SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
November 4, 1997
Date of Report (Date of earliest event reported)
InaCom Corp.
(Exact name of registrant as specified in its charter)
Delaware 0-16114 47-0681813
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
10810 Farnam Drive, Suite 200, Omaha Nebraska 68154
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code
(402) 392-3900
<PAGE>
Item 5. OTHER EVENTS.
On November 4, 1997, InaCom Corp. (the "Company" or "Inacom") completed
the issuance and sale of 3,000,000 shares of common stock, par value $.10 per
share, and $75,000,000 of 4.50% Subordinated Convertible Debentures due November
1, 2004. The Debentures are convertible at any time into common stock at a
conversion rate of 25.2350 shares of common stock for each $1,000 principal
amount of the debentures (equivalent to a conversion price of $39.63 per share).
The net proceeds from the offering were approximately $165.7 million. Inacom has
granted the underwriters an over-allotment option for a period of up to 30 days
to purchase an additional 450,000 shares of common stock and up to $11.25
million of subordinated convertible debt.
The descriptions of the Company below contain certain forward-looking
statements and information relating to the Company that are based on the beliefs
of the Company's management as well as assumptions made by and information
currently available to the Company's management. Such statements reflect the
current view of the Company with respect to future events and are subject to
certain risks, uncertainties and assumptions, including factors described in
"Business Factors" below. Should one or more of these risks or uncertainties
materialize, or should underlying assumptions prove incorrect, actual results
may vary materially from those described herein as believed, estimated or
expected.
BUSINESS FACTORS
Dependence Upon Key Vendors
Inacom's business is dependent in large measure upon its relationship
with key vendors. A substantial portion of Inacom's computer products revenue is
derived from the sales of the products of key vendors, including Compaq, IBM and
Hewlett-Packard. Inacom derives a substantial portion of its communications
products and services revenue from the sale of Lucent Technologies products and
AT&T services. Although Inacom considers its relationships with its key vendors
to be good, there can be no assurance that these relationships will continue as
presently in effect or that changes in marketing approach by one or more such
key vendors and other suppliers would not adversely affect Inacom. Inacom's
agreements with these vendors are on a non-exclusive basis and may be terminated
by the vendors on notice typically ranging from 30 to 90 days. Termination of,
or a material change to, or a nonrenewal of Inacom's agreements with Compaq, IBM
and Hewlett-Packard, a material decrease in the level of marketing development
programs offered by computer vendors, or an insufficient or interrupted supply
of vendors' product would have a material adverse effect on Inacom's business.
Impact of Vendor Incentive Funds
The key vendors of Inacom provide various incentives for promoting and
marketing their product offerings. Funds or credits received by Inacom are based
either on the sales of the vendor's products through the independent reseller
and Inacom-owned channels, or on Inacom's purchases from the respective vendor.
The three major forms of vendor incentives received by Inacom are co-operative
funds, market development funds and vendor rebates. The funds or credits are
<PAGE>
earned through performance of specific marketing programs or upon completion of
objectives outlined by the vendors. These funds or credits from Inacom's primary
vendors typically range from 1% to 5% of purchases by Inacom. A material
decrease in the level of vendor incentive funding or credits would have a
material adverse effect on Inacom's business.
Inventory Management Risks
The personal computer industry is characterized by rapid product
improvement and technological change resulting in relatively short product life
cycles and rapid product obsolescence, which can place inventory at considerable
valuation risk. Inacom's information technology suppliers generally provide
price protection intended to reduce the risk of inventory devaluation. However,
many of these suppliers have announced plans to reduce the number of days for
which they will provide price protection. There can be no assurance that vendors
will continue such policies or that unforeseen new product developments and
related inventory obsolescence will not materially adversely affect Inacom's
business.
Build-to-Order Delivery Model
The system used by major manufacturers, such as IBM, Compaq and
Hewlett-Packard to deliver computer systems to business clients through
technology providers such as Inacom is changing from a build-to-forecast model
to a build-to-order model. The potential advantages to technology providers such
as Inacom from such a system -- reduced inventory requirements, improved margins
and market share gains -- involve potential disadvantages including a decrease
in the number of days of price protection available from the manufacturers and
the requirement that Inacom meet strict manufacturer final assembly
qualification standards. The failure of Inacom to meet the manufacturer
qualification standards, or the inability of Inacom to manage its inventory to
levels to meet client demands and within the manufacturer's price protection
limits, could have a material adverse effect on Inacom's business.
Dependence Upon Key Management and Technical Personnel
Inacom's success depends to a significant extent on its ability to
attract and retain key personnel. Inacom is particularly dependent on its senior
management team and technical personnel. Inacom's strategy for growth in the
sale of
<PAGE>
computer services and communication services depends on its ability to attract
and retain qualified technical personnel, including systems engineers and
communications specialists. Competition for technical personnel is intense and
no assurance can be given that Inacom will be able to recruit and retain such
personnel. The failure to recruit and retain senior management and technical
personnel could have a material adverse effect on Inacom's business.
Management of Expanding Operations and Increased Service Focus
The Company's growth resulting from expanding operations and its
increased focus on the complete life cycle technological needs of its business
clients places significant demands on the Company's management, operational and
technical resources. Such growth and increased life cycle service focus are
expected to continue to challenge the Company's sales, marketing, technical and
support personnel and senior management. The Company's future performance will
depend in part on its ability to manage expanding operations and to adapt its
operational systems to respond to changes in its business. In particular, the
Company's success will depend upon its key management and technical personnel.
The failure of the Company to effectively manage its growth and increased life
cycle service focus effectively or to train its technical field personnel could
have a material adverse effect on Inacom's business.
Funding Requirements; Interest Rate Sensitivity
Inacom's business requires significant working capital to finance
product inventory and accounts receivable. Inacom has funded its inventory and
working capital requirements through an inventory and working capital financing
agreement, a revolving credit facility and the public sale of debentures. The
borrowings under these agreements typically bear a floating rate of interest.
Due to the Company's significant working capital needs, an increase in interest
rates could have a material adverse effect on Inacom's results of operation.
There can be no assurance that sufficient equity or debt financing will be
available on terms acceptable to Inacom or that Inacom will be able to refinance
its existing indebtedness. The inability of Inacom to refinance its existing
indebtedness or to obtain a sufficient amount of alternative financing would
have a material adverse effect on Inacom's business.
Risks of Financial Leverage
The Company's business requires significant working capital and the
primary sources of such working capital are provided through an inventory and
working capital financing agreement, a revolving credit facility and the public
sale of debentures.
<PAGE>
The degree to which the Company is leveraged could have important consequences
to holders of the Common Stock, including the following: (i) the Company's
ability to obtain other financing in the future may be impaired; (ii) a
substantial portion of the Company's cash flow from operations must be dedicated
to the payment of principal and interest on its indebtedness; and (iii) a high
degree of leverage may make the Company more vulnerable to economic downturns
and may limit the ability to withstand competitive pressures. The Company's
ability to make scheduled payments on or, to the extent not restricted pursuant
to the terms thereof, to refinance its indebtedness depends on its financial and
operating performance, which is subject to prevailing economic conditions and to
financial, business and other factors beyond its control.
Competition
All aspects of the technology management services industry are highly
competitive. The technology management services industry continues to experience
a significant amount of consolidation. In the future Inacom may face fewer but
larger and better financed competitors as a consequence of such consolidation.
Inacom competes for potential clients, including national accounts, with
numerous resellers, distributors and service providers. Several computer
manufacturers have expanded their channels of delivery, pricing and product
positioning and compete with Inacom's marketing network for potential clients.
Other competitors operate mail-order or discount stores offering clones of major
vendor products. Inacom also competes with computer technology providers in the
recruitment and retention of franchisees and independently-owned resellers.
Inacom competes in the computer services division with a large number of service
providers, including IBM through its Global Services division, Andersen
Consulting, EDS, CompuCom Systems, ENTEX, GE Capital Technology Management
Services, IKON Office Solutions and Vanstar Corp. Competition in the
communications products and services industry is also intense, and includes
entities which are also significant vendors of Inacom, such as Lucent
Technologies and AT&T. Certain competitors and manufacturers are substantially
larger than Inacom and have greater financial, technical, service and marketing
resources. The level of future sales and earnings achieved by Inacom in any
period may be adversely affected by a number of competitive factors, including
an increase in direct sales by vendors to independent resellers and/or clients
and increased computer client preference for mail-order or discount store
purchases of clones of major vendor products.
Acquisitions
Inacom's strategy includes effecting acquisitions and strategic
relationships in selected geographic market and service
<PAGE>
areas. Acquisitions involve a number of special risks, including the
incorporation of acquired products and services into Inacom's offerings, the
potential loss of key employees of the acquired business, the valuation of the
acquired business, the incurrence of additional debt and the financial impact of
goodwill amortization. Inacom expects to issue equity securities to consummate
certain acquisitions, which may cause dilution to current stockholders. No
assurance can be given that Inacom will have adequate resources to consummate
acquisitions, integrate the acquired businesses or that any such acquisitions
will be successful in enhancing Inacom's business.
Dependence on Information Systems
The Company depends on a variety of information systems to provide it
with a competitive advantage. Although the Company has not in the past
experienced significant failures or down time of its proprietary procurement and
delivery system or any of its other information systems, any such failure or
significant down time could prevent the Company from taking orders and/or
shipping product and could prevent clients from accessing price and product
availability information from the Company. In such event, the Company could be
at a severe disadvantage in determining appropriate product pricing or the
adequacy of inventory levels or in reacting to rapidly changing market
conditions. A failure of the Company's information systems which impacts any of
these functions could have a material adverse effect on the Company's business.
In addition, the inability of the Company to attract and retain the
highly-skilled personnel required to implement, maintain, and operate its
centralized information processing system and the Company's other information
systems could have a material adverse effect on the Company's business.
Gross Margin Risks
Gross margins from the sale of computer products have declined over the
past several years as a result of computer product price reductions and intense
competition. Inacom has responded by reducing operating expenses as a percentage
of revenue and by focusing on sales of higher-margin computer services and
communication services. There can be no assurance that gross margins for
computer products will not continue to decline or that Inacom will be successful
in reducing operating expenses as a percentage of revenue. Furthermore, there
can be no assurance that gross margins for computer services and communications
services will not also decline or that Inacom will be able to continue to
successfully grow and compete in such service markets.
<PAGE>
BUSINESS
Inacom is a leading single source provider of information technology
products and technology management services designed to enhance the productivity
of information systems primarily for Fortune 1000 clients. The Company offers a
comprehensive range of value added services to manage the entire information
system life cycle including: (1) needs assessment and technology planning, (2)
technology procurement and configuration, (3) systems integration and systems
management, (4) ongoing systems support and distributed support, and (5) asset
management. Inacom's expertise includes the integration of voice and data
communications. Inacom sells its products and services through a marketing
network of 51 Company-owned business centers throughout the United States that
focus on serving large corporations. The Company also has a network of
approximately 1,000 value added resellers that typically have a regional,
industry, or specific product focus. The Company has international affiliations
in Europe, Asia, Central and South America, the Caribbean, Middle East, Africa,
Canada and Mexico to satisfy the technology management needs of its
multinational clients.
Inacom's expertise in procurement, configuration and delivery of PC's,
peripherals and software from a wide range of major vendors enables the Company
to customize information systems to meet specific client needs. In addition,
Inacom provides its clients with numerous benefits including in-depth product
knowledge and experience, competitive pricing from its purchasing arrangements
and a wide array of services supporting client needs on an on-going basis.
Life Cycle Management by the Company
As a single source provider of technology products and services, the
Company strives to help its clients optimize their information technology
investments and control ongoing costs throughout the life cycle of the clients'
technology systems. The Company combines a process improvement approach along
with
<PAGE>
tools and practices gained by experience and trained personnel to assist its
clients in managing the life cycle and costs of distributed technology.
Needs Assessment and Technology Planning. Technology planning services
involve assisting clients in designing and developing standardized technology
platforms. The services include determining standard hardware technology,
application software, operating system software and networking platforms. The
Company assists its clients with the selection and standardization of
manufacturer brands (such as IBM, Compaq, Hewlett-Packard, Microsoft, Lotus and
others) and assists its clients in studying the total cost, performance and
capabilities of these brands and products.
Technology planning services performed by the Company also include the
development of strategies for deployment of distributed technology systems
within its clients' businesses. The Company assists its clients in decisions to
lease or purchase, determining replacement cycles and centralizing acquisition
processes. To assist clients with technology planning, the Company has developed
specific products and programs such as Policy Based ManagementTM, Tactical
Enterprise Network AssessmentTM and Enterprise Technology BlueprintTM.
Technology Procurement and Configuration. Technology procurement and
configuration services generally involve coordinating the technology purchase
process, requisitioning technology products, processing, tracking and reporting
on the status of orders, customizing hardware and software configurations,
direct shipment and shipment tracking. The demand for cost-effective customized
technology systems has driven a significant change in industry procurement
methods including the trend toward build-to-order programs. Compaq, IBM and
Hewlett-Packard have chosen Inacom for participation in their build-to-order
programs. Inacom has invested over $42 million in its state-of-the-art assembly
and delivery systems to provide build-to-order capabilities. The facilities are
strategically located in Swedesboro, New Jersey, Omaha, Nebraska, and Ontario,
California to provide prompt and cost-effective delivery nationwide.
The Company also focuses its technology procurement services on
shortening the delivery time of technology products, improving compliance to
standards in its clients' organizations, assisting in negotiating hardware and
software agreements on behalf of its clients, and providing other services that
minimize its clients' costs. The Company provides certain clients with on-site
technical procurement specialists who assist and manage the technology
procurement process at client locations nationwide. These procurement
specialists are technically oriented and focus
<PAGE>
on process improvement and operational efficiencies in the
procurement process.
The Company's Inacommerce and Inacommerce PlusTM software provide an
easy to use internet-based procurement management system that allows a business
client to determine real-time product availability and order status along with a
custom configurator to assist the client in designing a technology solution from
its desktop computer. The Company's VISIONTM 2000 software also allows a
business client to determine daily product availability, custom configure and
order its technology solution. The Company's Direct Express delivery program
reduces the number of steps in the procurement process by shipping products
directly to the location selected by the business client.
Systems Integration and Systems Management. The Company provides
systems integration services to its clients in an effort to assist clients in
controlling costs and gaining control of the life cycle of its distributed
technology systems. The Company has products and services available to assist,
design and support clients' WANs and LANs and to manage software procurement and
license control. In addition, the Company can provide solutions to its clients
for data storage management, technology security management, capacity planning,
data and database management, and internet and intranet connectivity, support
and management.
The Company provides systems management services that assess the
current state and future needs of a client's distributed technology network to
maximize the value of the client's investment in its networked systems. The
systems management services provided through remote management centers assist
clients in the control and reliability of LAN/WAN environments, provide a study
of adequate network speed and responsive user services and monitor the
infrastructure and system capabilities to satisfy clients' current and future
needs.
The Company employs high-end technical systems engineers and systems
consultants who perform systems integration services at client locations. These
systems engineers and systems consultants, and the project managers who
coordinate their activities, are contracted to the client for hourly rates or
for fixed-price extended contracts.
The Company has developed specific products and programs to assist its
clients in the systems management function, including Inacom Network PatrolTM
and Inacom Network Baseline.TM
Ongoing Systems Support and Distributed Support. The Company provides
its clients ongoing support in their distributed technology systems primarily in
two major areas: "break/fix" hardware maintenance and installation, moves,
addition and changes ("IMACs"). These functions are similar, but differ in the
timing and level of service.
<PAGE>
The Company's break/fix hardware maintenance capabilities are supported
directly by the Company's help desk operation, HelpCentralTM. Centralized
break/fix hardware maintenance provides coordination, problem solving, tracking
and control of
the clients' hardware maintenance needs.
IMAC distributed support services are managed through various
scheduling and reporting tools that are interrelated with the Company's VISTATM,
VISIONTM, Inacommerce,TM and Inacommerce PlusTM information systems.
Additionally, the Company provides distributed support services to its clients
by providing on-site technical personnel that may be involved in various support
activities, including LAN administration, network monitoring, general deskside
support and some end-user training.
The Company also offers convergence solutions centered around wide area
data networks, computer and telephone integration, desktop video conferencing,
and wireless data communications. These services include specialized support
programs, maintenance programs and specialized software. The Company provides
communication network services with advanced digital capabilities enabling
voice, data and video communications, utilizing AT&T, Frontier and Westinghouse
networks. The Company's communications services also include long distance,
inbound 800 service, calling cards and teleconferencing featuring account codes
and enhanced billing and customized call reports which allow business clients to
restrict and track telecommunications activity.
Asset Management. Asset management services consist of
asset registration, tracking and disposal of technology assets as
they move throughout the client's organization.
The Company has developed a comprehensive program called Inacom Asset
AdvantageTM that contains tools and process improvement techniques to assist its
clients' inventory, track and control distributed technology assets. This
program helps clients meet financial, risk management, custodial, warranty,
maintenance, service and refreshment objectives. The products, including Inacom
Asset Roll-Call,TM can be integrated with HelpCentralTM and also integrated with
the other life cycle products and programs to help lower the total ownership
cost of clients' technology. Additionally, the Company's Computer Resources
International group and Boston Computer Exchange subsidiary provide customized
asset registry, asset tracking services and disposal services to its clients.
Marketing Network
At October 1, 1997, computer products and services were sold through a
marketing network of approximately 1,000 business centers located throughout the
United States, of which 51 are Company-owned. Communications products and
services are provided through a network of 18 direct sales offices and
contractual
<PAGE>
relationships with approximately 160 dealers. The Company has international
affiliations in Europe, Asia, Central and South America, the Caribbean, Middle
East, Africa, Canada and Mexico to satisfy the technology management needs of
its multinational clients.
The Company's direct sales force in the Company-owned business centers
enables the Company to establish relationships with major corporate clients for
purposes of marketing the Company's technology management services.
