Trustee and Agents. 59
13.07. Legal Holidays. 59
13.08. Governing Law. 59
13.09. No Adverse Interpretation of Other Agreements. 59
13.10. No Recourse Against Others. 59
13.11. Successors. 59
13.12. Duplicate Originals. 59
13.13. Separability. 59
Exhibit A Form of Security A-1
EXHIBIT 4-d
VOID AFTER 5:00 P.M., NEW YORK TIME, ON JANUARY 15, 2005 OR IF
NOT A BUSINESS DAY, AS DEFINED HEREIN, AT 5:00 P.M., NEW YORK
TIME, ON THE NEXT FOLLOWING BUSINESS DAY.
WARRANT TO PURCHASE
________ Shares of Common
Stock
No. ____
WARRANT TO PURCHASE
COMMON STOCK
OF
TRAVEL PORTS OF AMERICA, INC.
TRANSFER RESTRICTED -- SEE SECTION 6.02
This certifies that, for good and valuable
consideration, ________________________, and his registered,
permitted assigns (collectively, the "Warrantholder"), is
entitled to purchase from TRAVEL PORTS OF AMERICA, INC., a New
York corporation (the "Company"), subject to the terms and
conditions hereof, at any time before 5:00 P.M., New York time,
on January 15, 2005, (or, if such day is not a business day, at
or before 5:00 P.M., New York time on the next following business
day), the number of fully paid and non-assessable shares of
Common Stock, par value $.01 per share, of the Company (the
"Common Stock") stated above at the exercise price of $3.60 per
share (the "Exercise Price"). The Exercise Price and the number
of shares purchasable hereunder are subject to adjustment as
provided in Article II hereof.
This Warrant is one of a series of identical Warrants
to purchase shares (the "Warrant Shares") of the Company's Common
Stock (subject to adjustment as provided herein), and is being
initially issued as part of private placements (the "Placements")
by the Company of its 8% Senior Subordinated Convertible
Debentures due January 15, 2005 (the "Debentures"). (This
Warrant and all other Warrants then outstanding sometimes
collectively the "Warrants".)
XIV.
Duration and Exercise of Warrant
1. : Duration of Warrant. Subject to the terms contained
herein, this Warrant may be exercised at any time before 5:00
P.M., New York time, on January 15, 2005 (the "Expiration Date"),
(or, if such day is not a business day, at or before 5:00 P.M.,
New York time, on the next following business day). If this
Warrant is not exercised at or before 5:00 P.M., New York time,
on the Expiration Date, it shall become void, and all rights
hereunder shall thereupon cease.
2. : Exercise of Warrant.
(1) The Warrantholder may exercise this Warrant, in whole or
in part, upon surrender of this Warrant with the Subscription
Form hereon duly executed, to the Company at its corporate office
at 3495 Winton Place, Building C, Rochester, New York 14623, or
to such office as duly designated by the Company to the
Warrantholder, together with the full Exercise Price for each
Warrant Share to be purchased (i) by tendering in lawful money of
the United States, or by certified check or bank draft payable in
United States Dollars to the order of the Company, or (ii) by
delivering to the Company duly endorsed Debentures in the
principal amount equal to such Exercise Price.
(2) Upon receipt of this Warrant with the Subscription Form
duly executed and accompanied by payment of the aggregate
Exercise Price for the Warrant Shares for which this Warrant is
then being exercised, the Company will cause to be issued
certificates for the total number of whole shares of Common Stock
for which this Warrant is being exercised (adjusted to reflect
the effect of the provisions contained in Article II hereof, if
any, and as provided in Section 4.04 hereof) in such
denominations as are required for delivery to the Warrantholder,
and the Company shall thereupon deliver such certificates to the
Warrantholder. If at the time this Warrant is exercised a
registration statement is not in effect to register under the
Securities Act, the Warrant Shares issuable upon exercise of this
Warrant, the Company may require the Warrantholder to make such
representations, and may place such legends on certificates
representing the Warrant Shares, as may be reasonably required in
the opinion of counsel to the Company to permit the Warrant
Shares to be issued without such registration.
(3) In case the Warrantholder shall exercise this Warrant
with respect to less than all of the Warrant Shares that may be
purchased under this Warrant, the Company will execute a new
warrant in the form of this Warrant for the balance of such
Warrant Shares and deliver such new warrant to the Warrantholder.
(4) The Company covenants and agrees that it will pay when
due and payable any and all stock transfer and similar taxes
which may be payable in respect of the issue of this Warrant or
in respect of the issue of any Warrant Shares. The Company shall
not, however, be required to pay any tax imposed on income or
gross receipts or any tax which may be payable in respect of any
transfer involved in the issuance or delivery of this Warrant or
at the time of surrender.
XV.
Adjustment of Warrant Shares Stock
Purchasable and of Exercise Price
The Exercise Price and the number and kind of Warrant
Shares shall be subject to adjustment from time to time upon the
happening of certain events as provided in this Article II.