Products and Vendors
Computer products include microcomputers, workstations, servers,
monitors, printers and operating systems software. The Company currently
distributes computer products from leading vendors such as Compaq, IBM,
Hewlett-Packard, Toshiba, Lexmark, Novell, Microsoft, Oracle, 3Com, SynOptics,
Cisco, Intel and Network General. Compaq, IBM and Hewlett-Packard represented
greater than 65% and 63% of the Company's net revenues in fiscal 1996 and for
the first six months of 1997, respectively.
Communications products and services include phone systems, voice mail,
voice processing, data network equipment, multiple small office-home office
offerings and maintenance. The Company also offers network services including
long distance, 800 service, calling cards, wide area value-added data
networking, video conferencing and cellular communications. The products of
Lucent Technologies and the services of AT&T constitute approximately 90% of the
voice and data systems sold by the Company.
The Company has negotiated purchase arrangements, including price,
delivery, training and support, directly with most major vendors. The Company's
agreements with its vendors are generally on a non-exclusive basis and may be
terminated by the vendors on notice typically ranging from 30 to 90 days.
The agreements with vendors generally contain provisions with respect
to product cost, price protection, returns and product allocations; the Company
is entitled to price protection with all major vendors on eligible products in
the Company's inventory in the event of vendor price reductions. Certain vendors
also sponsor payment programs with several financial service organizations to
facilitate product sales through the business centers. In addition, the
Company's primary vendors provide various incentives for promoting and marketing
their products which typically range from 1% to 5% of purchases. The three major
forms of vendor incentives received by the Company are co-operative funds,
market development funds and vendor rebates. Co-operative funds are earned based
upon the sale of the vendor's products and generally must be utilized to offset
the costs associated with advertising and promotion pursuant to programs
established by the respective vendor. Market
<PAGE>
development funds are earned based upon the Company's purchases from the vendor
and generally must be used for market development activities approved by the
respective vendor. Vendor rebates are based upon the Company's attaining
purchase volume targets established with the vendor. Rebates generally can be
used at the Company's discretion.
International Capabilities
InaCom International, a subsidiary of the Company, has international
affiliations in Europe, Asia, Central and South America, the Caribbean, Middle
East, Africa, Canada and Mexico to satisfy the technology management needs of
its multinational clients. ICG, an affiliation of leading independent
organizations in various countries, provides pc-related products and services to
international corporate clients. Inacom's capabilities in international project
management and local resources of the affiliated members allow Inacom to serve
the global needs of its multinational clients' information technology projects.
Inacom Latin America, a 60% owned subsidiary of the Company, provides
international logistics and configuration services in Mexico, the Caribbean,
Central and South America.
Competition
All aspects of the technology management services industry are highly
competitive. The technology management industry continues to experience a
significant amount of consolidation. In the future Inacom may face fewer but
larger and better financed competitors as a consequence of such consolidation.
The Company's marketing network competes for potential clients, including
national accounts, with numerous resellers and distributors. Several computer
manufacturers have expanded their channels of distribution, pricing and product
positioning and compete with the Company's marketing network for potential
clients. Other competitors operate mail-order or discount stores offering clones
of major vendor products. The Company also competes with other computer
technology providers in the recruitment and retention of franchisees and
independently-owned resellers. The Company competes in the computer services
industry with a large number of service providers, including IBM through its
Global Services division, Andersen Consulting, CompuCom, EDS, ENTEX, GE Capital
Technology Management Service, IKON Offices Solutions and Vanstar. Competition
in communication products and services is also intense, and includes entities
which are also significant vendors of the Company, such as Lucent Technologies
and AT&T. Certain competitors and manufacturers are substantially larger than
the Company and have greater financial, technical, service and marketing
resources. The Company's marketing network competes primarily on the basis of
professionalism and client contact, quality of product line, availability of
products, service, after-sale support, price, and quality of end-user training.
<PAGE>
Service Mark and Trademark
The Company holds United States service mark and trademark
registrations for the marks "Inacom", "ValCom" and "Inacomp." The Company also
has certain state registrations. The Company claims common law rights to the
marks based on adoption and use. To the Company's knowledge, there are no
pending interference, opposition or cancellation proceedings, or litigation
threatened or claimed, with respect to the marks in any jurisdiction.
Government Regulation
The Company is subject to various federal, state and local laws and
regulations affecting businesses generally such as laws and regulations
concerning employment, workplace safety and protection of the environment. The
Company is also subject to federal and state laws regulating franchise
relationships which generally impose registration and/or disclosure requirements
on the Company in the offer and sale of franchises and also regulate related
advertisements. The Company believes it is in substantial compliance with all
such laws and regulations.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
Exhibit 4.1 Subordinated Indenture dated September 30, 1997
between the Company and Norwest Bank Minnesota,
National Association and the First Supplemental
Indenture thereto dated November 4, 1997.
Exhibit 4.2 First Supplemental Indenture dated November 4, 1997
to the Subordinated Indenture dated September 30,
1997 between the Company and Norwest Bank Minnesota,
National Association.
Exhibit 4.3 4.50% Subordinated Convertible Debenture, Due
November 1, 2004.
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
INACOM CORP.
November 4, 1997 /s/ David C. Guenthner
----------------------------
David C. Guenthner
Executive Vice President
and Chief Financial Officer
<PAGE>
INDEX TO EXHIBITS
Exhibit Description Page
4.1 Subordinated Indenture dated September 30, 1997 between
the Company and Northwest Bank Minnesota, National
Association.
4.2 First Supplemental Indenture dated November 4, 1997 to the
Subordinated Indenture dated September 30, 1997 between
the Company and Norwest Bank Minnesota, National Association.
4.3 4.50% Subordinated Convertible Debenture, Due November
1, 2004.
<PAGE>
Exhibit 4.1
INACOM CORP.
TO
NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
TRUSTEE
----------------
INDENTURE
Dated as of September 30, 1997
----------------
SUBORDINATED DEBT SECURITIES
<PAGE>
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
ss.310(a)(1) .......................................................609
(a)(2) .......................................................609
(a)(3) .............................................. Not Applicable
(a)(4) .............................................. Not Applicable
(b) .......................................................608
610
ss. 311(a) .......................................................613
(b) .......................................................613
ss. 312(a) .......................................................701
702(a)
(b) .......................................................702(b)
(c) .......................................................702(c)
ss. 313(a) .......................................................703(a)
(b) .......................................................703(a)
(c) .......................................................703(a)
(d) .......................................................703(b)
ss. 314(a) .....................................................704
(b) ...............................................Not Applicable
(c)(1) .......................................................102
(c)(2) .......................................................102
(c)(3) ...............................................Not Applicable
(d) ...............................................Not Applicable
(e) .......................................................102
ss. 315(a) .....................................................601
.......................................................603(a)
(b) .......................................................602
(c) .......................................................601
(d) .......................................................601
(e) .......................................................514
ss. 316(a)(1)(A) .......................................................512
(a)(1)(B) .......................................................513
(a)(2) ...............................................Not Applicable
(b) .......................................................508
(c) .......................................................104
ss. 317(a)(1) .......................................................503
(a)(2) .......................................................504
(b) .......................................................1003
ss. 318(a) .......................................................107
- --------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
Parties...................................................................1
Recitals of the Company...................................................1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions...........................................-1-
Act...................................................-2-
Affiliate.............................................-2-
Authenticating Agent..................................-2-
Board of Directors....................................-2-
Board Resolution......................................-2-
Business Day..........................................-2-
Code..................................................-2-
Commission............................................-2-
Company...............................................-2-
Company Request.......................................-2-
Corporate Trust Office................................-3-
corporation...........................................-3-
Defaulted Interest....................................-3-
Depositary............................................-3-
Dollar................................................-3-
Event of Default......................................-3-
Exchange Act..........................................-3-
Expiration Date.......................................-3-
Global Security.......................................-3-
Holder................................................-3-
Indebtedness..........................................-3-
Indenture.............................................-4-
Interest..............................................-4-
Interest Payment Date.................................-4-
Notice of Default.....................................-4-
Officers' Certificate.................................-4-
Opinion of Counsel....................................-4-
Original Issue Discount Security......................-4-
Outstanding...........................................-4-
Paying Agent..........................................-5-
Person................................................-5-
-i-
<PAGE>
Page
Place of Payment.......................................-5-
Predecessor Security...................................-5-
Record Date............................................-5-
Redemption Date........................................-5-
Redemption Price.......................................-5-
Registered Security....................................-5-
Regular Record Date....................................-6-
Responsible Officer....................................-6-
Securities.............................................-6-
Securities Act.........................................-6-
Security Register......................................-6-
Security Registrar.....................................-6-
Senior Debt Securities.................................-6-
Senior Indebtedness....................................-6-
Senior Indenture.......................................-6-
Special Record Date....................................-6-
Stated Maturity........................................-6-
Subsidiary.............................................-6-
Trustee ..............................................-7-
Trust Indenture Act....................................-7-
United States..........................................-7-
U.S. Government Obligations............................-7-
Vice President.........................................-7-
Yield to Maturity......................................-7-
SECTION 102. Compliance Certificates and Opinions...................-7-
SECTION 103. Form of Documents Delivered to Trustee.................-8-
SECTION 104. Acts of Holders; Record Dates..........................-8-
SECTION 105. Notices, Etc., to Trustee and Company.................-10-
SECTION 106. Notice to Holders; Waiver.............................-11-
SECTION 107. Conflict with Trust Indenture Act.....................-11-
SECTION 108. Effect of Headings and Table of Contents..............-11-
SECTION 109. Successors and Assigns................................-11-
SECTION 110. Separability Clause...................................-11-
SECTION 111. Benefits of Indenture.................................-12-
SECTION 112. Governing Law.........................................-12-
SECTION 113. Legal Holidays........................................-12-
SECTION 114. Incorporators, Stockholders, Officers and Directors
of the Company Exempt from Individual Liability.......-12-
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.......................................-13-
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Page
SECTION 202. Form of Trustee's Certificate of Authentication.......-13-
SECTION 203. Securities in Global Form.............................-14-
SECTION 204. CUSIP Numbers.........................................-15-
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series..................-15-
SECTION 302. Denominations.........................................-18-
SECTION 303. Execution, Authentication, Delivery and Dating........-19-
SECTION 304. Temporary Securities..................................-20-
SECTION 305. Registration, Registration of Transfer and Exchange...-22-
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities......-23-
SECTION 307. Payment of Interest; Interest Rights Preserved........-24-
SECTION 308. Persons Deemed Owners.................................-25-
SECTION 309. Cancellation..........................................-25-
SECTION 310. Computation of Interest...............................-26-
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture...............-26-
SECTION 402. Application of Trust Money............................-27-
SECTION 403. Discharge of Liability on Securities of Any Series....-28-
SECTION 404. Reinstatement.........................................-28-
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.....................................-29-
SECTION 502. Acceleration of Maturity; Rescission and Annulment....-30-
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................-31-
SECTION 504. Trustee May File Proofs of Claim......................-32-
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities........................................-33-
SECTION 506. Application of Money Collected........................-33-
SECTION 507. Limitation on Suits...................................-33-
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest..................................-34-
SECTION 509. Restoration of Rights and Remedies....................-34-
SECTION 510. Rights and Remedies Cumulative........................-35-
SECTION 511. Delay or Omission Not Waiver..........................-35-
SECTION 512. Control by Holders....................................-35-
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<PAGE>
Page
SECTION 513. Waiver of Past Defaults...............................-35-
SECTION 514. Undertaking for Costs.................................-36-
SECTION 515. Waiver of Stay or Extension Laws......................-36-
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities...................-36-
SECTION 602. Notice of Defaults....................................-38-
SECTION 603. Certain Rights of Trustee.............................-38-
SECTION 604. Not Responsible for Recitals or Issuance of Securities-39-
SECTION 605. May Hold Securities...................................-39-
SECTION 606. Money Held in Trust...................................-39-
SECTION 607. Compensation and Reimbursement........................-39-
SECTION 608. Disqualification; Conflicting Interests...............-40-
SECTION 609. Corporate Trustee Required; Eligibility...............-40-
SECTION 610. Resignation and Removal; Appointment of Successor.....-40-
SECTION 611. Acceptance of Appointment by Successor................-42-
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business..............................................-43-
SECTION 613. Preferential Collection of Claims Against Company.....-43-
SECTION 614. Appointment of Authenticating Agent...................-44-
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders................................................-45-
SECTION 702. Preservation of Information; Communications to Holders.-46-
SECTION 703. Reports by Trustee.....................................-46-
SECTION 704. Reports by Company.....................................-46-
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms...-47-
SECTION 802. Successor Substituted..................................-48-
ARTICLE NINE
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<PAGE>
Page
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.......-48-
SECTION 902. Supplemental Indentures with Consent of Holders..........-49-
SECTION 903. Execution of Supplemental Indentures.....................-50-
SECTION 904. Effect of Supplemental Indentures........................-50-
SECTION 905. Conformity with Trust Indenture Act......................-50-
SECTION 906. Reference in Securities to Supplemental Indentures.......-51-
SECTION 907. Notice of Supplemental Indentures........................-51-
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.............-51-
SECTION 1002. Maintenance of Office or Agency........................-51-
SECTION 1003. Money for Security Payments to Be Held in Trust........-52-
SECTION 1004. Statement by Officers as to Default....................-53-
SECTION 1005. Existence..............................................-53-
SECTION 1006. Maintenance of Properties..............................-53-
SECTION 1007. Payment of Taxes and Other Claims......................-54-
SECTION 1008. Book-Entry System......................................-54-
SECTION 1009. Waiver of Certain Covenants............................-54-
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Applicability of Article...............................-54-
SECTION 1102. Election to Redeem; Notice to Trustee..................-55-
SECTION 1103. Selection by Trustee of Securities to be Redeemed......-55-
SECTION 1104. Notice of Redemption...................................-55-
SECTION 1105. Deposit of Redemption Price............................-56-
SECTION 1106. Securities Payable on Redemption Date..................-56-
SECTION 1107. Securities Redeemed in Part............................-56-
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article...............................-57-
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities..-57-
SECTION 1203. Redemption of Securities for Sinking Fund..............-57-
ARTICLE THIRTEEN
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<PAGE>
Page
SUBORDINATION OF SECURITIES
SECTION 1301. Securities Subordinate to Senior Indebtedness............-58-
SECTION 1302. Circumstances Requiring Prior Payment of Senior
Indebtedness.............................................-58-
SECTION 1303. Subrogation to Rights of Holders of Senior Indebtedness..-59-
SECTION 1304. Provisions Solely to Define Relative Rights..............-60-
SECTION 1305. Trustee to Effectuate Subordination......................-60-
SECTION 1306. No Waiver of Subordination Provisions....................-60-
SECTION 1307. Notice to Trustee........................................-61-
SECTION 1308. Reliance on Certificate of Liquidating Agent.............-61-
SECTION 1309. Trustee Not Fiduciary for Holders of Senior Indebtedness.-61-
SECTION 1310. Rights of Trustee as Holder of Senior Indebtedness.......-62-
SECTION 1311. Article Applicable to Paying Agent.......................-62-
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called................-62-
SECTION 1402. Call, Notice and Place of Meetings.......................-62-
SECTION 1403. Persons Entitled to Vote at Meetings.....................-63-
SECTION 1404. Quorum; Action...........................................-63-
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment
of Meetings..............................................-64-
SECTION 1406. Counting Votes and Recording Action of Meetings..........-64-
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<PAGE>
INDENTURE, dated as of September 30, 1997, between InaCom Corp., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 10810 Farnam
Drive, Omaha, Nebraska 68154, and Norwest Bank Minnesota, National Association,
a national banking association, as Trustee having its principal place of
business at 6th & Marquette, Minneapolis, Minnesota 55479 (Attention: Corporate
Trust Securities) (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures, notes
or other evidences of indebtedness (herein called the "Securities"), to be
issued in one or more series as provided in this Indenture.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted
<PAGE>
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a resolution duly adopted by the Board of
Directors, a copy of which, certified by the Secretary or an Assistant Secretary
of the Company to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, shall have been
delivered to the Trustee.
"Business Day" means, with respect to any Place of Payment or any other
place, as the case may be, each Monday, Tuesday, Wednesday, Thursday and Friday,
other than any such day on which banking institutions in The City of New York,
New York or in such particular place are authorized or obligated by law or
executive order to close.
"Code" has the meaning specified in Section 201.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its
-2-
<PAGE>
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
office on the date hereof is located at Minneapolis, Minnesota.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to any Global Securities, a clearing
agency that is registered as such under the Exchange Act and is designated by
the Company to act as Depositary for such Global Securities (or any successor
securities clearing agency so registered).
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the United States Securities Exchange Act of 1934 (or
any successor statute), as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that is registered in the Security
Register in the name of a Depositary or a nominee thereof.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness", as applied to any Person, means the principal of, and
premiums, if any, and 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), (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 acquirer's usual business), (c) guarantees by such
Person of indebtedness described in clause (a) or (b) of any other Person, (d)
all renewals, extensions, refundings, deferrals, restructurings, amendments and
modifications of any such indebtedness, obligation or guarantee (e) all
reimbursement obligations of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person, (f) all capital lease obligations of such Person, and (g) all net
obligations of such Person under interest rate swap or similar agreements of
such person.
-3-
<PAGE>
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively.
"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in Section
501(4) or 501(5).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 1004 shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for payment or redemption of which
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities; provided
that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
-4-
<PAGE>
(iii) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" means any city in which a Paying Agent is located.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Record Date" means any Regular Record Date or Special Record Date.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form established pursuant
to Section 201 which is registered in the Security Register.
-5-
<PAGE>
"Regular Record Date" for the interest payable on any Interest Payment Date
means with respect to any series of Securities, the date specified for that
purpose as contemplated by Section 301 (whether or not a Business Day).
"Responsible Officer", when used with respect to the Trustee, means any
officer within the Corporate Trust Office including any Vice President,
Assistant Vice President, Secretary, Assistant Secretary, Managing Director or
any other officer of the Trustee customarily performing functions similar to
those performed by the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
his knowledge and familiarity with the particular subject.
"Securities" has the meaning ascribed to it in the first paragraph under
the caption "Recitals of the Company".
"Securities Act" means the United States Securities Act of 1933 (or any
successor statute), as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Debt Securities" means the Senior Debt Securities issuable by the
Company under and pursuant to the Senior Indenture.
"Senior Indebtedness" means Indebtedness of the Company outstanding at any
time except Indebtedness that by its terms is subordinate in right of payment to
the Securities or Indebtedness that is not otherwise senior in right of payment
to the Securities, provided that the term "Senior Indebtedness" shall not
include Indebtedness of the Company to any Subsidiary for money borrowed or
advanced from such Subsidiary.
"Senior Indenture" means the Indenture dated as of the date hereof relating
to the issuance of Senior Debt Securities as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental thereto entered into pursuant to the applicable provisions thereof,
including for all purposes of said indenture and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern said indenture and any such supplement indenture,
respectively.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors,
-6-
<PAGE>
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"United States" means the United States of America (including the States
and the District of Columbia) and its "possessions", which include Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
"U.S. Government Obligations" has the meaning specified in Section 401.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Yield to Maturity", when used with respect to any Original Issue Discount
Security, means the yield to maturity, if any, set forth on the face thereof.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate (including certificates provided pursuant to Section
1004) or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include, without limitation:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein 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;
-7-
<PAGE>
(3) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such certificate or opinion is based are
erroneous.
Any such certificate or opinion of counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
-8-
<PAGE>
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) The Company may set any day as a record date for the purpose of
determining the Holders entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders, provided that
the Company may not set a record date for, and the provisions of this Section
104(d) shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in Section 104(e). If any record
date is set pursuant to this Section 104(d), the Holders on such record date,
and only such Holders, shall be entitled to take the relevant action, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Securities on
such record date. Nothing in this Section 104(d) shall be construed to prevent
the Company from setting a new record date for any action for which a record
date has previously been set pursuant to this Section 104(d) (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this Section 104(d) shall be
construed to render ineffective any action taken by Holders of the requisite
principal amount of Securities on the date such action is taken. Promptly after
any record date is set pursuant to this Section 104(d), the Company, at its own
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and to
each Holder in the manner set forth in Section 106.
(e) The Trustee may set any day as a record date for the purpose of
determining the Holders entitled to join in the giving or making of (i) any
Notice of Default, (ii) any declaration of acceleration referred to in Section
502, (iii) any request to institute proceedings referred to in Section 507(2),
or (iv) any direction referred to in Section 512. If any record date is set
pursuant to this Section 104(e), the Holders on such record date, and only such
Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Securities on such record date. Nothing in this Section 104(e) shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this Section
104(e) (whereupon the record date previously set shall automatically and with no
action by any Person be cancelled and of no effect), and nothing in this Section
104(e) shall be construed to render ineffective any action taken by Holders of
the requisite principal amount of Securities on the date such action is taken.
Promptly after any record date is set pursuant to this Section 104(e), the
Trustee, at the Company's expense, shall cause notice of such record date, the
proposed action by Holders and
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the applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities in the manner set forth in Section 106.
(f) With respect to any record date set pursuant to Sections 104(d) or
104(e), the party hereto which sets such record date may designate any day as
the "Expiration Date" and from time to time may change the Expiration Date to
any earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder in the manner set forth in Section 106, on or prior
to the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to Section 104(d) or 104(e), the party
hereto which set such record date shall be deemed to have initially designated
the 180th day after such record date as the Expiration Date with respect
thereto, subject to its right to change the Expiration Date as provided in this
Section 104(f). Notwithstanding the foregoing, no Expiration Date shall be later
than the 180th day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
(h) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Market Services, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, and sent by facsimile to the Company to the attention of the
Treasurer at the address of the Company's principal office specified in
the first paragraph of this instrument and to facsimile number (402)
392-3602, or at any other address or to any other facsimile number as
the case may be, previously furnished in writing to the Trustee by the
Company.
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SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders of Securities and the holders of any Senior Indebtedness, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at a Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date,
Redemption Date or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, so long as payment is made on such succeeding Business Day.
SECTION 114. Incorporators, Stockholders, Officers and Directors of the Company
Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement in this
Indenture or any indenture supplemental hereto or of any Security, or for any
claim based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor Person, either directly or through
the Company or any successor Person, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
of any successor Person, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability of every name
and nature, either at common law or in equity or by constitution or statute, of,
and any and all such rights and claims against, every such incorporator,
stockholder, officer or director, as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom are hereby expressly waived and released as a condition of,
and as a consideration for, the execution of this Indenture and the issue of
such Securities.
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ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series shall be in substantially
such form or forms (including temporary or permanent global form) as shall be
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange, the Internal Revenue Code of 1986, as
amended, and the regulations thereunder (the "Code"), or as may, consistently
herewith, be determined by the officers executing such Securities, as evidenced
by their execution of the Securities. If temporary Securities of any series are
issued in global form as permitted by Section 304, the form thereof shall be
established as provided in the preceding sentence. A copy of the Board
Resolution establishing the form or forms of Securities of any series (or any
such temporary Global Security) shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities (or any such temporary Global
Security).
Any definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any automated quotation system or securities
exchange on which the Securities may be quoted or listed, as the case may be,
all as determined by the officers executing such Securities, as evidenced by
their execution of such Securities.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
"This is one of the Securities referred to in the within-mentioned
Indenture.
,
as Trustee
By ____________________
Authorized Signatory"
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SECTION 203. Securities in Global Form.
(a) A supplemental indenture to the Indenture or a Board Resolution (and,
to the extent not set forth in the Board Resolution, an Officer's Certificate
detailing the adoption of terms pursuant to the Board Resolution) shall
establish whether the Securities of a series shall be issued in whole or in part
in the form of one or more Global Securities and the Depositary for such Global
Security or securities.
(b) Notwithstanding any provisions to the contrary contained in Section 305
of the Indenture and in addition thereto, any Global Security shall be
exchangeable pursuant to Section 305 of the Indenture for securities registered
in the names of Holders other than the Depositary for such Security or its
nominee only if (i) such Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Security or if at any time such
Depositary ceases to be a clearing agency registered under the Exchange Act,
and, in either case, the Company fails to appoint a successor Depositary within
90 days of such event, (ii) the Company executes and delivers to the Trustee an
Officer's Certificate to the effect that such Global Security shall be so
exchangeable or (iii) an event shall have happened and be continuing which is or
after notice or lapse of time or both, would be, an Event of Default with
respect to the Securities represented by such Global Security. Any Global
Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Securities registered in such names as the Depositary shall
direct in writing in an aggregate principal amount equal to the principal amount
of the Global Security with like tenor and terms.
Except as provided in this Section, a Global Security may not be
transferred except as a whole by the Depositary with respect to such Global
Security to a nominee of such Depositary, by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such a successor
Depositary.
(c) Any Global Security issued hereunder shall bear a legend in
substantially the following form:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE
OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY."
(d) The Depositary, as a Holder, may appoint agents and otherwise authorize
Persons that have accounts with the Depositary to give or take any request,
demand,
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authorization, direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under the Indenture.
(e) Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 301, payment of the principal of
and interest on any Global Security shall be made to the person specified
therein.
(f) Except as provided in Subsection (e) above, the Company, the Trustee
and any Agent shall treat a person as the Holder of such principal amount of
outstanding Securities of such series represented by a Global Security as shall
be specified in a written statement of the Depositary with respect to such
Global Security, for purposes of obtaining any consents, declarations or
directions required to be given by the Holders pursuant to this Indenture.
SECTION 204. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other elements of
identification printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officer's
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all other
Securities);
(2) any limit upon the aggregate principal amount of
the Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 304, 305, 306, 906
or 1107);
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(3) whether Securities of the series are to be
issuable as Registered Securities, whether any Securities of the series
are to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form
and, if so, whether beneficial owners of interests in any such
permanent Global Security may exchange such interests for Securities of
such series and of like tenor of any authorized form and denomination
and the circumstances under which any such exchanges may occur, if
other than in the manner provided in Section 305, and the Depositary
for any Global Security or Securities;
(4) the manner in which, or the extent to which, or
any interest payable on a temporary Global Security on any Interest
Payment Date will be paid if other than in the manner provided in
Section 304;
(5) the date or dates on which the principal (and
premium, if any) of the Securities of the series is payable or the
method of determination thereof, including, without limitation, the
maturity date or dates;
(6) the rate or rates (which may be fixed or variable
or based upon such indices as the Company may elect), or the method of
determination thereof, at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be
payable and, if other than as set forth in Section 101, the Regular
Record Date for the interest payable on any Registered Securities on
any Interest Payment Date;
(7) the place or places where, subject to the
provisions of Section 1002, the principal of (and premium, if any) and
interest, if any, on the Securities of the series shall be payable;
(8) the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of
the series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have that option;
(9) the obligation, if any, of the Company to redeem
or purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which, Securities of the series shall be
redeemed or purchased in whole or in part pursuant to such obligation;
(10) the denomination in which any Registered
Securities of that series shall be issuable, if other than
denominations of $1,000 and any integral multiple thereof;
(11) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
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(12) any additional means of satisfaction and
discharge of this Indenture with respect to Securities of the series
pursuant to Section 401, any additional conditions to discharge
pursuant to Section 401 or 403 and the application, if any, of Section
403;
(13) any deletions or modifications of or additions
to the Events of Default set forth in Section 501 or covenants of the
Company set forth in Article Ten pertaining to the Securities of the
series;
(14) the terms for conversion or exchange, if any;
(15) whether the Securities will be secured or
unsecured and, if secured, the nature and terms of the security;
(16) if other than Dollars, the currency, currencies
or currency unit or units in which such Securities will be denominated
and in which the principal of, and premium and interest, if any,
thereon will be payable;
(17) whether, and the terms and conditions on which,
the Company or a Holder may elect that, or the other circumstances
under which, payment of principal of, or premium or interest, if any,
is to be made in a currency or currencies or currency unit or units
other than that in which such Securities are denominated;
(18) if the payments of principal of or interest on
the Securities of a series are to be made in a foreign currency other
than the currency in which such Securities are denominated, the manner
in which the exchange rate with respect to such payments shall be
determined;
(19) if the amount of payments of principal of or
interest on the Securities of a series may be determined with reference
to an index based on a currency or currencies other than that in which
the Securities are denominated or designated to be payable or
determined by reference to a commodity, commodity index, stock exchange
index or financial index, the manner in which such amounts shall be
determined;
(20) with respect to (16), (17), (18) and (19) above
if the referenced currency or currencies or units are other than U.S.
dollars then prior to issuance of any such Securities, the Company
shall obtain the written consent of the Trustee, which consent of the
Trustee may be withheld in the sole discretion of the Trustee, to the
currency, currencies or currency units so established;
(21) provisions, if any, granting special rights to
the holders of Securities of a series upon the occurrence of such
events as may be specified and the provisions, if any, relating to the
subordination of the Securities of such series to other obligations of
the Company;
(22) any provision for the conversion or exchange of
Securities of a series, either at the option of the Holder thereof or
the Company, into or for another security or securities of the Company,
the security or securities into or for which, the period or periods
within which, the price or prices, including any adjustments thereto,
at which and the other terms and conditions upon which any Securities
of such series shall be converted or exchanged, in whole or in part;
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(23) if the Securities of a series are to be issued
upon the exercise of warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(24) the provisions, if any, relating to any security
provided for the Securities of any series;
(25) any addition to or change in the Events of
Default which applies to any Securities of a series and any change in
the right of the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to
Section 502;
(26) any addition to or change in the covenants set
forth in Article Ten which applies to Securities of such series;
(27) any depositaries, interest rate calculation
agents, exchange rate agents or other agents with respect to Securities
of such series if other than those appointed herein; and
(28) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Thirteen.
All Securities of any one series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 303) set forth, or determined in the manner provided, in
the Officer's Certificate referred to above or in any such indenture
supplemental hereto.
At the option of the Company, interest on the Securities of any series that
bears interest may be paid by mailing a check to the address of any Holder as
such address shall appear in the Securities Register.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action together
with such Board Resolution shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officer's Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations as
shall be specified and/or contemplated by Section 301. In the absence of any
such provisions with respect to the Securities of any series, the Registered
Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiple thereof. Unless
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otherwise provided as contemplated by Section 301 with respect to any series of
Securities, any Securities of a series denominated in a currency other than
Dollars shall be issuable in denominations that are the equivalent, as
determined by the Company by reference to the noon buying rate in The City of
New York for cable transfers for such currency, as such rate is reported or
otherwise made available by the Federal Reserve Bank of New York, on the
applicable issue date for such Securities, of $1,000 and any integral multiple
thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President, its Treasurer or
one of its Vice Presidents, under its corporate seal reproduced thereon or
affixed thereto attested by its Secretary or one of its Assistant Secretaries.
The signature of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver to the Trustee for authentication Securities
of any series executed by the Company, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities as in this
Indenture provided and not otherwise. If provided for in such procedures, such
Company Order may authorize authentication and delivery pursuant to oral or
electronic instructions from the Company or its duly authorized agent or agents,
which oral instructions shall be confirmed promptly in writing.
If the form or terms of the Securities of the series have been established
in or pursuant to one or more Board Resolutions as permitted by Sections 201 and
301, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant to
Board Resolution as permitted by Section 201, that such form has been
established in accordance with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or pursuant to
Board Resolution as permitted by Section 301, that such terms have been
established in accordance with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute legal, valid and binding obligations
of the Company, enforceable in accordance with their terms, except as such
enforcement is subject to the effect of
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(i) bankruptcy, insolvency, reorganization or other law relating to or affecting
creditors' rights and (ii) general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security, a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309 together
with a written statement (which need not comply with Section 103 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, in
registered form, and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive Securities of the
same series of authorized denominations. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
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Any temporary Global Security and any permanent Global Security shall,
unless otherwise provided therein, be delivered to the Depositary for credit to
the respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security of a series (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities of that series in aggregate principal amount equal
to the principal amount of such temporary Global Security, executed by the
Company. On or after the Exchange Date such temporary Global Security shall be
surrendered by the Depositary to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for definitive
Securities of that series without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary Global Security, a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such temporary
Global Security to be exchanged. The definitive Securities to be delivered in
exchange for any such temporary Global Security shall be in registered form or
permanent global registered form, or any combination thereof, as specified
and/or contemplated by Section 301, and if any combination thereof is so
specified, as requested by the beneficial owner thereof.
Unless otherwise specified in the temporary Global Security, the interest
of a beneficial owner of Securities of a series in a temporary Global Security
shall be exchanged on the Exchange Date for definitive Securities (and where the
form of the definitive Securities is not specified by the Holder, for an
interest in a permanent Global Security) of the same series and of like tenor
and after the Exchange Date, the interest of a beneficial owner of Securities of
a series in a temporary Global Security shall be exchanged for definitive
Securities (and where the form of the definitive Securities is not specified by
the Holder, for an interest in a permanent Global Security) of the same series
and of like tenor. Unless otherwise specified in such temporary Global Security,
any exchange shall be made free of charge to the beneficial owners of such
temporary Global Security, except that a Person receiving definitive Securities
must bear the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Securities in
person at the offices of the Depositary.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
and/or contemplated by Section 301, interest payable on a temporary Global
Security on an Interest Payment Date for Securities of such series shall be
payable to the Depositary on such Interest Payment Date, for credit without
further interest on or after such Interest Payment Date to the respective
accounts of the Persons who are the beneficial owners of such temporary Global
Security on such Interest Payment Date. Any interest so received by the
Depositary and not paid as herein provided shall be returned to the Trustee
immediately prior to the expiration of two years after such Interest Payment
Date in order to be repaid to the Company in accordance with Section 1003.
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SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept for each series of Securities at one of
the offices or agencies maintained pursuant to Section 1002 a register (the
register maintained in such office and in any other office or agency of the
Company in a Place of Payment herein referred to collectively as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities of such series. The Trustee is hereby
initially appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Securities of the same series and of like tenor, of any authorized denominations
and of a like aggregate principal amount.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series and of like tenor,
of any authorized denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified and/or
contemplated by Sections 203 or 301, any permanent Global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent Global Security are entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified and/or contemplated by Sections
203 or 301, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities of that series in an aggregate
principal amount equal to the principal amount of such permanent Global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such permanent Global Security shall be
surrendered from time to time in accordance with instructions given to the
Trustee (which instructions shall be in writing but need not comply with Section
103 or be accompanied by an Opinion of Counsel) by the Depositary or such other
depositary as shall be specified in the Company Order with respect thereto to
the Trustee, as the Company's agent for such purpose, to be exchanged, in whole
or in part, for definitive Securities of the same series without charge and the
Trustee shall authenticate and deliver, in exchange for each portion of such
permanent Global Security, a like aggregate principal amount of other definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such permanent Global Security to be exchanged, which Securities
shall be in the form of Registered Securities; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities of that series is to be redeemed and ending
on the relevant Redemption Date. Promptly following any such exchange in part,
such permanent Global Security shall be returned by the Trustee to the
Depositary or such other depositary referred to
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above in accordance with the instructions of the Company referred to above. If a
Registered Security is issued in exchange for any portion of a permanent Global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent Global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than exchange
pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of such series selected for redemption and ending at the close of
business on the day of the mailing of the relevant notice of redemption or (ii)
to register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless,
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then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fee and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. Unless otherwise provided with respect to the Securities of any
series, payment of interest may be made at the option of the Company, in the
case of Registered Securities, by check mailed or delivered to the address of
any Person entitled thereto as such address shall appear in the Security
Register.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Registered
Security of such series and the date of the proposed payment, and at the same
time
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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 provided
in this Clause (1). Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of Registered
Securities of such series at his address as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this Clause (2), such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture, upon registration of transfer of, in exchange
for or in lieu of, any other Security, shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 305 and 307)
interest on such Registered Security and for all other purposes whatsoever,
whether or not such Security is overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Registered Securities so delivered shall be promptly canceled by the
Trustee. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
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may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly canceled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
Any temporary Global Security shall be disposed of if the entire aggregate
principal amount of the Securities represented thereby has been exchanged.