1. : Mechanical Adjustments.
(1) While any of the Debentures are outstanding and there is
an event which would cause the adjustment of the conversion price
thereof pursuant to Article X of the Indenture, dated as of
January 24, 1995 between the Company and American Stock Transfer
& Trust Company, as Trustee, under which the Debentures were
issued, the applicable provisions of Article X shall apply to
this Warrant and shall be incorporated herein as though they are
a part of this Warrant for adjustment of the Warrant Shares
and/or the Exercise Price thereof.
(2) If at any time after all Debentures are retired the
Company shall (i) pay a dividend or make a distribution on its
shares of Common Stock in shares of Common Stock (other than cash
dividends or distributions out of surplus or earnings); (ii)
subdivide, reclassify or recapitalize its outstanding Common
Stock into a greater number of shares; or (iii) combine,
reclassify or recapitalize its outstanding Common Stock into a
smaller number of shares, the Exercise Price in effect at the
time of the record date of such subdivision, combination,
reclassification or recapitalization shall be proportionately
adjusted so that the Warrantholder shall be entitled to receive
the aggregate number and kind of shares which, if this Warrant
had been exercised in full immediately prior to such time, he
would have owned upon such exercise and been entitled to receive
upon such dividend, subdivision, combination, reclassification or
recapitalization. Such adjustment shall be made successively
whenever any event listed in this Section 2.01(b) shall occur,
subject to Section 2.01(g) hereof.
(3) If at any time after all Debentures are retired the
Company shall issue rights, options or warrants to all holders of
its outstanding Common Stock, without charge to such holders,
entitling them to subscribe for or purchase shares of Common
Stock (or Common Stock Equivalents) at a price (or having a
conversion price per share) less than the current market price of
the Common Stock (as determined pursuant to paragraph (f) of this
Section 2.01) on the record date described below, the Exercise
Price shall be adjusted so that the Exercise Price shall equal
the price determined by multiplying the Exercise Price in effect
immediately prior to the date of such sale or issuance (which
date in the event of distribution to shareholders shall be deemed
to be the record date set by the Company to determine
shareholders entitled to participate in such distribution) by a
fraction, the numerator of which shall be (i) the number of
shares of Common Stock outstanding on the date of such sale or
issuance, plus (ii) the number of additional shares of Common
Stock which the aggregate consideration received by the Company
upon such issuance or sale (plus the aggregate of any additional
amount to be received by the Company upon the exercise of such
rights or warrants) would purchase at such current market price
per share of the Common Stock; and the denominator of which shall
be (i) the number of shares of Common Stock outstanding on the
date of such issuance or sale, plus (ii) the number of additional
shares of Common Stock offered for subscription or purchase (or
into which the Common Stock Equivalents so offered are
convertible). Shares of Common Stock owned by or held for the
benefit of the Company shall not be deemed outstanding for the
purpose of such computation. Such adjustments shall be made
successively whenever such warrants or rights are issued. To the
extent that shares of Common Stock are not delivered (or Common
Stock Equivalents are not delivered) after the expiration of such
rights or warrants, the Exercise Price shall be readjusted to the
Exercise Price which would then be in effect had the adjustments
been made upon the issuance of such rights or warrants been made
upon the basis of delivery of only the number of shares of Common
Stock (or Common Stock Equivalents) actually delivered.
(4) If at any time after all Debentures are retired the
Company shall fix a record date for making a distribution to the
holders of Common Stock of assets or evidences of its
indebtedness (excluding cash dividends or distributions out of
earnings and dividends or distributions referred to in paragraph
(b) of this Section 2.01) or Common Stock subscription rights,
options or warrants for Common Stock or Common Stock Equivalents
(excluding those referred to in paragraph (c) of this
Section 2.01), then in each such case the Exercise Price in
effect after such record date shall be adjusted to the price
determined by multiplying the Exercise Price in effect
immediately prior thereto by a fraction, the numerator of which
shall be the total number of shares of Common Stock outstanding
multiplied by the current market price per share of Common Stock
(as defined in paragraph (f) of this Section 2.01), less the fair
market value (as determined by the Company's Board of Directors)
of said assets or evidences of indebtedness so distributed or of
such Common Stock subscription rights, options and warrants or of
such Common Stock Equivalents applicable to one share of Common
Stock, and the denominator of which shall be the total number of
shares of Common Stock outstanding multiplied by such current
market price per share of Common Stock. Such adjustment shall be
made successively whenever the record date for such distribution
is fixed and shall become effective immediately after such record
date. In the event that such distribution is not made, the
Exercise Price in effect shall forthwith be readjusted, effective
as of the date when the Board of Directors determines not to
distribute such assets.