Permanent Global Securities shall not be disposed of until exchanged in full for
definitive Securities or until payment thereon is made in full.
SECTION 310. Computation of Interest.
Except as otherwise specified and/or contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360 day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
with respect to Securities of a series, and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to Securities of such series, when
(1) either
(A) all Securities of such series previously
authenticated and delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment money has previously been
deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
(B) with respect to all Outstanding Securities of
such series not previously delivered to the Trustee for cancellation, the
Company has deposited or caused to be deposited with the Trustee as trust funds,
under the terms of an irrevocable trust agreement in form and substance
reasonably satisfactory to the Trustee, for that purpose money or U.S.
Government Obligations maturing as to principal and interest in such amounts and
at such times as will, together with the income to accrue thereon, without
consideration of any reinvestment thereof, be sufficient in the opinion of a
nationally recognized firm of independent public accountants, to pay and
discharge the entire indebtedness on all Outstanding Securities of such series
not previously delivered to the Trustee for cancellation for principal (and
premium, if any) and interest to the Stated Maturity or any Redemption Date
contemplated by the penultimate paragraph of this Section, as the case may be;
or
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(C) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as contemplated by Section
301, to be applicable to the Securities of such series;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of such
series;
(3) the Company has complied with any other conditions specified pursuant
to Section 301 to be applicable to the discharge of Securities of such series
pursuant to this Section; and
(4) the Company has delivered to the Trustee an Officer's Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture with
respect to the Outstanding Securities of such series have been complied with.
For the purposes of this Indenture, "U.S. Government Obligations" means
direct non-callable obligations of, or non-callable obligations the payment of
principal of and interest on which is guaranteed by, the United States of
America, or to the payment of which obligations or guarantees the full faith and
credit of the United States of America is pledged, or beneficial interests in a
trust the corpus of which consists exclusively of money or such obligations or a
combination thereof.
If any Outstanding Securities of such series are to be redeemed prior to
their Stated Maturity, whether pursuant to any optional redemption provisions or
in accordance with any mandatory sinking fund requirement, the trust agreement
shall provide therefor and the Company shall make such arrangements as are
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Outstanding Securities of such series pursuant to this Section,
the obligations of the Company to the Trustee under Section 607, the obligations
of the Trustee to any Authenticating Agent under Section 614 and, except for a
discharge pursuant to subclause (A) of clause (1) of this Section, the
obligations of the Company under Sections 305, 306, 404, 1001 and 1002 and the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003, shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
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SECTION 403. Discharge of Liability on Securities of Any Series.
If this Section is specified, as contemplated by Section 301, to be
applicable to Securities of any series, the Company shall be deemed to have paid
and discharged the entire indebtedness on all the Outstanding Securities of such
series, the obligation of the Company under this Indenture and the Securities of
such series, to pay the principal of (and premium, if any) and interest on
Securities of such series, shall cease, terminate and be completely discharged
and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging such satisfaction and discharge, when
(1) the Company has complied with the provisions of Section 401 of this
Indenture (other than any additional conditions specified pursuant to Sections
301 and 401(3)) with respect to all Outstanding Securities of such series;
(2) the Company has delivered to the Trustee a Company Request requesting
such satisfaction and discharge;
(3) the Company has complied with any other conditions specified pursuant
to Section 301 to be applicable to the discharge of Securities of such series
pursuant to this Section; and
(4) the Company has delivered to the Trustee an Officer's Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the discharge of the indebtedness on the Outstanding
Securities of such series have been complied with.
Upon the satisfaction of the conditions set forth in this Section with
respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that, the Company shall not be discharged
from any payment obligations in respect of Securities of such series which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law or pursuant to Section 305 or 306.
SECTION 404. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations deposited with respect to Securities of any series in
accordance with Section 401 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture with respect to the Securities of such series and the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to Section 401 until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 401; provided, however, that if the Company has made any
payment of principal of (or premium, if any) or interest on any Securities
because of the reinstatement of its obligations, the Company shall be
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subrogated to the rights of the Holders of such Securities to receive such
payment from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless it is either inapplicable to a particular series or it is specifically
deleted or modified in or pursuant to the supplemental indenture or Board
Resolution establishing such series of Securities or in the form of Security for
such series:
(1) default in the payment of the principal of (or premium, if any, on) any
Security of that series at its Maturity; or
(2) default in the payment of any interest upon any Security of that series
when it becomes due and payable and continuance of such default for a period of
30 days; or
(3) default in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series, and continuance of such default for a
period of 60 days; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(5) a default under any Indebtedness of the Company under any mortgages,
indentures or instruments under which the Company may have issued, or under
which there may have been secured or evidenced, any Indebtedness for money
borrowed by the Company aggregating in excess of $5,000,000, whether such
Indebtedness now exists or shall hereafter be created, such Indebtedness is not
paid at final maturity (either upon its stated maturity or acceleration thereof)
and such default in payment or acceleration has not been cured or rescinded,
within a period of 30 days after there shall have been given, by registered or
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certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities, a written notice specifying such default
and requiring the Company to cause such Indebtedness to be discharged
or cause such default to be cured or waived or such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(7) the commencement by the Company of a voluntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or the
consent by the Company to the filing of such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial part
of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the Company
in furtherance of any such action.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of (i) the series affected by such default (in the case of an Event
of Default described in Section 501 (1), (2), (3) or (4) or (ii) all series of
Securities (in the case of other Events of Default) may declare the principal
amount (or, if any such Securities are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
and any accrued but unpaid interest thereon of all of the Securities of the
series affected by such default or all series, as the case
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may be, to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) and any accrued but unpaid interest
thereon shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or of
all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue interest on all Securities of that
series (or of all series, as the case may be),
(B) the principal of (and premium, if any, on) any
Securities of that series (or of all series, as the case may be) which have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such Securities (in the case
of Original Issue Discount Securities, the Securities' Yield to Maturity),
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates prescribed therefor
in such Securities (in the case of Original Issue Discount Securities, the
Securities' Yield to Maturity), and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series (or of
all series, as the case may be), other than the non-payment of the principal of
Securities of that series (or of all series, as the case may be) which has
become due solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or Event of Default or
impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if default is made in the payment of (1) any
installment of interest on any Security of any series when such interest becomes
due and payable and such default continues for a period of 30 days, or (2) the
principal of (or premium, if any, on) any Security at the Maturity thereof, the
Company will, upon demand of the Trustee, pay
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to it, for the benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal (and premium, if any) and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on any
overdue interest, at the rate or rates prescribed therefor in such Securities
(or in the case of Original Issue Discount Securities, the Securities' Yield to
Maturity), and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal (or lesser amount
in the case of Original Issue Discount Securities) 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,
(i) to file and prove a claim for the whole amount of
principal (or lesser amount in the case of Original Issue Discount Securities)
(and premium, if any) 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 Holders allowed in such judicial proceeding, and
(ii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to
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the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceedings; provided, however,
that the Trustee may, on behalf of such Holders, vote for the election of a
trustee in bankruptcy or similar official.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of
(and premium, if any) and interest on the Securities in respect of which or for
the benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest, respectively; and
THIRD: Any remaining amounts shall be repaid to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
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(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to such series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders, or to obtain or to seek to obtain priority or preference over any other
such Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
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SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
With respect to Securities of any series, the Holders of a majority in
principal amount of the Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, relating to or arising under an Event of Default described in
Section 501(1), (2), (3) or (4), and with respect to all Securities the Holders
of a majority in principal amount of all Outstanding Securities shall have the
right to direct the time, method and place of conducting any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, not
relating to or arising under such an Event of Default, provided that in each
such case
(1) such direction shall not be in conflict with any rule of law or with
this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all
Outstanding Securities of such series waive any past default hereunder with
respect to such series and its consequences, and the Holders of a majority in
principal amount of all Outstanding Securities may on behalf of the Holders of
all Securities waive any other past default hereunder and its consequences,
except in each case a default
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(1) in the payment of the principal of (or premium, if any) or interest on
any Security, or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that the provisions of this Section (to the extent
permitted by law) shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or to
any suit instituted by any Holder of any Security for the enforcement of the
payment of the principal of, premium, if any, or interest on any Security.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, usury or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent person would exercise
or use under the circumstances in the conduct of such person's own affairs,
provided, however, that in no event shall the Trustee
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exercise a degree of care less than that customarily exercised thereby in the
ordinary course of business.
(b) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
the Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that
(1) this paragraph (c) shall not be construed to limit the
effect of paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture; and
(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 indemnity
satisfactory to it against such risk or liability is not assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
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SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series as to which the Trustee has received written
notice, the Trustee shall give to all Holders of Securities of such series, in
the manner provided in Section 106, notice of such default, unless such default
shall have been cured or waived; provided, however, that in the case of any
default of the character specified in Section 501(4) no such notice to Holders
of Securities shall be given until at least 30 days after the occurrence of such
default. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate,
other 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;
(b) 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;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on their part, conclusively rely upon an
Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of Indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if
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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 during
reasonable business hours and after reasonable notice; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company in writing.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
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(3) to indemnify the Trustee and its directors, officers,
employees and agents for, and to hold them harmless against, any loss,
liability or expense incurred without negligence or bad faith on their
part, arising out of or in connection with the acceptance or
administration of the trust hereunder, including the costs and expenses
of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
To secure the Company's payment obligations under this
Section, the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee including, without limitation, all
money or property held or collected by the Trustee in trust to pay the principal
of, or interest on, or any other amounts on any Securities, and such lien shall
survive the satisfaction and discharge of the Indenture and any other
termination of the Indenture including any termination under any bankruptcy law.
When the Trustee incurs expenses or renders services in connection with an Event
of Default specified in Section 501(6) or (7), the Holders by their acceptance
of the Securities hereby agree that such expenses and the compensation for such
services are intended to constitute expenses of administration under Title 11 of
the United States Code or any other applicable Federal or state bankruptcy,
insolvency or similar law. "Trustee" for purposes of this Section shall include
any predecessor Trustee, but the negligence or bad faith of any Trustee shall
not affect the indemnification of any other Trustee.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such, having a
combined capital and surplus of at least $50,000,000 subject to supervision or
examination by federal or state authority, in good standing and having an office
or agency in the Borough of Manhattan, The City of New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article and a
successor shall be appointed pursuant to Section 610.
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SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed with respect to the Securities
of one or more series at any time by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee with
respect to the Securities of one or more series for any cause, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and such successor
Trustee or Trustees shall comply with the applicable requirements of Section
611. If, within one year after such resignation, removal or
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incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee with respect
to the Securities of any series to all Holders of Securities of such series in
the manner provided in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
(g) No retiring Trustee shall be liable for the acts or
omissions of any successor Trustee hereunder.
(h) All fees, charges and expenses of the retiring Trustee
payable in accordance with this Indenture shall become immediately due and
payable upon the appointment of a successor Trustee hereunder.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges payable in accordance with this
Indenture, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the
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retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee (including the trust created by this Indenture), shall be the
successor of the Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust
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Indenture Act regarding the collection of claims against the Company (or any
such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents reasonably
acceptable to the Company which shall be authorized to act on behalf of the
Trustee to authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
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The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
An Authenticating Agent hereunder shall be entitled to all of the rights,
protections and immunities of the Trustee hereunder.
If an appointment is made pursuant to this Section, the Securities may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities described in the within-mentioned Indenture.
------------------------------
As Trustee
By [Authenticating Agent]
as Authenticating Agent
By: ________________________
Authorized Signatory
Notwithstanding any provision of this Section to the contrary, if at any
time any Authenticating Agent appointed hereunder with respect to any series of
Securities shall not also be acting as the Security Registrar hereunder with
respect to any series of Securities, then, in addition to all other duties of an
Authenticating Agent hereunder, such Authenticating Agent shall also be
obligated to furnish to the Security Registrar promptly all information
necessary to enable the Security Registrar to maintain at all times an accurate
and current Security Register.
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
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(a) semi-annually, not more than 15 days after each Regular
Record Date (or, if there is no Regular Record Date relating to that
series, on January 1 and July 1), a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of
that series as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided that such list need not be furnished by the Company so long as the
Trustee is acting as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each series
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of each series received by
the Trustee in its capacity as Security Registrar. The Trustee may destroy any
list furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder, by receiving and holding the Securities,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee in writing if and when the Securities are listed on any
stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may
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be required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; provided that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 shall be filed with the Trustee within 15
days after the same is so required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company (a) shall not consolidate with or merge into any other Person
or, directly or indirectly, convey, transfer, sell, lease or otherwise dispose
of its properties and assets substantially as an entirety to any Person, and (b)
shall not permit any Person to consolidate or merge with or into the Company or
convey, transfer, sell, lease or otherwise dispose of such Person's properties
and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer, sell, lease or otherwise dispose of
its properties and assets substantially as an entirety to any Person,
the Person formed by such consolidation or into or with which the
Company is merged or the Person which acquires by conveyance, transfer
or sale, or which leases or otherwise acquires, the properties and
assets of the Company substantially as an entirety shall be a
corporation, limited liability company, partnership or trust, shall be
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance or observance of
every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction and
treating any Indebtedness which becomes due an obligation of the
Company at the time of such transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
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SECTION 802. Successor Substituted.
Upon any consolidation or merger of the Company with or into any other
Person, or any conveyance, transfer, sale or lease of the properties and assets
of the Company substantially as an entirety in accordance with Section 801, the
successor Person formed by such consolidation or merger or into or with which
the Company is merged or to which such conveyance, transfer, sale or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants and
obligations of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default with respect to
all or any series of the Securities (and, if such Event of Default is
applicable to less than all series of Securities, specifying the
series to which such Event of Default is applicable); or
(4) to permit or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely
affect the interests of the Holders of Securities of any series in any
material respect; or
(5) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided that
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such action pursuant to this Clause (5) shall not adversely affect the
interests of the Holders in any material respect; or
(6) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trust hereunder by more than one Trustee,
pursuant to the requirements of Section 611.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the written consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of all series affected by such
supplemental indenture (acting as one class) by the Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or the amounts payable
upon the redemption thereof, or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or change the place of payment where, or the place or
currency in which, any Security or any premium or interest thereon or
any other amount in respect thereof is payable, or impair the right to
institute suit for the enforcement of any payment in respect of any
Security on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities the consent of whose Holders is required for any
such supplemental indenture or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences) provided for in
this Indenture, or
(3) modify the obligation of the Company to maintain an
office or agency in the Borough of Manhattan, the City of New York
pursuant to Section 1002, or
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(4) modify any of the provisions of this Section, Section 513
or Section 1009, except to increase any percentage contained herein or
therein or to provide with respect to any particular series the right
to condition the effectiveness of any supplemental indenture as to
that series on the consent of the Holders of a specified percentage of
the aggregate principal amount of Outstanding Securities of such
series (which provision may be made pursuant to Section 301 without
the consent of any Holder) or to provide that certain other provisions
of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities
of such series with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and an Officers' Certificate stating
that all conditions precedent to the execution of such supplemental indenture
have been fulfilled. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act, as then in effect.
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SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Article, the Company
shall, or shall cause the Trustee to, give notice to all Holders of Securities
of such fact, setting forth in general terms the substance of such supplemental
indenture, in the manner provided in Section 106. Any failure of the Company or
the Trustee to give such notice, or any defect therein, shall not in any way
impair or affect the validity of any such supplemental indenture.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and premium, if
any) and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities, the
Company will maintain in each Place of Payment for any series of Securities an
office or agency where Securities of that series may be presented or surrendered
for payment, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its office or agency to
receive such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to
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maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall act as its own Paying Agent with respect to any series
of Securities, it will, on or before each due date of the principal of, premium,
if any, or interest on any of the Securities of that series, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal, premium, if any, or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
the Company will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, on or prior to 10:00 a.m. on each due date of the principal
of, premium, if any, or interest on any Securities of that series, deposit with
such Paying Agent(s) a sum in immediately available funds on the payment date
sufficient to pay the principal, premium, if any, or interest so becoming due,
such sum to be held as provided by the Trust Indenture Act, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of any
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) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) of that series in the making of
any payment of principal, premium, if any, or interest on the
Securities of that series; and
(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 by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security and remaining unclaimed for two years after such
principal, premium, if any, or interest
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has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. Statement by Officers as to Default.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company, an Officers' Certificate stating whether or not
to the best knowledge of the signers thereof the Company is in compliance on
such date with all conditions and covenants under the Indenture (without regard
to any period of grace or requirement of notice provided hereunder).
The Company will deliver to the Trustee, forthwith upon becoming aware of
any default or Event of Default under this Indenture, an Officers' Certificate
specifying with particularity such default or Event of Default and further
stating what action the Company has taken, is taking or proposes to take with
respect thereto. For the purpose of this Section, the term "default" means any
event which is, or after notice or lapse of time or both would become, an Event
of Default.
Any notice required to be given under this Section shall be delivered to
the Trustee at its Corporate Trust Office.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Company shall determine reasonably and in good faith that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
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nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a lien upon
the property of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 1008. Book-Entry System.
If the Securities cease to trade in the Depository's book-entry settlement
system, the Company covenants and agrees that it shall use reasonable efforts to
make such other book-entry arrangements that it determines are reasonable for
the Securities.
SECTION 1009. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Sections 1006 and 1007, or any covenant added for the
benefit of any series of Securities as contemplated by Section 301 (unless
otherwise specified pursuant to Section 301) if before or after the time for
such compliance the Holders of a majority in principal amount of the Outstanding
Securities of all series affected by such omission (acting as one class) shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified and/or contemplated by Section 301 for Securities of any series) in
accordance with this Article.
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SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
less than all the Securities of any series, the Company shall, at least 45 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed. In the case
of any redemption of Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed (other
than pursuant to Section 1107), the particular Securities to be redeemed shall
be selected not more than 30 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions of the principal
amount of Registered Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of that series or of the
principal amount of Global Securities of such series.
The Trustee shall promptly notify the Company and each Security Registrar
in writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 20 or more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at such Holder's address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
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(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
such date (or in the event of a redemption pursuant to Section 1107,
and if applicable, a statement that no interest is payable with respect
to such security),
(5) the place or places where such Securities, are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's written request, by
the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
Not less than one Business Day prior to any Redemption Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money (which shall be in immediately available funds
on such Redemption Date) sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security or, in the case of Original Issue Discount Securities, the Securities'
Yield to Maturity.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the
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Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Registered
Security or Securities of the same series and Stated Maturity, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified and/or
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". Unless otherwise provided by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption), and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivery of or by crediting Securities of that
series
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pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, whether upon original issue or upon transfer or assignment,
likewise covenants and agrees, that, to the extent and in the manner hereinafter
set forth, the payment of the principal of (and premium, if any) and interest on
each and all of the Securities is hereby expressly made subordinate and subject
in right of payment to the prior payment in full of all Senior Indebtedness.
SECTION 1302. Circumstances Requiring Prior Payment of Senior Indebtedness.
In the event of any dissolution or winding up or total or partial
liquidation or reorganization of the Company, whether in bankruptcy,
reorganization, insolvency, receivership or similar proceeding, then the holders
of Senior Indebtedness shall be entitled to receive payment in full of all
amounts due or to become due on or in respect of all Senior Indebtedness before
the Holders of the Securities are entitled to receive any payment on account of
principal of (or premium, if any) or interest on the Securities.
Unless otherwise provided in Section 301, no payment in respect of
Securities shall be made if, at the time of such payment, there exists a default
in payment of all or any portion of any Senior Indebtedness, and such default
shall not have been cured or waived in writing or the benefits of this sentence
waived in writing by or on behalf of the holders of such Senior Indebtedness. In
addition, unless otherwise provided in Section 301, during the continuation of
any event of default (other than a default referred to in the immediately
preceding sentence) with respect to any Senior Indebtedness permitting the
holders to accelerate the maturity thereof and upon written notice thereof given
to the Trustee, with a copy to the Company (the delivery of which shall not
affect the validity of the notice to the Trustee), by any holder of such Senior
Indebtedness or its representative, then, unless and until such an event of
default shall have been cured or waived or shall have ceased to exist, no
payment shall be made by the Company with respect to the principal of or
interest on the Securities or to acquire any of the Securities or on account of
the redemption provisions for the Securities; provided, however, that if the
holders of the Senior Indebtedness to which the default relates have not
declared such Senior Indebtedness to be immediately due and payable within 90
days after the occurrence of such default (or have declared such Senior
Indebtedness to be immediately due
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and payable and within such period have rescinded such declaration of
acceleration), then the Company shall resume making any and all required
payments in respect of the Securities (including any missed payments). Only one
payment blockage period under the immediately preceding sentence may be
commenced within any consecutive 270-day period with respect to the Securities.
No event of default which existed or was continuing on the date of the
commencement of any 90-day payment blockage period with respect to the Senior
Indebtedness initiating such payment blockage period shall be, or be made, the
basis for the commencement of a second payment blockage period by a Holder or
representative of such Senior Indebtedness whether or not within a period of 270
consecutive days unless such event of default shall have been cured or waived
for a period of not less than 90 consecutive days (and, in the case of any such
waiver, no payment shall be made by the Company to the holders of Senior
Indebtedness in connection with such waiver other than amounts due pursuant to
the terms of the Senior Indebtedness as in effect at the time of such default).
In the event that, notwithstanding the foregoing, the Trustee or the Holder
of any Security shall have received any payment or distribution of any kind or
character, whether in cash, property or securities, before all Senior
Indebtedness is paid in full or payment thereof provided for, and if such fact
shall then have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such payment or distribution shall be paid over
or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, agent or other Person making payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
Nothing in this Section shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
In addition, nothing in this Section shall prevent the Company from making
or the Trustee from receiving or applying any payment in connection with the
redemption of Securities if the first publication of notice of such redemption
(whether by mail or otherwise in accordance with this Indenture) has been made,
and the Trustee has received such payment from the Company, prior to the
occurrence of any of the contingencies specified in the first two paragraphs of
this Section.
SECTION 1303. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of
the Securities shall be subrogated (to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article) to the rights of the holders of such Senior
Indebtedness to receive payments or distributions from the Company applicable to
the Senior Indebtedness until the principal of (and premium, if any) and
interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness to which the holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments pursuant to
the provisions of this Article to the holders of Senior Indebtedness by Holders
of the Securities or the Trustee, shall, as between the Company, its creditors
other than holders of Senior
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Indebtedness, and the Holders of the Securities be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 1304. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one
hand, and the holders of Senior Indebtedness, on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as between the Company and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of (and premium, if any)
and interest on the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights against the Company of the Holders of the Securities and creditors of the
Company other than the holders of Senior Indebtedness, nor shall anything herein
or therein prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness to receive cash, property or securities of the Company
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1305. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof, whether upon original
issue or upon transfer or assignment, authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes.
SECTION 1306. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Holders of the Securities, without incurring
responsibility to the Holders of the Securities and without impairing or
releasing the subordination provided in this Article or the obligations of the
Holders of the Securities to the holders of Senior Indebtedness, do any one or
more of the following: (i) change the manner, place or terms of payment of, or
renew or alter, Senior Indebtedness, or otherwise amend or supplement in any
manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding, (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness, (iii) release any Person liable in any manner for
the collection of Senior Indebtedness, or (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
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SECTION 1307. Notice to Trustee.
The Company shall give prompt written notice to the Trustee in the form of
an Officers' Certificate of any fact known to the Company which would prohibit
the making of any payment of money to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article, unless and until the
Trustee shall have received at its Corporate Trust Office written notice thereof
from the Company or a holder or holders of Senior Indebtedness or from any
trustee therefor at least two Business Days prior to such payment date; and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, shall be entitled in all respects to assume that no
such facts exist.
Subject to the provisions of Section 601, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such notice has been given by a holder of Senior Indebtedness or
a trustee on behalf of any such holder. In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and, if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 1308. Reliance on Certificate of Liquidating Agent.
Upon any payment or distribution referred to in this Article, the Trustee,
subject to the provisions of Section 601, and the Holders of the Securities
shall be entitled to rely upon any order or decree entered by any court of
competent jurisdiction in which a dissolution, winding up or total or partial
liquidation or reorganization of the Company is pending, or a certificate of the
trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of the Securities for
the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 1309. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if it shall in
good faith mistakenly pay over or distribute to Holders of the Securities or to
the Company or to any other Person cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise.
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SECTION 1310. Rights of Trustee as Holder of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
SECTION 1311. Article Applicable to Paying Agent.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee; provided, however,
that this Section shall not apply to the Company or any Affiliate of the Company
if it or such Affiliate acts as Paying Agent.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all series may be called at
any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1401, to be held at such times
and at such place in New York, New York, as the Trustee shall determine. Notice
of every meeting of Holders of Securities of any series, setting forth the time
and the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section 106,
not less than 20 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the Outstanding
Securities of any series, shall have requested the Trustee for any such series
to call a meeting of the Holders of Securities of such series for any purpose
specified in Section 1401, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 30 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as
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the case may be, may determine the time and the place in New York, New York, for
such meeting and may call such meeting for such purposes by giving notice
thereof as provided in Subsection (a) of this Section.
SECTION 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing a proxy for a
Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 1404. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case, the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Subject to Section 1405(d), notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1402(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly that Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in aggregate principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent or waiver which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage that is less than a
majority in aggregate principal amount of the Outstanding Securities of a series
and may be adopted at a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative vote of the Holders of
such specified percentage in aggregate principal amount of the Outstanding
Securities of that series.
Except as limited by the proviso to Section 902, any resolution passed or
decision taken at any meeting of Holders of Securities of any series duly held
in accordance with this Section shall be binding on all the Holders of
Securities of such series, whether or not present or represented at the meeting.
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SECTION 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) The holdings of Securities shall be evidenced in the manner specified
in Section 104 and the appointment of any proxy shall be evidenced in the manner
specified in Section 104 or by having the signature of the person executing the
proxy witnessed or guaranteed by any trust company, bank or banker. Such
regulations may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1402(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall appoint a temporary chairman. A permanent chairman and
a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in aggregate principal amount of the Outstanding
Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series and each proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or as a proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1402 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached
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thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
--------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
INACOM CORP.
/s/ David C. Guenthner
By:________________________________
[SEAL] Name: David C. Guenthner
Title: Executive Vice President and
Attest: Chief Financial Officer
/s/ Michael E. Steffan
- --------------------------
Name: Michael E. Steffan
Title: Secretary
NORWEST BANK, MINNESOTA, NATIONAL
ASSOCIATION, TRUSTEE
/s/ Curtis D. Schwegman
By:______________________________
Name: Curtis D. Schwegman
Title: Assistant Vice President
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FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of November 4, 1997 (this
"Supplemental Indenture"), is between InaCom Corp., a corporation duly organized
and existing under the laws of the State of Delaware (the "Company"), having its
principal office at 10810 Farnam Drive, Omaha, Nebraska, 68154, and Norwest Bank
Minnesota, National Association, a national banking association (the "Trustee").
RECITALS
The Company and the Trustee are parties to that certain Indenture,
dated as of September 30, 1997, (the "Indenture"), pursuant to which the Company
is authorized to issue its debentures, notes or other evidences of indebtedness
(the "Securities") from time to time and in one or more series as provided
therein.
Sections 301 and 901 of the Indenture provide that the characteristics,
terms, rights, powers and other conditions of any such series of Securities may
be established, without the consent of any Holders, in one or more indentures
supplemental thereto.
The Company has not yet issued any Securities under the Indenture.
The Company desires to issue $75,000,000 of Securities in the form of a
series of 4.50% Convertible Subordinated Debentures Due November 1, 2004 (the
"4.50% Debentures") having the characteristics, terms, rights, powers and other
conditions set forth herein.
The Company has authorized the execution and delivery of this
Supplemental Indenture, pursuant to which the Indenture shall be supplemented
and modified as set forth herein.
All things necessary to make the 4.50% Debentures, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company and to make this Supplemental
Indenture a valid agreement of the Company, in accordance with their and its
terms, have been done.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the 4.50%
Debentures by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the 4.50% Debentures, as follows:
1. Definitions. Article One, Section 101 of the Indenture is hereby
supplemented and modified by inserting insert the following definitions in
alphabetical order in such Section.
"Change of Control" has the meaning specified in Section 1504(b).
<PAGE>
"Closing Price Per Share" means, with respect to the Common Stock of
the Company, for any day, the reported last sales price regular way per share
or, in case no such reported sale takes place on such day, the average of the
reported closing bid and asked prices regular way, in either case (i) on the New
York Stock Exchange or, if the Common Stock is not listed or admitted to trading
on the New York Stock Exchange, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading, or (ii) if not listed
on or admitted to trading on any national securities exchange then on the Nasdaq
National Market or (iii) if the Common Stock is not listed or admitted to
trading on any national securities exchange or quoted on such National Market,
the average of the closing bid and asked prices in the over-the-counter market
as furnished by any New York Stock Exchange member firm selected from time to
time by the Company for that purpose.
"Common Stock" means the Common Stock, par value $0.10 per share, of
the Company authorized at the date of this instrument as originally executed.
Subject to the provisions of Section 1411, shares issuable on conversion or
repurchase of 4.50% Debentures shall include only shares of Common Stock or
shares of any class or classes of common stock resulting from any
reclassification or reclassifications thereof; provided, however, that if at any
time there shall be more than one such resulting class, the shares so issuable
on conversion of 4.50% Debentures shall include shares of all such classes, and
the shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
"common stock" includes any stock of any class of capital stock which
has no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
issuer thereof and which is not subject to redemption by the issuer thereof.
"Company Notice" has the meaning specified in Section 1503.
"Constituent Person" has the meaning specified in Section 1411.
"Conversion Agent" means any Person authorized by the Company to
convert 4.50% Debentures in accordance with Article Fourteen. The Company has
initially appointed the Trustee as its Conversion Agent.
"Conversion Price" has the meaning specified in Section 1404.
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"Conversion Rate" has the meaning specified in Section 1401.
"Expiration Time" has the meaning specified in Section 1404.
"Non-electing Share" has the meaning specified in Section 1411.
"Place of Conversion" has the meaning specified in Section 1402.
"Reference Date" has the meaning specified in Section 1404.
"Repurchase Date" has the meaning specified in Section 1501.
"Repurchase Price" has the meaning specified in Section 1501.
"Trading Days" means (i) if the Common Stock is listed or admitted for
trading on any national securities exchange, days on which such national
securities exchange is open for business or (ii) if the Common Stock is not
listed or admitted for trading on any national securities exchange, days on
which trades may be made on the Nasdaq National Market or any similar system of
automated dissemination of quotations of securities prices on which the Common
Shares are quoted or (iii) if the Common Stock is not listed or admitted for
trading on any national securities exchange or quoted on the Nasdaq National
Market or any other system of automated dissemination of quotation of securities
prices, days on which the Common Stock is traded regular way in the
over-the-counter market and for which a closing bid and a closing asked price
for the Common Stock are available.
2. Form of 4.50% Debentures. Article Two, Section 201 of the Indenture is
hereby supplemented and modified by inserting the following language at the end
of such Section.
Any 4.50% Debentures which constitute Registered Securities shall be in
substantially the form set forth below.
Form of Face of 4.50% Debenture
[The following legend shall appear on the face of each Global Security for which
The Depository Trust Company is to be the Depositary:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER,
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PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR REGISTERED
SECURITIES IN DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED
TO IN THE INDENTURE, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OR SUCH
SUCCESSOR DEPOSITARY.]
INACOM CORP.
4.50% CONVERTIBLE SUBORDINATED DEBENTURE
DUE NOVEMBER 1, 2004
No. __________ $________
InaCom Corp., a corporation duly organized and existing under the laws
of Delaware (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to __________________, or registered assigns, the principal sum
of _____________________ Dollars ($_______) on November 1, 2004 and to pay
interest thereon from November 4, 1997 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually in
arrears on May 1 and November 1 in each year (each, an "Interest Payment Date"),
commencing May 1, 1998 at the rate of 4.50% per annum computed on the basis of a
360 day year consisting of twelve 30-day months, until the principal hereof is
due, and at the rate of 4.50% per annum on any overdue principal and premium, if
any, and, to the extent permitted by law, on any overdue interest. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the Person in whose name
this 4.50% Convertible Subordinated Debenture (herein individually called a
"Security" or a "4.50% Debenture" and, together with those other 4.50%
Convertible Subordinated Debentures Due November 1, 2004 collectively called the
"4.50% Debentures") (or one or more Predecessor Securities is registered at the
close of business on the Regular Record Date for such interest, which shall be
April 15 or October 15 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Except as otherwise provided in the
Indenture, any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Company, notice whereof shall be given to Holders of 4.50% Debentures not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any automated
quotation system or securities exchange on which the 4.50% Debentures may be
listed, and upon such notice as may be required by such quotation system
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or exchange, as the case may be, all as more fully provided in the Indenture.
Payments of principal shall be made upon the surrender of this Security at the
option of the Holder at the Corporate Trust Office of the Trustee, or at such
other office or agency of the Company as may be designated by it for such
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts; provided, however,
that at the option of the Company payment of interest may be made by check,
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register, or, upon written application by the Holder to
the Security Registrar.
Except as specifically provided in the Indenture, the Company shall not
be required to make any payment with respect to any tax, assessment or other
governmental charge imposed by any governmental or any political subdivision or
taxing authority thereof or therein.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
INACOM CORP.
[Corporate Seal]
By:____________________________________
Title:
Name:
Attest:
_________________________________
Title:
Form of Reverse of 4.50% Debenture
This Security is one of a duly authorized issue of 4.50% Debentures of
the Company designated as its 4.50% Convertible Subordinated Debentures Due
November 1, 2004 limited
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in aggregate principal amount to $75,000,000, as such amount may be increased,
but not by an amount in excess of $11,250,000, solely as a result of the
exercise of the underwriters' over-allotment option granted by the Company under
the underwriting agreement, dated October 29, 1997, among the Company, Goldman,
Sachs & Co., J.P. Morgan & Co., and PaineWebber Incorporated, issued and to be
issued under an Indenture, dated as of September 30, 1997, as supplemented and
modified by that certain First Supplemental Indenture, dated as of November 4,
1997 (as so supplemented and modified, herein called the "Indenture"), between
the Company and Norwest Bank Minnesota, National Association, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee, the holders of
Senior Indebtedness and the Holders of the 4.50% Debentures and of the terms
upon which the 4.50% Debentures are, and are to be, authenticated and delivered.
The 4.50% Debentures are issuable in registered form only without coupons in
denominations of $1,000 and any integral multiple thereof.