(5) Whenever the Exercise Price payable upon exercise of each
Warrant is adjusted pursuant to paragraph (a), (b), (c) or (d) of
this Section 2.01, the Warrant Shares shall simultaneously be
adjusted by multiplying the number of Warrant Shares initially
issuable upon exercise of each Warrant by the Exercise Price in
effect on the date thereof and dividing the product so obtained
by the Exercise Price, as adjusted.
(6) For the purpose of any computation under paragraph (b),
(c) or (d) of this Section 2.01, the current market price per
share of Common Stock at any date shall be deemed to be the
average of the daily closing price for 20 consecutive trading
days commencing 30 trading days before such date. The closing
price for each day shall be the last sale price regular way or,
in case no such reported sales take place on such day, the
average of the last reported bid and asked prices regular way, in
either case on the principal national securities exchange on
which the Common Stock is admitted to trading or listed, or if
not listed or admitted to trading on such exchange, the
representative closing bid price as reported by NASDAQ, or other
similar organization if NASDAQ is no longer reporting such
information, or if not so available, the fair market price as
determined by the Board of Directors. A trading day shall be a
day on which there are regular transactions on the national
securities exchange or NASDAQ or other organization on which the
Common Stock is then traded.
(7) No adjustments in the Exercise Price shall be required
unless such adjustment would require an increase or decrease of
at least five cents ($.05) in such price; provided, however, that
any adjustments which by reason of this paragraph (g) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under
this Section 2.01 shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.
(8) In the event that at any time, as a result of any
adjustment made pursuant to of this Section 2.01, the
Warrantholder thereafter shall become entitled to receive any
shares of the Company, other than Common Stock, thereafter the
number of such other shares so receivable upon exercise of any
Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Stock contained in this
Section 2.01.
2. : Notice of Adjustment. Whenever the number of
Warrant Shares or the Exercise Price is adjusted as herein
provided, the Company shall prepare and deliver to the
Warrantholder a certificate signed by its Chairman of the Board,
President, any Vice President, Treasurer or Secretary, setting
forth the adjusted number of Warrant Shares purchasable upon the
exercise of this Warrant and the Exercise Price of such Shares
after such adjustment, setting forth a brief statement of the
facts requiring such adjustment and setting forth the computation
by which adjustment was made.
3. : No Adjustment for Dividends. Except as provided in
Section 2.01 of this Agreement, no adjustment in respect of any
cash dividends shall be made during the term of this Warrant or
upon the exercise of this Warrant.
4. : Form of Warrant After Adjustments. The form of this
Warrant need not be changed because of any adjustments in the
Exercise Price or the number or kind of the Warrant Shares, and
Warrants theretofore or thereafter issued may continue to express
the same price and number and kind of shares as are stated in
this Warrant, as initially issued.
5. : Preservation of Purchase Rights in Certain
Transactions.
(1) In case of any consolidation of the Company with or a
merger of the Company into another corporation or in case of any
sale or conveyance to another corporation of the property of the
Company as an entirety or substantially as an entirety, upon any
such consolidation, merger, sale or conveyance and the surviving
entity is a publicly traded company, the Company agrees that a
condition of such transaction shall be that the Company or such
successor or purchasing corporation, as the case may be, shall
execute with the Warrantholder an agreement granting the
Warrantholder the right until the Expiration Date, upon payment
of the Exercise Price in effect immediately prior to such action,
to receive upon exercise of this Warrant the kind and amount of
shares and other securities and property which he would have
owned or have been entitled to receive after the happening of
such consolidation, merger, sale or conveyance had this Warrant
been exercised immediately prior to such action. Such agreement
shall provide for adjustments, which shall be as nearly
equivalent as may be practicable to the adjustments provided for
in this Article II. The provisions of this Section 2.05 shall
similarly apply to successive consolidations, mergers, sales or
conveyances.
(2) In case of any consolidation of the Company with or a
merger of the Company into another corporation or in case of any
sale or conveyance to another corporation of the property of the
Company as an entirety or substantially as an entirety, upon any
such consolidation, merger, sale or conveyance and the surviving
entity is a non-publicly traded company, the Company agrees that
a condition of such transaction will be that the Company shall
mail to the Warrantholders at the earliest applicable time (and,
in any event, not less than 20 days before any record date or
other date set for definitive action) written notice of the
record date for such transaction to take place. Such notice
shall also set forth facts as shall indicate the effect of such
action (to the extent such effect may be known at the date of
such notice) on the Exercise Price of and the kind and amount of
the shares of stock and other securities and property deliverable
upon exercise of this Warrant.
XVI.
Registration of Warrants; Compliance with the Securities Act
1. : Piggyback Registration.