Subject to and upon compliance with the provisions of the Indenture,
the Holder of this Security is entitled, at his option, at any time before the
close of business on November 1, 2004 or in case this Security or a portion
hereof is called for redemption or the Holder hereof has exercised his right to
require the Company to repurchase this Security or a portion hereof, then in
respect of this Security until and including, but (unless the Company defaults
in making the payment due upon redemption or repurchase, as the case may be) not
after, the close of business on the Redemption Date or Repurchase Date, as the
case may be, to convert this Security (or any portion of the principal amount
hereof that is an integral multiple of $1,000, provided that the unconverted
portion of such principal amount is $1,000 or any integral multiple of $1,000 in
excess thereof) into fully paid and nonassessable shares of Common Stock of the
Company at an initial Conversion Rate of 25.2350 shares of Common Stock for each
$1,000 principal amount of 4.50% Debentures (or at the then current adjusted
Conversion Rate if an adjustment has been made as provided in the Indenture) by
surrender of this Security, duly endorsed or assigned to the Company or in blank
and, in case such surrender shall be made during the period from the close of
business on any Regular Record Date next preceding any Interest Payment Date to
the opening of business on such Interest Payment Date (except if this Security
has been called for redemption on a Redemption Date or is repurchasable on a
Repurchase Date occurring, in either case, during such period and is surrendered
for such conversion during such period (including any 4.50% Debentures or
portions thereof called for redemption on a Redemption Date that is a Regular
Record Date or an Interest Payment Date, as the case may be)), also accompanied
by payment in New York Clearing House or other funds acceptable to the Company
of an amount equal to the interest payable on such Interest Payment Date on the
principal amount of this Security then being converted, and also the conversion
notice hereon duly executed, to the Company at the Corporate Trust Office of the
Trustee, or at such other office or agency of the Company, subject to any laws
or regulations applicable thereto and subject to the right of the Company to
terminate the appointment of any Conversion Agent (as defined below) as may be
designated by it for such purpose in the Borough of Manhattan, The City of New
York, or at such other offices or agencies as the Company may designate (each a
"Conversion Agent"), provided further, that if this Security or portion hereof
has been called for redemption on a Redemption Date or is repurchasable on a
Repurchase Date
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occurring, in either case, during the period from the close of business on any
Regular Record Date next preceding any Interest Payment Date to the opening of
business on such succeeding Interest Payment Date and is surrendered for
conversion during such period, then the Holder of this Security who converts
this Security or a portion hereof during such period will be entitled to receive
the interest accruing hereon from the Interest Payment Date next preceding the
date of such conversion to such succeeding Interest Payment Date and shall not
be required to pay such interest upon surrender of this Security for conversion.
Subject to the provisions of the preceding sentence and, in the case of a
conversion after the close of business on the Regular Record Date next preceding
any Interest Payment Date and on or before the close of business on such
Interest Payment Date, to the right of the Holder of this Security (or any
Predecessor Security of record as of such Regular Record Date) to receive the
related installment of interest to the extent and under the circumstances
provided in the Indenture, no cash payment or adjustment is to be made on
conversion for interest accrued hereon from the Interest Payment Date next
preceding the day of conversion, or for dividends on the Common Stock issued on
conversion hereof. The Company shall thereafter deliver to the Holder the fixed
number of shares of Common Stock (together with any cash adjustment, as provided
in the Indenture) into which this Security is convertible and such delivery will
be deemed to satisfy the Company's obligation to pay the principal amount of
this Security. No fractions of shares or scrip representing fractions of shares
will be issued on conversion, but instead of any fractional interest (calculated
to the nearest 1/100th of a share) the Company shall pay a cash adjustment as
provided in the Indenture. The Conversion Rate is subject to adjustment as
provided in the Indenture. In addition, the Indenture provides that in the case
of certain consolidations or mergers to which the Company is a party or the
conveyance, transfer, sale or lease of all or substantially all of the property
and assets of the Company, the Indenture shall be amended, without the consent
of any Holders of 4.50% Debentures, so that this Security, if then Outstanding,
will be convertible thereafter, during the period this Security shall be
convertible as specified above, only into the kind and amount of securities,
cash and other property receivable upon such consolidation, merger, conveyance,
transfer, sale or lease by a holder of the number of shares of Common Stock of
the Company into which this Security could have been converted immediately prior
to such consolidation, merger, conveyance, transfer, sale or lease (assuming
such holder of Common Stock is not a Constituent Person, failed to exercise any
rights of election and received per share the kind and amount received per share
by a plurality of Non-electing Shares). No adjustment in the Conversion Rate
will be made until such adjustment would require an increase or decrease of at
least 1% of such Conversion Rate, provided that any adjustment that would
otherwise be made will be carried forward and taken into account in the
computation of any subsequent adjustment.
The 4.50% Debentures are subject to redemption upon not less than 20
nor more than 60 days' notice by mail, at any time on or after November 1, 2001,
as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount): If
redeemed during the 12-month period beginning November 1, of the years
indicated,
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Redemption
Year Price
2001 101.929%
2002 101.286%
2003 100.643%
2004 100.000%
and thereafter at a Redemption Price equal to 100% of the principal amount, in
each case together with accrued interest to the Redemption Date; provided,
however, that interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such 4.50% Debentures, or one
or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.
In the event of redemption, repurchase or conversion of this Security
in part only, a new Security for the unredeemed, unrepurchased or unconverted
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
In any case where the due date for the payment of the principal of,
premium, if any, or interest on a Security or the last day on which a Holder of
a Security has a right to convert his Security shall be, at any Place of Payment
or Place of Conversion, as the case may be, a day on which banking institutions
at such Place of Payment or Place of Conversion are authorized or obligated by
law or executive order to close, then payment of principal, premium, if any, or
interest, or delivery for conversion of such Security need not be made on or by
such date at such place but may be made on or by the next succeeding day at such
place which is not a day on which banking institutions are authorized or
obligated by law or executive order to close, with the same force and effect as
if made on the date for such payment or the date fixed for redemption or
repurchase, or by such last day for conversion, and no interest shall accrue on
the amount so payable for the period after such date so long as payment is made
on the next succeeding day at such place which is not a day on which banking
institutions are authorized or obligated by law or executive order to close.
If a Change of Control occurs, the Holder of this Security, at the
Holder's option, shall have the right, in accordance with the provisions of the
Indenture, to require the Company to repurchase this Security (or any portion of
the principal amount hereof that equal to $1,000 or any integral multiple of
$1,000 in excess thereof) for cash at a Repurchase Price equal to 100% of the
principal amount thereof plus interest accrued to the Repurchase Date. At the
option of the Company, the Repurchase Price may be paid in cash or, subject to
the conditions provided in the Indenture, by delivery of shares of Common Stock
having a fair market value equal to the Repurchase Price. For purposes of this
paragraph, the fair market value of shares of Common Stock shall be determined
by the Company and shall be equal to 95% of the average of the Closing Prices
Per Share for the five consecutive Trading Days ending on and including the
third Trading Day immediately preceding the Repurchase Date. Whenever in this
Security there is a reference, in any context, to the principal of any such
Security as of any time, such reference shall be deemed
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to include reference to the Repurchase Price payable in respect of such Security
to the extent that such Repurchase Price is, was or would be so payable at such
time, and express mention of the Repurchase Price in any provision of this
Security shall not be construed as excluding the Repurchase Price so payable in
those provisions of this Security when such express mention is not made;
provided, however, that, for the purposes of the next paragraph, such reference
shall be deemed to include reference to the Repurchase Price only to the extent
the Repurchase Price is payable in cash.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
If an Event of Default shall occur and be continuing, the principal of
all the 4.50% Debentures may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the 4.50% Debentures under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the 4.50%
Debentures at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the 4.50% Debentures at the time Outstanding, on behalf of the Holders of all
the 4.50% Debentures, to waive compliance by the Company with certain provisions
of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security on the respective Stated Maturities expressed herein
(or in the case of redemption or repurchase, on the Redemption Date or
Repurchase Date, as the case may be) or to convert this Security as provided in
the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default, the Holders of not
less than 25% in principal amount of the Outstanding 4.50% Debentures shall have
made written request to the Trustee to institute proceedings in respect
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of such Event of Default as Trustee and offered the Trustee indemnity
satisfactory to it and the Trustee shall not have received from the Holders of a
majority in principal amount of the 4.50% Debentures Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof, premium,
if any, or interest hereon on or after the respective due dates expressed herein
or for the enforcement of the right to convert this Security as provided in the
Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company maintained for that purpose pursuant to Section
1002, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new 4.50% Debentures, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee, and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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ABBREVIATIONS
The following abbreviations, when used in the inscription of the face
of this Security, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT--____________
TEN ENT - as tenants by the (Cust)
entireties Custodian ________ under Uniform
JT TEN - as joint tenants with right Minor)
of survivorship and not as Gifts to Minors Act ___________
tenants in common (State)
Additional abbreviations may also be used
though not in the above list.
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ELECTION OF HOLDER TO REQUIRE REPURCHASE
1. Pursuant to Section 1501 of the Indenture, the undersigned hereby elects
to have this Security repurchased by the Company.
2. The undersigned hereby directs the Trustee or the Company to pay it or
__________________ an amount in cash or, at the Company's election, Common Stock
valued as set forth in the Indenture, equal to 100% of the principal amount to
be repurchased (as set forth below), plus interest accrued to the Repurchase
Date, as provided in the Indenture.
Dated:
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Signature(s)
Signature(s) must be guaranteed by an Eligible Guarantor Institution
with membership in an approved signature guarantee program pursuant to
Rule 17Ad-15 under the Securities Exchange Act of 1934.
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Signature Guaranteed
Principal amount to be repurchased
(an integral multiple of $1,000): _______________________________
Remaining principal amount following such repurchase: ____________________
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
3. Form of Conversion Notice. Article Two of the Indenture is hereby
supplemented and modified by inserting the following Section 205 at the end of
such Article.
SECTION 205. Form of Conversion Notice.
The undersigned Holder of this Security hereby irrevocably exercises
the option to convert this Security, or any portion of the principal amount
hereof (which is an integral multiple of $1,000, provided that the unconverted
portion of such principal amount is $1,000
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or any integral multiple of $1,000 in excess thereof) below designated, into
shares of Common Stock in accordance with the terms of the Indenture referred to
in this Security, and directs that such shares, together with a check in payment
for any fractional share and any 4.50% Debentures representing any unconverted
principal amount hereof, be delivered to and be registered in the name of the
undersigned unless a different name has been indicated below. If shares of
Common Stock or 4.50% Debentures are to be registered in the name of a Person
other than the undersigned, (a) the undersigned will pay all transfer taxes
payable with respect thereto and (b) signature(s) must be guaranteed by an
Eligible Guarantor Institution with membership in an approved signature
guarantee program pursuant to Rule 17Ad-15 under the Securities Exchange Act of
1934. Any amount required to be paid by the undersigned on account of interest
accompanies this Security.
Dated:________________________ _______________________________
Fill in for registration of _______________________________
shares of Common Stock if to Signature(s)
be issued, and 4.50% Debentures if
to be delivered, other than
to and in the name of the
registered holder:
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(Name)
4. Title and Terms of 4.50% Debentures. Article Three, Section 301 of the
Indenture is hereby supplemented and modified by inserting the following
language at the end of such Section.
The aggregate principal amount of 4.50% Debentures which may be
authenticated and delivered under this Indenture is limited to $75,000,000, as
such amount may be increased, but not by an amount in excess of $11,250,000,
solely as a result of the purchase of additional 4.50% Debentures (referred to
in the Underwriting Agreement as "Optional Securities") pursuant to exercise of
the underwriters' over-allotment option granted by the Company under the
underwriting agreement, dated October 29, 1997 (the "Underwriting Agreement"),
among the Company, Goldman, Sachs & Co., J.P. Morgan & Co., and PaineWebber
Incorporated (collectively, the "Underwriters"), except for 4.50% Debentures
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other 4.50% Debentures pursuant to Section 304, 305, 306,
906, 1107, 1402 or 1503(e).
The 4.50% Debentures shall be known and designated as the "4.50%
Convertible Subordinated Debentures due November 1, 2004" of the Company. Their
Stated Maturity shall be November 1, 2004, and they shall bear interest at the
rate of 4.50% per annum, from November 4, 1997 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, as the case
may be, payable semi-annually in arrears on May 1 and November 1 in each year,
commencing May 1, 1998, until the principal thereof is paid
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or made available for payment, and, to the fullest extent permitted by law, at
the rate of 4.50% per annum on any overdue principal and on any overdue
installment of interest.
Upon receipt by the Trustee of an Officers' Certificate stating that
the Underwriters have elected to purchase from the Company a specified aggregate
principal amount of Optional Securities not to exceed a total of $11,250,000 for
all such elections in accordance with this paragraph pursuant to the
Underwriting Agreement, the Trustee shall authenticate and make available for
delivery such specified aggregate principal amount of such Optional Securities
to or upon a Company Request, and such specified aggregate principal amount of
such Optional Securities shall be considered part of the original aggregate
principal amount of the 4.50% Debentures.
The principal of (and premium, if any) and interest on the 4.50%
Debentures shall be payable at the office or agency of the Company maintained
for such purpose pursuant to Section 1002; provided, however, that at the option
of the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register.
The 4.50% Debentures shall be redeemable in accordance with Article
Eleven at the election of the Company, as a whole or from time to time in part,
at any time on or after November 1, 2001 at the Redemption Prices specified in
the form of Security set forth herein, together with accrued interest to the
Redemption Date.
The 4.50% Debentures are not entitled to the benefit of any sinking
fund.
The 4.50% Debentures shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Thirteen.
The 4.50% Debentures shall be convertible as provided in Article
Fourteen.
The 4.50% Debentures shall be subject to repurchase at the option of
the Holders upon a Change of Control as provided in Article Fifteen.
5. Conversion of 4.50% Debentures. The Indenture is hereby
supplemented and modified by inserting the following Article Fourteen therein.
ARTICLE FOURTEEN
CONVERSION OF 4.50% DEBENTURES
SECTION 1401. Conversion Privilege and Conversion Rate.
Subject to and upon compliance with the provisions of this Article, at
the option of the Holder thereof, any 4.50% Debenture may be converted at any
time into fully paid and nonassessable shares (calculated as to each conversion
to the nearest 1/100th of a share) of Common Stock of the Company at the
Conversion Rate, determined as hereinafter provided,
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in effect at the time of conversion. Such conversion right shall expire at the
close of business on November 1, 2004 subject, in the case of conversion of any
Global Security, to any Applicable Procedures. In case a 4.50% Debenture or
portion thereof is called for redemption at the election of the Company or the
Holder thereof exercises his right to require the Company to repurchase a 4.50%
Debenture or portion thereof, such conversion right in respect of such 4.50%
Debenture, shall expire (a) at the close of business on the Redemption Date, in
the case of a 4.50% Debenture called for redemption, and (b) at the close of
business on the Repurchase Date, in the case of a 4.50% Debenture tendered for
repurchase, in each case unless the Company defaults in making the payment due
upon redemption or repurchase, as the case may be, and in each case subject as
aforesaid to any Applicable Procedures with respect to any Global Security.
The rate at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Rate") shall be initially 25.2350
shares of Common Stock for each $1,000 principal amount of 4.50% Debentures. The
Conversion Rate shall be adjusted in certain instances as provided in this
Article.
SECTION 1402. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any 4.50%
Debenture to be converted shall surrender such 4.50% Debenture, duly endorsed or
assigned to the Company or in blank, at any office or agency of the Company
maintained for that purpose pursuant to Section 1002 (any city in which any
Conversion Agent is located being called herein a "Place of Conversion"),
accompanied by a duly signed conversion notice substantially in the form set
forth in Section 205 stating that the Holder elects to convert such 4.50%
Debenture or, if less than the entire principal amount thereof is to be
converted, the portion thereof to be converted. Each 4.50% Debenture surrendered
for conversion (in whole or in part) during the period from the close of
business on any Regular Record Date next preceding any Interest Payment Date to
the opening of business on such Interest Payment Date shall (except in the case
of any 4.50% Debenture or portion thereof which has been called for redemption
on a Redemption Date, or which is repurchasable on a Repurchase Date, occurring,
in either case, within such period) be accompanied by payment in New York
Clearing House funds or other funds acceptable to the Company of an amount equal
to the interest payable on such Interest Payment Date on the principal amount of
such 4.50% Debenture (or part thereof, as the case may be) being surrendered for
conversion. The interest so payable on such Interest Payment Date with respect
to any 4.50% Debenture (or portion thereof, if applicable) which has been called
for redemption on a Redemption Date, or is repurchasable on a Repurchase Date,
occurring, in either case, during the period from the close of business on any
Regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date, which 4.50% Debenture (or portion
thereof, if applicable) is surrendered for conversion during such period, shall
be paid to the Holder of such 4.50% Debenture being converted in an amount equal
to the interest that would have been payable on such 4.50% Debenture if such
4.50% Debenture had been converted as of the close of business on such Interest
Payment Date. The interest so payable on such Interest Payment Date in respect
of any 4.50% Debenture (or portion thereof, as the case may be) which has not
been called for redemption on a Redemption Date, or is not
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eligible for repurchase on a Repurchase Date, occurring, in either case, during
the period from the close of business on any Regular Record Date next preceding
any Interest Payment Date to the opening of business on such Interest Payment
Date, which 4.50% Debenture (or portion thereof, as the case may be) is
surrendered for conversion during such period, shall be paid to the Holder of
such 4.50% Debenture as of such Regular Record Date. Interest payable in respect
of any 4.50% Debenture surrendered for conversion on or after an Interest
Payment Date shall be paid to the Holder of such 4.50% Debenture as of the next
preceding Regular Record Date, notwithstanding the exercise of the right of
conversion. Except as provided in this paragraph and subject to the last
paragraph of Section 307, no cash payment or adjustment shall be made upon any
conversion on account of any interest accrued from the Interest Payment Date
next preceding the conversion date, in respect of any 4.50% Debenture (or part
thereof, as the case may be) surrendered for conversion, or on account of any
dividends on the Common Stock issued upon conversion. The Company's delivery to
the Holder of the number of shares of Common Stock (and cash in lieu of
fractions thereof, as provided in this Indenture) into which a 4.50% Debenture
is convertible will be deemed to satisfy the Company's obligation to pay the
principal amount of the 4.50% Debenture.
4.50% Debentures shall be deemed to have been converted immediately
prior to the close of business on the day of surrender of such 4.50% Debentures
for conversion in accordance with the foregoing provisions, and at such time the
rights of the Holders of such 4.50% Debentures as Holders shall cease, and the
Person or Persons entitled to receive the Common Stock issuable upon conversion
shall be treated for all purposes as the record holder or holders of such Common
Stock at such time. As promptly as practicable on or after the conversion date,
the Company shall issue and deliver to the Trustee, for delivery to the Holder,
a certificate or certificates for the number of full shares of Common Stock
issuable upon conversion, together with payment in lieu of any fraction of a
share, as provided in Section 1403.