(1) Right to Include Warrant Shares. If at any time prior to
the Expiration Date the Company proposes to register any Common
Stock under the Securities Act on any form for the registration
of securities under such Act, whether or not for its own account
(other than a registration form relating to (i) a registration of
a stock option, stock purchase or compensation or incentive plan
or of stock issued or issuable pursuant to any such plan, or a
dividend investment plan; (ii) a registration of stock rights or
similar instruments, (iii) a registration of securities proposed
to be issued in exchange for securities or assets of, or in
connection with a merger or consolidation with, another
corporation; or (iv) a registration of securities proposed to be
issued in exchange for other securities of the Company) in a
manner which would permit registration of Warrant Shares for sale
to the public under the Securities Act (a "Piggyback
Registration"), it will at such time give prompt written notice
to the Warrantholder hereof and to all other holders of the
Warrants (collectively, the "Holders") of its intention to do so
and of such Holders' rights under this Section 3.01. Such rights
are referred to hereinafter as "Piggyback Registration Rights".
Upon the written request of any such Holder made within 20 days
after the giving of any such notice (which request shall specify
the number of Warrant Shares (such Shares hereinafter the
"Registrable Shares") intended to be included in the Registration
Statement by such Holder and the intended method of disposition
thereof), the Company will include in the Registration Statement
the Registrable Shares which the Company has been so requested to
register by the Holders thereof provided that the Company need
not include any such Registrable Shares in Registration
Statements filed after the Expiration Date.
(2) Withdrawal of Piggyback Registration by Company. If, any
time after giving written notice of its intention to register any
securities in a Piggyback Registration but prior to the effective
date of the related Registration Statement filed in connection
with such Piggyback Registration, the Company shall determine for
any reason not to register such securities, the Company will give
written notice of such determination to each Holder and thereupon
shall be relieved of its obligation to register any Registrable
Shares in connection with such Piggyback Registration.
(3) Piggyback Registration of Underwritten Public
Offerings. If a Piggyback Registration requested pursuant to
this Section 3.01 involves an underwritten offering, then, (i)
all Holders requesting to have their Registrable Shares included
in such Registration must sell their Registrable Shares to the
underwriters selected by the Company on the same terms and
conditions as apply to other selling shareholders; and (ii) any
Holder requesting to have his Registrable Shares included in such
Registration may elect in writing, not later than three (3)
Business Days prior to the effectiveness of the Registration
Statement not to have his Registrable Shares so included in
connection with such registration.
(4) Payment of Registration Expenses for Piggyback
Registration. The Company will pay all expenses in connection
with each registration of Registrable Shares requested pursuant
to a Piggyback Registration Right contained in this Section 3.01,
except for the fees and disbursements of any counsel retained by
the Holders of the Registrable Shares being so registered and
brokerage commissions for their sale of the Registrable Shares.
(5) Priority in Piggyback Registration. If a Piggyback
Registration involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion,
the number or kind of Registrable Shares requested to be included
in such Piggyback Registration would have a material adverse
effect on such offering, including a significant decrease in the
price at which such securities can be sold, then the Registrable
Shares to be offered for the accounts of Holders pursuant to a
Piggyback Registration Right shall be eliminated entirely or
reduced pro rata as to all requesting Holders on the basis of the
relative number of Registrable Shares to be included in such
offering to the amount recommended by such managing underwriter;
provided, however, that no securities may be offered in such
registration for the account of persons other than the Company by
virtue of their also having "piggyback" registration rights, or
otherwise, unless the Registrable Shares requested to be included
in such registration are so included on a pro rata basis (by
percentage of each class of securities) as to such other persons
holding "piggyback" rights and the Holders requesting
registration.
(6) Expiration of Piggyback Registration Rights. The
Piggyback Registration Rights shall survive the exercise of the
Warrant or the transactions or events pursuant to which such
Registrable Shares were issued, but all such rights will
terminate in all events two (2) years after the Expiration Date.
2. : Demand Registration.
(1) Request for Registration. Subject to the limitations set
forth below in this Section 3.02, any Holder or Holders who hold
in the aggregate fifty (50%) percent or more of the Warrants as
initially issued upon the Placements of the Debentures may after
February 1, 1996 from time to time but prior to two (2) years
after the Expiration Date make written requests for the
registration under the Securities Act of all or part of their
Registrable Shares (a "Demand Registration") and the Company
shall use its best efforts to effect such Demand Registration.
The Holders, as a group, shall be limited to one Demand
Registration and thereafter may not make any further written
requests for registration under this Section 3.02.
(2) Limitations on Demand Registration. The Company shall not
be required to effect a Demand Registration sooner than (i) for a
120 day period following the effective date of a registration
statement pertaining to an underwritten offering for the account
of the Company; (ii) if the Company, in its reasonable judgment,
determines that registration at the time requested by the Holders
would materially adversely affect the Company, by, among other
things, requiring disclosure of, any litigation or transactions
at an inopportune time, in which case the obligation of the
Company to register any Registrable Shares shall be delayed until
the reason for such adverse effect has ceased to exist; or (iii)
if the timing of the Demand Registration is such that a special
audit of the Company would be required in connection with the
preparation of financial statements for the registration.