In the case of any 4.50% Debenture which is converted in part only,
upon such conversion the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the Company, a
new 4.50% Debenture or 4.50% Debentures of authorized denominations in an
aggregate principal amount equal to the unconverted portion of the principal
amount of such 4.50% Debenture. A 4.50% Debenture may be converted in part, but
only if the principal amount of such 4.50% Debenture to be converted is any
integral multiple of $1,000 and the principal amount of such security to remain
Outstanding after such conversion is equal to $1,000 or any integral multiple of
$1,000 in excess thereof.
SECTION 1403. Fractions of Shares.
No fractional shares of Common Stock shall be issued upon conversion of
any 4.50% Debenture or 4.50% Debentures. If more than one 4.50% Debenture shall
be surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the 4.50% Debentures (or specified
portions thereof) so surrendered. Instead of any fractional share of Common
Stock which would otherwise be issuable upon conversion of
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any 4.50% Debenture or 4.50% Debentures (or specified portions thereof), the
Company shall calculate and pay a cash adjustment in respect of such fraction
(calculated to the nearest 1/100th of a share) in an amount equal to the same
fraction of the Closing Price Per Share at the close of business on the day of
conversion.
SECTION 1404. Adjustment of Conversion Rate.
The Conversion Rate shall be subject to adjustments from time to time
as follows:
(1) In case the Company shall pay or make a dividend or other
distribution on any class of capital stock of the Company payable in shares of
Common Stock, the Conversion Rate in effect at the opening of business on the
day following the date fixed for the determination of shareholders entitled to
receive such dividend or other distribution shall be increased by dividing such
Conversion Rate by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date fixed
for such determination and the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend or other
distribution, such increase to become effective immediately after the opening of
business on the day following the date fixed for such determination. For the
purposes of this paragraph (1), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but
shall include shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company will not pay any dividend or
make any distribution on shares of Common Stock held in the treasury of the
Company.
(2) In case the Company shall issue rights, options or warrants to all
holders of its Common Stock entitling them to subscribe for or purchase shares
of Common Stock at a price per share less than the current market price per
share (determined as provided in paragraph (8) of this Section) of the Common
Stock on the date fixed for the determination of stockholders entitled to
receive such rights, options or warrants, the Conversion Rate in effect at the
opening of business on the day following the date fixed for such determination
shall be increased by dividing such Conversion Rate by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination plus the number of shares
of Common Stock which the aggregate of the offering price of the total number of
shares of Common Stock so offered for subscription or purchase would purchase at
such current market price and the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such increase to become effective immediately after
the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (2), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The Company
will not issue any rights, options or warrants in respect of shares of Common
Stock held in the treasury of the Company.
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(3) In case outstanding shares of Common Stock shall be subdivided into
a greater number of shares of Common Stock, the Conversion Rate in effect at the
opening of business on the day following the day upon which such subdivision
becomes effective shall be proportionately increased, and, conversely, in case
outstanding shares of Common Stock shall each be combined into a smaller number
of shares of Common Stock, the Conversion Rate in effect at the opening of
business on the day following the day upon which such combination becomes
effective shall be proportionately reduced, such increase or reduction, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(4) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock evidences of its indebtedness, shares of any
class of capital stock, or other property (including securities, but excluding
(i) any rights, options or warrants referred to in paragraph (2) of this
Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any
dividend or distribution referred to in paragraph (1) of this Section and (iv)
any merger or consolidation to which Section 1411 applies), the Conversion Rate
shall be adjusted so that the same shall equal the rate determined by dividing
the Conversion Rate in effect immediately prior to the close of business on the
date fixed for the determination of stockholders entitled to receive such
distribution by a fraction of which the numerator shall be the current market
price per share (determined as provided in paragraph (8) of this Section) of the
Common Stock on the date fixed for such determination (the "Reference Date")
less the then fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution filed with
the Trustee) on the Reference Date of the portion of the assets, shares or
evidences of indebtedness so distributed applicable to one share of Common Stock
and the denominator shall be the current market price per share of the Common
Stock on the Reference Date, such adjustment to become effective immediately
prior to the opening of business on the day following the Reference Date.
(5) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock cash (excluding any cash that is distributed as
part of a distribution referred to in paragraph (4) of this Section) in an
aggregate amount that, combined together with (I) the aggregate amount of any
other cash distributions to all holders of its Common Stock made exclusively in
cash within the 12 months preceding the date of payment of such distribution and
in respect of which no adjustment pursuant to this paragraph (5) has been made
and (II) the aggregate of any cash plus the fair market value (as determined by
the Board of Directors, whose determination shall be conclusive and described in
a Board Resolution) of consideration payable in respect of any tender offer by
the Company or any of its Subsidiaries for all or any portion of the Common
Stock concluded within the 12 months preceding the date of payment of such
distribution and in respect of which no adjustment pursuant to paragraph (6) of
this Section) has been made (the "combined cash and tender amount"), exceeds 10%
of the product of the current market price per share (determined as provided in
paragraph (8) of this Section) of the Common Stock on the date for the
determination of holders of shares of Common Stock entitled to receive such
distribution times the number of shares of Common Stock outstanding on such date
(the "aggregate current market price"), then, and in each such case, immediately
after the close of business on such date for determination, the Conversion Rate
shall be adjusted so that the same shall
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equal the rate determined by dividing the Conversion Rate in effect immediately
prior to the close of business on the date fixed for determination of the
stockholders entitled to receive such distribution by a fraction (i) the
numerator of which shall be equal to the current market price per share
(determined as provided in paragraph (8) of this Section) of the Common Stock on
the date fixed for such determination less an amount equal to the quotient of
(x) the excess of such combined cash and tender amount over 10% of such
aggregate current market price divided by (y) the number of shares of Common
Stock outstanding on such date for determination and (ii) the denominator of
which shall be equal to the current market price per share (determined as
provided in paragraph (8) of this Section) of the Common Stock on such date for
determination.
(6) In case a tender offer made by the Company or any Subsidiary for
all or any portion of the Common Stock shall expire and such tender offer or
exchange (as amended upon the expiration thereof) shall require the payment to
stockholders (based on the acceptance (up to any maximum specified in the terms
of the tender offer) of Purchased Shares (as defined below)) of an aggregate
consideration having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution) that combined together with (I) the aggregate of the cash plus the
fair market value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution), as of the expiration
of such tender or exchange offer, of consideration payable in respect of any
other tender or exchange offer by the Company or any Subsidiary for all or any
portion of the Common Stock expiring within the 12 months preceding the
expiration of such tender or exchange offer and in respect of which no
adjustment pursuant to this paragraph (6) has been made and (II) the aggregate
amount of any cash distributions to all holders of the Company's Common Stock
within 12 months preceding the expiration of such tender or exchange offer and
in respect of which no adjustment pursuant to paragraph (5) of this Section has
been made (the "combined tender and cash amount") exceeds 10% of the product of
the current market price per share of the Common Stock (determined as provided
in paragraph (8) of this Section) as of the last time (the "Expiration Time")
tenders or exchanges could have been made pursuant to such tender or exchange
offer (as it may be amended) times the number of shares of Common Stock
outstanding (including any tendered or exchanged shares) as of the Expiration
Time, then, and in each such case, immediately prior to the opening of business
on the day after the date of the Expiration Time, the Conversion Rate shall be
adjusted so that the same shall equal the rate determined by dividing the
Conversion Rate immediately prior to close of business on the date of the
Expiration Time by a fraction (i) the numerator of which shall be equal to (A)
the product of (I) the current market price per share of the Common Stock
(determined as provided in paragraph (8) of this Section) on the date of the
Expiration Time multiplied by (II) the number of shares of Common Stock
outstanding (including any tendered or exchanged shares) on the date of the
Expiration Time less (B) the combined tender and cash amount, and (ii) the
denominator of which shall be equal to the product of (A) the current market
price per share of the Common Stock (determined as provided in paragraph (8) of
this Section) as of the Expiration Time multiplied by (B) the number of shares
of Common Stock outstanding (including any tendered or exchanged shares) as of
the Expiration Time less the number of all shares validly tendered or exchanged
and not withdrawn as of the Expiration Time (the shares deemed so accepted up to
any such maximum, being referred to as the "Purchased Shares").
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(7) The reclassification of Common Stock into securities other than
Common Stock (other than any reclassification upon a consolidation or merger to
which Section 1411 applies) shall be deemed to involve (a) a distribution of
such securities other than Common Stock to all holders of Common Stock (and the
effective date of such reclassification shall be deemed to be "the date fixed
for the determination of stockholders entitled to receive such distribution" and
"the date fixed for such determination" within the meaning of paragraph (4) of
this Section), and (b) a subdivision or combination, as the case may be, of the
number of shares of Common Stock outstanding immediately prior to such
reclassification into the number of shares of Common Stock outstanding
immediately thereafter (and the effective date of such reclassification shall be
deemed to be "the day upon which such subdivision becomes effective" or "the day
upon which such combination becomes effective", as the case may be, and "the day
upon which such subdivision or combination becomes effective" within the meaning
of paragraph (3) of this Section).
(8) For the purpose of any computation under paragraphs (2), (4), (5)
or (6) of this Section, the current market price per share of Common Stock on
any date shall be calculated by the Company and be deemed to be the average of
the daily Closing Prices Per Share for the five consecutive Trading Days
selected by the Company commencing not more than 10 Trading Days before, and
ending not later than, the earlier of the day in question and the day before the
"ex" date with respect to the issuance or distribution requiring such
computation. For purposes of this paragraph, the term "'ex' date", when used
with respect to any issuance or distribution, means the first date on which the
Common Stock trades regular way in the applicable securities market or on the
applicable securities exchange without the right to receive such issuance or
distribution.
(9) No adjustment in the Conversion Rate shall be required unless such
adjustment (plus any adjustments not previously made by reason of this paragraph
(9)) would require an increase or decrease of at least 1% in such rate;
provided, however, that any adjustments which by reason of this paragraph (9)
are not required to be 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 one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for
the remaining term of the 4.50% Debentures or any shorter term, in addition to
those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as
it considers to be advisable in order to avoid or diminish any income tax to any
holders of shares of Common Stock resulting from any dividend or distribution of
stock or issuance of rights or warrants to purchase or subscribe for stock or
from any event treated as such for income tax purposes. The Company shall have
the power to resolve any ambiguity or correct any error in this paragraph (10)
and its actions in so doing shall, absent manifest error, be final and
conclusive.
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SECTION 1405. Notice of Adjustments of Conversion Rate.
Whenever the Conversion Rate is adjusted as herein provided:
(1) the Company shall compute the adjusted Conversion Rate in
accordance with Section 1404 and shall prepare a certificate signed by
the principal accounting or financial officer of the Company setting
forth the adjusted Conversion Rate and showing in reasonable detail the
facts upon which such adjustment is based, and such certificate shall
promptly be filed with the Trustee and with each Conversion Agent; and
(2) a notice stating that the Conversion Rate has been
adjusted and setting forth the adjusted Conversion Rate shall forthwith
be prepared, and as soon as practicable after it is prepared, such
notice shall be provided by the Company, or the Company shall cause
such notice to be provided by the Trustee to, all Holders in accordance
with Section 106.
Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate or the information and
calculations contained therein, except to exhibit the same to any Holder of
4.50% Debentures desiring inspection thereof at its office during normal
business hours.
SECTION 1406. Notice of Certain Corporate Action.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable (i) otherwise than
exclusively in cash or (ii) exclusively in cash in an amount that would
require any adjustment pursuant to Section 1404; or
(b) the Company shall authorize the granting to the holders of
its Common Stock generally of rights, options or warrants to subscribe
for or purchase any shares of capital stock of any class or of any
other rights; or
(c) of any reclassification of the Common Stock of the
Company, or of any consolidation, merger or share exchange to which the
Company is a party and for which approval of any stockholders of the
Company is required, or of the conveyance, sale, transfer or lease of
all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
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(e) the Company or any Subsidiary shall commence a tender
offer for all or a portion of the Company's outstanding shares of
Common Stock (or shall amend any such tender offer);
then the Company shall cause to be filed, or the Company shall cause the Trustee
to cause to be filed, at each office or agency maintained for the purpose of
conversion of 4.50% Debentures pursuant to Section 1002, and the Company shall
cause to be provided, or the Company shall cause the Trustee to cause to be
provided, to all Holders in accordance with Section 106, at least 20 days (or 10
days in any case specified in clause (a) or (b) above) prior to the applicable
record, expiration or effective date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend,
distribution, rights, options or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution, rights, options or warrants are to be determined,
(y) the date on which the right to make tenders under such tender offer expires
or (z) the date on which such reclassification, consolidation, merger,
conveyance, transfer, sale, lease, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, conveyance, transfer, sale, lease,
dissolution, liquidation or winding up. Neither the failure to give such notice
or the notice referred to in the following paragraph nor any defect therein
shall affect the legality or validity of the proceedings described in clauses
(a) through (e) of this Section 1406. If at the time the Trustee shall not be a
Conversion Agent, a copy of such notice shall also forthwith be filed by the
Company with the Trustee.
The preceding paragraph to the contrary notwithstanding, the Company
shall cause to be filed, or the Company shall cause the Trustee to cause to be
filed, at each office or agency maintained for the purpose of conversion of
4.50% Debentures pursuant to Section 1002, and the Company shall cause to be
provided, or the Company shall cause the Trustee to cause to be provided, to all
Holders in accordance with Section 106, notice of any tender offer by the
Company or any Subsidiary for all or any portion of the Common Stock on or after
the time that such notice of tender offer is provided to the public generally.
SECTION 1407. Company to Reserve Common Stock.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of 4.50% Debentures, the full number of
shares of Common Stock then issuable upon the conversion of all Outstanding
4.50% Debentures.
SECTION 1408. Taxes on Conversions.
Except as provided in the next sentence, the Company will pay any and
all taxes and duties that may be payable in respect of the issue or delivery of
shares of Common Stock on conversion of 4.50% Debentures pursuant hereto. The
Company shall not, however, be
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required to pay any tax or duty which may be payable in respect of (i) income of
the holder or (ii) any transfer involved in the issue and delivery of shares of
Common Stock in a name other than that of the Holder of the 4.50% Debenture or
4.50% Debentures to be converted, and no such issue or delivery shall be made
unless and until the Person requesting such issue has paid to the Company the
amount of any such tax or duty, or has established to the satisfaction of the
Company that such tax or duty has been paid.
SECTION 1409. Covenant as to Common Stock.
The Company agrees that all shares of Common Stock which may be
delivered upon conversion of 4.50% Debentures will be newly issued shares and,
upon such delivery, will have been duly authorized and validly issued and will
be fully paid and nonassessable and, except as provided in Section 1408, the
Company will pay all taxes, liens and charges with respect to the issue thereof.
SECTION 1410. Cancellation of Converted 4.50% Debentures.
All 4.50% Debentures delivered for conversion shall be delivered to the
Trustee to be canceled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 309.
SECTION 1411. Provision in Case of Consolidation, Merger or Sale of Assets.
In case of any consolidation or merger of the Company with or into any
other Person, any merger of another Person with or into the Company (other than
a merger which does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock of the Company) or any
conveyance, sale, transfer or lease of all or substantially all of the assets of
the Company, the Person formed by such consolidation or resulting from such
merger or which acquires such assets, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture providing that the Holder of
each 4.50% Debenture then Outstanding shall have the right thereafter, during
the period such 4.50% Debenture shall be convertible as specified in Section
1401, to convert such 4.50% Debenture only into the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
conveyance, sale, transfer or lease by a holder of the number of shares of
Common Stock of the Company into which such 4.50% Debenture might have been
converted immediately prior to such consolidation, merger, conveyance, sale,
transfer or lease, assuming such holder of Common Stock of the Company (i) is
not a Person with which the Company consolidated or merged with or into or which
merged into or with the Company or to which such conveyance, sale, transfer or
lease was made, as the case may be ("Constituent Person"), or an Affiliate of a
Constituent Person and (ii) failed to exercise his rights of election, if any,
as to the kind or amount of securities, cash and other property receivable upon
such consolidation, merger, conveyance, sale, transfer or lease (provided that
if the kind or amount of securities, cash and other property receivable upon
such consolidation, merger, conveyance, sale, transfer, or lease is not the same
for each
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share of Common Stock of the Company held immediately prior to such
consolidation, merger, conveyance, sale, transfer or lease by others than a
Constituent Person or an Affiliate thereof and in respect of which such rights
of election shall not have been exercised ("Non-electing Share"), then for the
purpose of this Section the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, conveyance, sale, transfer
or lease by the holders of each Non-electing Share shall be deemed to be the
kind and amount so receivable per share by a plurality of the Non-electing
Shares). Such supplemental indenture shall provide for adjustments which, for
events subsequent to the effective date of such supplemental indenture, shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Article. The above provisions of this Section shall similarly apply to
successive consolidations, mergers, conveyances, sales, transfers or leases.
Notice of the execution of such a supplemental indenture shall be given by the
Company, or the Company shall cause the Trustee to give such notice, to the
Holder of each 4.50% Debenture as provided in Section 106 promptly upon such
execution.
Neither the Trustee, any Paying Agent nor any Conversion Agent shall be
under any responsibility to determine the correctness of any provisions
contained in any such supplemental indenture relating either to the kind or
amount of shares of stock or other securities or property or cash receivable by
Holders of 4.50% Debentures upon the conversion of their 4.50% Debentures after
any such consolidation, merger, conveyance, transfer, sale or lease or to any
such adjustment, but may accept as conclusive evidence of the correctness of any
such provisions, and shall be protected in relying upon, an Opinion of Counsel
with respect thereto, which the Company shall cause to be furnished to the
Trustee upon request.
SECTION 1412. Responsibility of Trustee for Conversion Provisions.