3. : Registration Procedures. If and whenever the
Company is required to use its best efforts to effect or cause
the registration of any Registrable Shares under the Securities
Act as provided in this Article III, the Company will, as
expeditiously as practicable:
(1) notify the Holders of Registrable Shares and the managing
underwriters, if any, promptly, and (if requested by any such
Person) confirm such advice in writing, (i) when a Prospectus or
any Prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any post-
effective amendment, when the same has become effective; (ii) of
any request by the Securities and Exchange Commission (the "SEC")
for amendments or supplements to a Registration Statement or
related Prospectus or for additional information; (iii) of the
issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose; (iv) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of any of the Registrable Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose, and (v) of the happening of any event that
makes any statement made in the Registration Statement, the
Prospectus or any document incorporated therein by reference
untrue or which requires the making of any changes in the
Registration Statement or Prospectus so that they will not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading;
(2) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration
Statement at the earliest possible moment;
(3) if reasonably requested by the managing underwriters,
immediately incorporate in a Prospectus supplement or post-
effective amendment such information as the managing underwriters
believe (on advice of counsel) should be included therein as
required by applicable law relating to such sale of Registrable
Shares, including, without limitation, information with respect
to the purchase price being paid for the Registrable Shares by
such underwriters and with respect to any other terms of the
underwritten (or "best-efforts" underwritten) offering; and make
all required filings of such Prospectus supplement or post-
effective amendment as soon as notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment;
(4) furnish to each Holder of Registrable Shares and each
managing underwriter, without charge, at least one signed copy of
the Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, all
documents incorporated therein by reference and all exhibits
(including those incorporated by reference);
(5) deliver to each Holder of Registrable Shares and the
underwriters, if any, without charge, as many copies of the
Prospectus or Prospectuses (including each preliminary
Prospectus) and any amendment or supplement thereto as such
Persons may reasonably request; the Company consents to the use
of such Prospectus of any amendment or supplement thereto by each
of the Holders of Registrable Shares and the underwriters, if
any, in connection with the offering and sale of the Registrable
Shares covered by such Prospectus or any amendment or supplement
thereto;
(6) prior to any public offering of Registrable Shares,
cooperate with the selling Holders of Registrable Shares, the
underwriters, if any, and their respective counsel in connection
with the registration or qualification of such Registrable Shares
for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any seller or
underwriter reasonably requests in writing, keep each such
registration or qualification effective during the period such
Registration Statement is required to be kept effective and to
any and all other acts or things necessary or advisable to enable
the disposition in such jurisdictions of the Registrable Shares
covered by the applicable Registration Statement; provided that
the Company will not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or
to take any action which would subject the Company to general
service of process in any jurisdiction where it is not at the
time so subject;
(7) cooperate with the Holders of Registrable Shares and the
managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Shares to be sold and not bearing any restrictive legends; and
enable such Registrable Shares to be in such denominations and
registered in such names as the managing underwriters may request
at least two business days prior to any sale of Registrable
Securities to the underwriters;
(8) upon the occurrence of any event contemplated by paragraph
(a)(v) above, prepare a supplement or post-effective amendment to
the applicable Registration Statement or related Prospectus or
any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the
purchasers of the Registrable Shares being sold thereunder, such
Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein not misleading;
(9) except as otherwise provided in this Agreement, the
Company shall have sole control in connection with the
preparation, filing, withdrawal, amendment or supplementing of
each Registration Statement, the selection of underwriters, and
the distribution of any preliminary prospectus included in the
Registration Statement, and may include within the coverage
thereof additional shares of Common Stock or other securities for
its own account or for the account of one or more of its other
security holders;
(10) holders of Registrable Shares shall have no registration
rights hereunder in respect of any proposed transfer of such
securities if, in the opinion of recognized securities counsel to
the Company (A) registration under the Securities Act is not
required for the transfer of the Registrable Shares in the manner
provided by such Holder and that there are no further Securities
Act resale restrictions on the Registrable Shares or (B) a post-
effective amendment to an existing registration statement would
be legally sufficient for such transfer.
4. : Obligation of Holders.
(1) The Company may require each seller of Registrable Shares
as to which any registration is being effected pursuant to this
Article III to furnish to the Company such information regarding
the distribution of such securities and such other information as
may otherwise be required by the Securities Act to be included in
such Registration Statement, as the Company may from time to time
reasonably request in writing.
(2) Each Holder of Registrable Shares agrees that, upon
receipt of any notice from the Company of the happening of any
event of the kind described in Section 3.03(a) hereof, such
Holder will forthwith discontinue disposition of such Registrable
Shares covered by such Registration Statement or Prospectus until
such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3.03(h) hereof, or
until it is advised in writing by the Company that the use of the
applicable Prospectus may be resumed, and has received copies of
any additional or supplemental filings which are incorporated by
reference in such Prospectus, and, if so directed by the Company,
such holder will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such
Registrable Shares current at the time of receipt of such notice.
5. : Indemnification. (a) The Company agrees to
indemnify and hold harmless each Holder of Registrable Shares
from and against any losses, claims, damages or liabilities to
which such Holder may become subject (under the Securities Act or
otherwise) insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arise out of, or
are based upon, any untrue statement of a material fact contained
in the Registration Statement, or arise out of any failure by the
Company to fulfill any undertaking included in the Registration
Statement and the Company will reimburse such Holder for any
reasonable legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action,
proceeding or claim; provided, however, that the Company shall
not be liable in any such case to the extent that such loss,
claim, damage or liability arises out of, or is based upon, an
untrue statement made in such Registration Statement in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of such Holder specifically for use in
preparation of the Registration Statement, or the failure of such
Holder to comply with the covenants and agreements contained in
Section 3.04 hereof respecting sale of his Registrable Shares or
any statement or omission in any Prospectus that is corrected in
any subsequent Prospectus that was delivered to the Holder prior
to the pertinent sale or sales by the Holder.
(1) Each Holder of Registrable Shares agrees to indemnify and
hold harmless the Company (and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities
Act, each officer of the Company who signs the Registration
Statement and each director of the Company) from and against any
losses, claims, damages or liabilities to which the Company (or
any such officer, director or controlling person) may become
subject (under the Securities Act or otherwise), insofar as such
losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) arise out of, or are based upon any failure
by the Holder to comply with the covenants and agreements
contained in Section 3.04 hereof respecting sale of his
Registrable Shares, or any untrue statement of a material fact
contained in the Registration Statement if such untrue statement
was made in reliance upon and in conformity with written
information furnished by or on behalf of the Holder specifically
for use in the Registration Statement and the Holder will
reimburse the Company for any reasonable legal or other expenses
reasonably incurred in investigating, defending or preparing to
defend any such action, proceeding or claim; provided, however,
that such Holder shall not be liable in any such case to the
extent that he has furnished in writing to the Company prior to
his sale information expressly for use in such Registration
Statement which corrected or made not misleading information
previously furnished to the Company. In no event shall the
liability of the Holder hereunder be greater in an amount than
the dollar amount of the proceeds received by such Holder upon
the sale of the Registrable Shares giving rise to such
indemnification obligation.
(2) Promptly after receipt by any indemnified person of a
notice of a claim or the beginning of any action in respect of
which indemnity is to be sought against an indemnifying person
pursuant to this Section 3.05, such indemnified person shall
notify the indemnifying person in writing of such claim or of the
commencement of such action; provided, however, that any failure
by an indemnified person to notify an indemnifying person shall
not relieve the indemnifying person from its obligations
hereunder except to the extent that the indemnifying person is
prejudiced thereby. Subject to the provisions hereinafter
stated, in case any such action shall be brought against an
indemnified person and such indemnifying person shall have been
notified thereof, such indemnifying person shall be entitled to
participate therein, and, to the extent it shall wish, to assume
the defense thereof, with counsel reasonably satisfactory to such
indemnified person. After notice from the indemnifying person to
such indemnified person of its election to assume the defense
thereof, such indemnifying person shall not be liable to such
indemnified person for any legal expenses subsequently incurred
by such indemnified person in connection with the defense
thereof, provided, however, that if there exists or shall exist a
conflict of interest that would make it inappropriate, in the
opinion of counsel to the indemnified person, for the same
counsel to represent both the indemnified person and such
indemnifying person or any affiliate or associate thereof, the
indemnified person shall be entitled to retain its own counsel at
the expense of such indemnifying person; provided, however, that
no indemnifying person shall be responsible for the fees and
expenses of more than one separate counsel for all indemnified
parties hereunder.
(3) If the indemnification provided for in this Section 3.05
from the indemnifying person would be applicable but is otherwise
unavailable, as determined by a court of applicable jurisdiction,
to an indemnified person hereunder in respect of any losses,
claims, damages, liabilities or expenses referred to herein, then
the indemnifying person, in lieu of indemnifying such indemnified
person, shall contribute to the amount paid or payable by such
indemnified person as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying person and
indemnified persons in connection with the action which resulted
in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative
fault of such indemnifying person and indemnified persons shall
be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue
statement of a material fact, has been made by, or relates to
information supplied by, such indemnifying person or indemnified
persons, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action.
The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall
be deemed to include, subject to the limitations set forth in
this Section 3.05, any reasonable legal or other fees or expenses
reasonably incurred by such party in connection with any
investigation or proceeding.
(4) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 3.05 were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 3.05,
the Warrantholder shall not be required to contribute any amount
in excess of the dollar amount of the proceeds received by such
Warrantholder upon the sale of the Warrant Shares giving rise to
such contribution obligation. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribute from any person
who was not guilty of such fraudulent misrepresentation.
XVII.
Other Provisions Relating
to Rights of Warrantholder
1. : No Rights as Shareholders; Notice to Warrantholders.
Nothing contained in this Warrant shall be construed as
conferring upon the Warrantholder or his transferees the right
to vote or to receive dividends or to consent or to receive
notice as a shareholder in respect of any meeting of shareholders
for the election of directors of the Company or of any other
matter or any rights whatsoever as shareholders of the Company,
except to the extent specifically provided for herein.
2. : Lost, Stolen, Mutilated or Destroyed Warrants. If
this Warrant is lost, stolen, mutilated or destroyed, the Company
may, on such terms as to indemnity or otherwise as it may in its
discretion impose (which shall, in the case of a mutilated
Warrant, include the surrender thereof), issue a new Warrant of
like denomination and tenor as, and in substitution for, this
Warrant.
3. : Reservation of Shares.
(1) The Company covenants and agrees that at all times it
shall reserve and keep available for the exercise of this Warrant
such number of authorized shares of Common Stock or other
securities as are sufficient to permit the exercise in full of
this Warrant.
(2) The Company shall use its best efforts to maintain or
secure the listing of the Warrant Shares upon the securities
exchange or automated quotation system, if any, upon which shares
of its Common Stock are then listed.
(3) The Company covenants that all shares of Common Stock
issued on exercise of this Warrant will be validly issued, fully
paid, non-assessable and free of preemptive rights.
4. : No Fractional Shares. Anything contained herein to
the contrary notwithstanding, the Company shall not be required
to issue any fraction of a share in connection with the exercise
of this Warrant. In any case where the Warrantholder would,
except for the provisions of this Section 4.04, be entitled under
the terms of this Warrant to receive a fraction of a share upon
exercise of this Warrant and receipt of the Exercise Price, the
Company shall not be required to issue the larger number of whole
shares purchasable upon exercise of this Warrant, nor shall it be
required to make any cash or other adjustment in respect of such
fraction of a share to which the Warrantholder would otherwise be
entitled.
XVIII.
Treatment of Warrantholder
Prior to due presentment for registration or transfer
of this Warrant, the Company may deem and treat the Warrantholder
as the absolute owner of this Warrant (notwithstanding any
notation of ownership or other writing hereon) for the purpose of
any exercise hereof and for all other purposes of the Company
shall not be affected by any notice to the contrary.
XIX.
Split-Up, Combination,
Exchange and Transfer of Warrants
1. : Split-Up, Combination, Exchange and Transfer of
Warrants. Subject to and limited by the provisions of
Section 6.02 hereof, this Warrant may be split up, combined or
exchanged for another Warrant or Warrants containing the same
terms to purchase a like aggregate number of Warrant Shares. If
the Warrantholder desires to split up, combine or exchange this
Warrant, he shall make such request in writing delivered to the
Company and shall surrender to the Company this Warrant and any
other Warrants to be so split up, combined or exchanged. Upon
any such surrender for a split-up, combination or exchange, the
Company shall execute and deliver to the person entitled thereto
a Warrant or Warrants, as the case may be, as so requested. The
Company shall not be required to effect any split-up, combination
or exchange which will result in the issuance of a Warrant
entitling the Warrantholder to purchase upon exercise a fraction
of a share of Common Stock or a fractional Warrant. The Company
may require such Warrantholder to pay a sum sufficient to cover
any tax or governmental charge that may be imposed in connection
with any split-up, combination or exchange of Warrants.
2. : Restrictions on Transfer. This Warrant may be
exercised and this Warrant and the Warrant Shares may not be
sold, hypothecated, assigned or transferred (a "Transfer"),
except only in accordance with and subject to the provisions of
the Securities Act and the rules and regulations promulgated
thereunder. The Warrantholder shall have the benefit of the
certain registration rights for the Warrant Shares as provided in
this Warrant.
XX.
Other Matters
1. : Successors and Assigns. All the covenants and
provisions of this Warrant shall be binding upon and inure to the
benefit of the Company and the Holders and their respective
successors and assigns.
2. : Amendments and Waivers. The provisions of this
Warrant, including the provisions of this sentence, may not be
amended, modified or supplemented, and waiver or consents to
departures from the provisions hereof may not be given unless the
Company has obtained the written consent of Holders of at least a
majority of the then outstanding Warrants of the series of which
this Warrant is a part. The Warrantholder shall be bound by any
consent authorized by this Section whether or not certificates
representing his Warrants have been marked to indicate such
consent. Whenever the consent or approval of Holders of a
specified percentage of Warrants is required hereunder, Warrants
held by the Company or its affiliates (other than the
Warrantholder or subsequent Holders if they are deemed to be such
affiliates solely by reason of their holdings of such Warrants)
shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
3. : Counterparts. This Warrant may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which so executed shall be deemed to be an
original and all of which taken together shall constitute one and
the same agreement.
4. : Governing Law. This Warrant shall be governed by
and construed in accordance with the laws of the State of New
York.
5. : Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in
any circumstances, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provisions in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
6. : Integration/Entire Agreement. This Warrant is
intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Warrant supersedes all
prior agreements and understandings between the parties with
respect to such subject matter.
7. : Notices. Notice or demand pursuant to this Warrant
to be given or made by the Warrantholder to or on the Company
shall be sufficiently given or made if sent by first class mail,
postage prepaid, to the Warrantholder at his last known address
as it shall appear on the books of the Company.
8. : Headings. The Article and Section headings herein
are for convenience only and are not part of this Warrant and
shall not affect the interpretation thereof.
IN WITNESS WHEREOF, this Warrant has been duly executed
by the Company under its corporate seal as of the 24th day of
January, 1995.
TRAVEL PORTS OF AMERICA, INC.
By: ________________________
(Corporate Seal)
ATTEST:
________________________________
ASSIGNMENT
(To be executed only upon assignment of Warrant Certificate)
For value received, ____________________________ hereby
sells, assigns and transfers unto ________________________ the
within Warrant Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint _____ ____________________ attorney, to transfer said
Warrant Certificate on the books of the within-named Company with
respect to the number of Warrants set forth below, with full
power of substitution in the premises:
Name(s) of
Assignee(s) Address No. of Warrants
And if said number of Warrants shall not be all the Warrants
represented by the Warrant Certificate, a new Warrant Certificate
is to be issued in the name of said undersigned for the balance
remaining of the Warrants represented by said Warrant
Certificate.
Dated: ________________, _____.
________________________________________
Note: The
above signature should correspond
exactly with the name on the face
of this Warrant Certificate.
SUBSCRIPTION FORM
(To be executed upon exercise of Warrant)
TRAVEL PORTS OF AMERICA, INC.
The undersigned hereby irrevocably elects to exercise the
right of purchase represented by the within Warrant Certificate
for, and to purchase thereunder, shares of Common
Stock, as provided for therein, and tenders herewith payment of
the purchase price in full in the form of (i) cash or a certified
or official bank check in the amount or (ii) duly endorsed
Debentures in the principal amount of $ .
Please issue a certificate or certificates for such Common
Shares in the name of, and pay any cash for any fractional share
to:
Name_______________________________
(Please
Print Name, Address and Social
Security No.)
Signature__________________________
_
Note: The
above signature should correspond
exactly with the name on the first
page of this Warrant Certificate or
with the name of the assignee
appearing in the assignment form
below.
And if said number of shares shall not be all the shares purchasable under the
within Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance remaining of the shares purchasable
thereunder less any fraction of a share paid in cash.
TRAVEL PORTS OF AMERICA, INC.
$5,000,000
8% Senior Subordinated Convertible Debentures
Due January 15, 2005
___________________________
Indenture
Dated as of January 24, 1995
AMERICAN STOCK TRANSFER & TRUST COMPANY
Trustee
EXHIBIT 99
TRAVEL PORTS OF AMERICA, INC.
TRAVEL PORTS RAISES $4.65 MILLION FROM
SALE OF CONVERTIBLE DEBENTURES
Rochester, New York, February 17, 1995 /PRNewswire/ Travel
Ports of America, Inc. (NASDAQ: TPOA) today announced the
completion of a private placement resulting in the sale of $4.65
million of its Convertible Senior Subordinated Debentures due
January 15, 2005, together with warrants to purchase additional
shares of the Companys Common Stock.
The debentures carry an annual interest rate of 8.5%,
payable quarterly, and are convertible into the Companys Common
Stock at a price equal to $3.00 per share or a rate of 333.33
shares per $1,000 of principal amount of debentures, at the
option of the holder at any time.
The debentures are callable at the discretion of the Company
after January 15, 1998, at a redemption price equal to 109% as of
January 15, 1998, and gradually decreasing to 100% at maturity on
January 15, 2005.
The warrants, which are exercisable at any time, entitle
warrant holders to purchase up to a total of 15,500 shares of the
Companys Common Stock at a price of $3.60 per share.
The securities were sold in a private placement under
Regulation D of the U.S. Securities Act of 1933 and in offshore
transactions under Regulation S of the Act. The securities have
not been registered under the Act and may not be offered or sold
in the United States absent registration or an applicable
exemption from registration requirements.
John Holahan, Company President, said The net proceeds from
the sale will be used to increase the Companys working capital
and further future expansion.
Travel Ports, headquartered in Rochester, operates 15 travel
plazas in seven states (New York, New Jersey, Pennsylvania, New
Hampshire, North Carolina, South Carolina and Indiana).
/CONTACT: John M. Holahan or William Burslem III, Travel
Ports of America, Inc., 716-272-1810/(TPOA)
_______________________________
* Needed only if the stock certificate is to be registered
in a name other than that of the record holder.
* Needed only if the stock certificate is to be
registered in a name other than that of the record
holder.