The Trustee, subject to the provisions of Article Six, and any
Conversion Agent shall not at any time be under any duty or responsibility to
any Holder of 4.50% Debentures to determine whether any facts exist which may
require any adjustment of the Conversion Rate, or with respect to the nature or
extent of any such adjustment when made, or with respect to the method employed,
or herein or in any supplemental indenture provided to be employed, in making
the same, or whether a supplemental indenture need be entered into. Neither the
Trustee, subject to the provisions of Article Six, nor any Conversion Agent
shall be accountable with respect to the validity or value (or the kind or
amount) of any Common Stock, or of any other securities or property or cash,
which may at any time be issued or delivered upon the conversion of any 4.50%
Debenture; and it or they do not make any representation with respect thereto.
Neither the Trustee, subject to the provisions of Article Six, nor any
Conversion Agent shall be responsible for any failure of the Company to make or
calculate any cash payment or to issue, transfer or deliver any shares of Common
Stock or share certificates or other securities or property or cash upon the
surrender of any 4.50% Debenture for the purpose of conversion; and the Trustee,
subject to the provisions of Article Six, and any Conversion Agent shall not be
responsible for any failure of the Company to comply with any of the covenants
of the Company contained in this Article.
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6. Repurchase of 4.50% Debentures. The Indenture is hereby supplemented and
modified by inserting the following Article Fifteen therein.
ARTICLE FIFTEEN
REPURCHASE OF 4.50% DEBENTURES AT THE OPTION OF THE
HOLDER UPON A CHANGE OF CONTROL
SECTION 1501. Right to Require Repurchase.
In the event that a Change of Control (as hereinafter defined) shall
occur, then each Holder shall have the right, at the Holder's option, but
subject to the provisions of Section 1502, to require the Company to repurchase,
and upon the exercise of such right the Company shall repurchase, all of such
Holder's 4.50% Debentures, or any portion of the principal amount thereof that
is equal to $1,000 or any integral multiple of $1,000 in excess thereof, on the
date (the "Repurchase Date") that is 45 days after the date of the Company
Notice (as defined in Section 1503) at a purchase price equal to 100% of the
principal amount of the 4.50% Debentures to be repurchased plus interest accrued
to the Repurchase Date (the "Repurchase Price"); provided, however, that
installments of interest on 4.50% Debentures whose Stated Maturity is on or
prior to the Repurchase Date shall be payable to the Holders of such 4.50%
Debentures, or one or more Predecessor 4.50% Debentures, registered as such at
the close of business on the relevant Record Date according to their terms and
the provisions of Section 307. Such right to require the repurchase of the 4.50%
Debentures shall not continue after a discharge of the Company from its
obligations with respect to the 4.50% Debentures in accordance with Article
Four, unless a Change of Control shall have occurred prior to such discharge. At
the option of the Company, the Repurchase Price may be paid (i) subject to the
provisions of Section 1502(B) in cash, or (ii) subject to the fulfillment by the
Company of the conditions set forth in Section 1502(A), by delivery of shares of
Common Stock having a fair market value equal to the Repurchase Price; provided,
however, that failure of the Company to pay the Repurchase Price on the
Repurchase Date either in cash or by delivery of shares of Common Stock shall
constitute an Event of Default for purposes of Section 501(1) hereof
notwithstanding the Company's inability to comply with the provisions of or
satisfy any conditions set forth in Section 1502. Whenever in this Indenture
(including Sections 202, 301, 501(1) and 508) there is a reference, in any
context, to the principal of any Security (including, any 4.50% Debenture) as of
any time, such reference shall be deemed to include reference to the Repurchase
Price payable in respect of such Security to the extent that such Repurchase
Price is, was or would be so payable at such time, and express mention of the
Repurchase Price in any provision of this Indenture shall not be construed as
excluding the Repurchase Price in those provisions of this Indenture when such
express mention is not made; provided, however, that for the purposes of Article
Thirteen such reference shall be deemed to include reference to the Repurchase
Price only to the extent the Repurchase Price is payable in cash.
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SECTION 1502.Conditions to the Company's Election to Pay the Repurchase Price in
Common Stock or Cash.
(A) The Company may elect to pay the Repurchase Price by delivery of
shares of Common Stock pursuant to Section 1501 if and only if the following
conditions shall have been satisfied:
(i) The shares of Common Stock deliverable in payment of the Repurchase
Price shall have a fair market value as of the Repurchase Date of not less than
the Repurchase Price. For purposes of this Section, the fair market value of
shares of Common Stock shall be determined by the Company and shall be equal to
95% of the average of the Closing Prices Per Share for the five consecutive
Trading Days ending on and including the third Trading Day immediately preceding
the Repurchase Date;
(ii) The shares of Common Stock deliverable in payment of the
Repurchase Price are, or shall have been, approved for quotation on the Nasdaq
National Market or are, or shall have been, listed on a national securities
exchange, in either case, prior to the Repurchase Date; and
(iii) All shares of Common Stock deliverable in payment of the
Repurchase Price shall be issued out of the Company's authorized but unissued
Common Stock and, will upon issue, be duly and validly issued and fully paid and
nonassessable and free of any preemptive rights.
If all of the conditions set forth in this Section 1502(A) are not
satisfied in accordance with the terms thereof, the Repurchase Price shall be
paid by the Company only in cash.
(B) The Company may elect to pay the Repurchase Price in cash if and
only if on or prior to the Repurchase Date there shall not remain any amounts
outstanding under or with respect to the Senior Indebtedness of the Company.
SECTION 1503. Notices; Method of Exercising Repurchase Right, Etc.
(a) Unless the Company shall have theretofore called for redemption all
of the Outstanding 4.50% Debentures or unless all of the Outstanding 4.50%
Debentures shall have theretofore been converted in accordance with Article
Thirteen, on or before the 30th day after the occurrence of a Change of Control,
the Company or, at the request and expense of the Company on or before the 15th
day after such occurrence, the Trustee, shall give to all Holders, in the manner
provided in Section 106, notice (the "Company Notice") of the occurrence of the
Change of Control and of the repurchase right set forth herein arising as a
result thereof. The Company shall also deliver a copy of such notice of a
repurchase right to the Trustee.
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Each notice of a repurchase right shall state:
(1) the Repurchase Date,
(2) the date by which the repurchase right must be exercised,
(3) the Repurchase Price, and whether the Repurchase Price shall be paid
by the Company in cash or by delivery of shares of Common Stock,
(4) a description of the procedure which a Holder must follow
to exercise a repurchase right, and the place or places where such
4.50% Debentures are to be surrendered for payment of the Repurchase
Price and accrued interest, if any,
(5) that on the Repurchase Date the Repurchase Price, including
accrued interest, if any, will become due and payable upon each
such 4.50% Debenture designated by the Holder to be repurchased, and
that interest thereon shall cease to accrue on and after said date,
(6) the Conversion Rate then in effect, the date on which the right to
convert the principal amount of the 4.50% Debentures to be
repurchased will terminate and the place or places where such 4.50%
Debentures may be surrendered for conversion, and
(7) the place or places that the form of certificate required
by Section 201 shall be delivered, and the form of such certificate.
No failure of the Company to give the foregoing notices or defect
therein shall limit any Holder's right to exercise a repurchase right or affect
the validity of the proceedings for the repurchase of 4.50% Debentures.
If any of the foregoing provisions or other provisions of this Article
are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a Holder shall deliver to the
Trustee or any Paying Agent on or before the 30th day after the date of the
Company Notice (i) written notice of the Holder's exercise of such right, which
notice shall set forth the name of the Holder, the principal amount of the 4.50%
Debentures to be repurchased (and, if any 4.50% Debenture is to be repurchased
in part, the portion of the principal amount thereof to be repurchased and the
name of the Person in which the portion thereof to remain Outstanding after such
repurchase is to be registered) and a statement that an election to exercise the
repurchase right is being made thereby, and, in the event that the Repurchase
Price shall be paid in shares of Common Stock, the name or names (with
addresses) in which the certificate or certificates for shares of Common Stock
shall be issued, and (ii) the 4.50% Debentures with respect to which the
repurchase right is being exercised. Such written notice shall be irrevocable,
except that the right of the Holder to convert the 4.50% Debentures with respect
to which the repurchase right is being exercised shall continue until the close
of business on the Repurchase Date.
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<PAGE>
(c) In the event a repurchase right shall be exercised in accordance
with the terms hereof, the Company shall pay or cause to be paid to the Trustee
or the Paying Agent the Repurchase Price in cash or shares of Common Stock, as
provided above, for payment to the Holder on the Repurchase Date or, if shares
of Common Stock are to be paid, as promptly after the Repurchase Date as
practicable, together with accrued and unpaid interest to the Repurchase Date
payable with respect to the 4.50% Debentures as to which the purchase right has
been exercised; provided, however, that installments of interest that mature on
or prior to the Repurchase Date shall be payable in cash to the Holders of such
4.50% Debentures, or one or more Predecessor 4.50% Debentures, registered as
such at the close of business on the relevant Regular Record Date according to
the terms and provisions of Section 307.
(d) If any 4.50% Debenture (or portion thereof) surrendered for
repurchase shall not be so paid on the Repurchase Date by the Company, the
principal amount of such 4.50% Debenture (or portion thereof, as the case may
be) shall, until paid, bear interest to the extent permitted by applicable law
from the Repurchase Date at the rate of 4.50% per annum, and each 4.50%
Debenture shall remain convertible into Common Stock until the principal of such
4.50% Debenture (or portion thereof, as the case may be) shall have been paid or
duly provided for.
(e) Any 4.50% Debenture which is to be repurchased only in part shall
be surrendered to the Trustee (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such 4.50%
Debenture without service charge, a new 4.50% Debenture or 4.50% Debentures,
containing identical terms and conditions, each in an authorized denomination in
aggregate principal amount equal to and in exchange for the unrepurchased
portion of the principal of the 4.50% Debenture so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase
Price shall be deemed to have been effected immediately prior to the close of
business on the Repurchase Date and the Person or Persons in whose name or names
any certificate or certificates for shares of Common Stock shall be issuable
upon such repurchase shall be deemed to have become on the Repurchase Date the
holder or holders of record of the shares represented thereby; provided,
however, that any surrender for repurchase on a date when the stock transfer
books of the Company shall be closed shall constitute the Person or Persons in
whose name or names the certificate or certificates for such shares are to be
issued as the record holder or holders thereof for all purposes at the opening
of business on the next succeeding day on which such stock transfer books are
open. No payment or adjustment shall be made for dividends or distributions on
any Common Stock issued upon repurchase of any 4.50% Debenture declared prior to
the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of 4.50%
Debentures. If more than one 4.50% Debenture shall be repurchased from the same
Holder and the Repurchase Price shall be payable in shares of Common Stock, the
number of full shares which shall be issuable upon such repurchase shall be
computed on the basis of the aggregate
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<PAGE>
principal amount of the 4.50% Debentures so repurchased. Instead of any
fractional share of Common Stock which would otherwise be issuable on the
repurchase of any 4.50% Debenture or 4.50% Debentures, the Company will deliver
to the applicable Holder its check for the current market value of such
fractional share. The current market value of a fraction of a share is
determined by multiplying the current market price of a full share by the
fraction, and rounding the result to the nearest cent. For purposes of this
Section, the current market price of a share of Common Stock is the Closing
Price Per Share of the Common Stock on the Trading Day immediately preceding the
Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common
Stock on repurchase of 4.50% Debentures shall be made without charge to the
Holder of 4.50% Debentures being repurchased for such certificates or for any
tax or duty in respect of the issuance or delivery of such certificates or the
securities represented thereby; provided, however, that the Company shall not be
required to pay any tax or duty which may be payable in respect of (i) income of
the Holder or (ii) any transfer involved in the issuance or delivery of
certificates for shares of Common Stock in a name other than that of the Holder
of the 4.50% Debentures being repurchased, and no such issuance or delivery
shall be made unless and until the Person requesting such issuance or delivery
has paid to the Company the amount of any such tax or duty or has established,
to the satisfaction of the Company, that such tax or duty has been paid.
(i) All 4.50% Debentures delivered for repurchase shall be delivered to
the Trustee, the Paying Agent or any other agents (as shall be set forth in the
Company Notice) to be canceled by or at the direction of the Trustee, which
shall dispose of the same as provided in Section 309.
SECTION 1504. Certain Definitions.
For purposes of this Article,
(a) the term "beneficial owner" shall be determined in accordance with Rule
13d-3, as in effect on the date of the original execution of this Indenture,
promulgated by the Commission pursuant to the Exchange Act;
(b) a "Change of Control" shall be deemed to have occurred at the time,
after the original issuance of the 4.50% Debentures, of:
(i) the acquisition by any Person of beneficial ownership, directly
or indirectly, through a purchase, merger or other acquisition
transaction or series of transactions, of shares of capital stock
of the Company entitling such person to exercise 50% or more of
the total voting power of all shares of capital stock of the
Company entitled to vote generally in the elections of directors
(any shares of voting stock of which such person or group is the
beneficial owner that are not then outstanding being deemed
outstanding for purposes of calculating such percentage), other
than any such acquisition by the Company, any Subsidiary
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<PAGE>
of the Company or any employee benefit plan of the Company existing on the
date of this Indenture; or
(ii) any consolidation or merger of the Company with or into any other
Person, any merger of another Person into the Company, or any
conveyance, sale, transfer, or lease of all or substantially all
of the assets (other than (a) any such transaction (x) which does
not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock, and (y)
pursuant to which the holders of 50% or more of the total voting
power of all shares of capital stock of the Company entitled to
vote generally in elections of directors immediately prior to
such transaction have the entitlement to exercise, directly or
indirectly, 50% or more of the total voting power of all shares
of capital stock of the continuing or surviving corporation
entitled to vote generally in elections of directors of the
continuing or surviving corporation immediately after such
transaction and (b) a merger which is effected solely to change
the jurisdiction of incorporation of the Company and results in a
reclassification, conversion or exchange of outstanding shares of
Common Stock into solely shares of common stock);
provided, however, that a Change of Control shall not be deemed to have occurred
if the Closing Price Per Share on any five Trading Days within the period of 10
consecutive Trading Days ending immediately after the later of the date of the
Change of Control or the date of the public announcement of the Change of
Control (in the case of a Change of Control under Clause (i) above) or the
period of 10 consecutive Trading Days ending immediately prior to the date of
the Change of Control (in the case of a Change of Control under Clause (ii)
above) shall equal or exceed 105% of the Conversion Price in effect on each such
Trading Day.
(c) the term "Conversion Price" shall equal $1,000 divided by the Conversion
Rate; and
(d) for the purposes of Section 1504(b)(i), the term "Person" shall
include any syndicate or group which would be deemed to be a "person" under
Section 13(d)(3) of the Exchange Act, as in effect on the date of the original
execution of this Indenture.
SECTION 1505. Consolidation, Merger, Etc.
In the case of any conveyance, sale, transfer, lease, or merger, to
which Section 1411 applies, in which the Common Stock of the Company is changed
or exchanged as a result into the right to receive shares of stock and other
securities or property or assets (including cash) which includes shares of
Common Stock of the Company or common stock of another person that are, or upon
issuance will be, traded on a United States national securities exchange or
approved for trading on an established automated over-the-counter trading market
in the United States and such shares constitute at the time such change or
exchange becomes effective in excess of 50% of the aggregate fair market value
of such shares of stock and other securities, property and assets (including
cash) (as determined by
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<PAGE>
the Company, which determination shall be conclusive and binding), then the
person formed by such consolidation or resulting from such merger or combination
or which acquires the properties or assets (including cash) of the Company, as
the case may be, shall execute and deliver to the Trustee a supplemental
indenture (which shall comply with the Trust Indenture Act as in force at the
date of execution of such supplemental indenture) modifying the provisions of
this Indenture relating to the right of Holders to cause the Company to
repurchase the 4.50% Debentures following a Change of Control, including,
without limitation, the applicable provisions of this Article and the
definitions of the Common Stock and Change of Control, as appropriate, and such
other related definitions set forth herein as determined in good faith by the
Company (which determination shall be conclusive and binding), to make such
provisions apply to the common stock and the issuer thereof if different from
the Company and Common Stock of the Company (in lieu of the Company and the
Common Stock of the Company).
7. Effect of Supplemental Indenture. This Supplemental Indenture
supplements and modifies the Indenture only with respect to, and for purposes of
establishing the characteristics, terms, rights, powers and other conditions of,
the 4.50% Debentures; it does not supplement, modify or otherwise affect the
Indenture with respect to any other Securities. Upon execution hereof, this
Supplemental Indenture shall, upon execution, supplement and modify, and form a
part of, the Indenture with respect to the 4.50% Debentures which shall, where
applicable, be treated as a series of Securities for purposes of and under the
Indenture, and the Indenture, as modified by this Supplemental Indenture, shall
thereafter be read, taken and construed as one and the same instrument with
respect to the 4.50% Debentures.
8. Acceptance by Trustee. The Trustee accepts the modification of the
Indenture effected by this Supplemental Indenture, but only upon the terms and
conditions set forth in the Indenture.
9. Trust Indenture Act. If and to the extent that any provision of this
Supplemental Indenture limits, qualifies or conflicts with another provision
included in this Supplemental Indenture or in the Indenture, which provision is
required to be included in this Supplemental Indenture or the Indenture by any
of the provisions of Section 310 to 317, inclusive, of the Trust Indenture Act
of 1939, as amended, such required provision of the Trust Indenture Act of 1939,
as amended, shall control.
10. Governing Law. This Supplemental Indenture shall be deemed to be a
contract made under the laws of the State of New York and for all purposes shall
be governed by and construed in accordance with the laws of such State.
--------------------
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<PAGE>
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
INACOM CORP.
/s/ Dave C. Guenthner
By:_____________________________
[SEAL] Name: David C. Guenthner
Title: Executive Vice President
& Chief Financial Officer
Attest:
/s/ Leon Kerkman
Name: Leon Kerkman
Title: Corporate Controller
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, TRUSTEE
By:_____________________________
Name:
Title:
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<PAGE>
Exhibit 4.3
Form of Face of 4.50% Debenture
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR REGISTERED
SECURITIES IN DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED
TO IN THE INDENTURE, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OR SUCH
SUCCESSOR DEPOSITARY.
<PAGE>
INACOM CORP.
4.50% CONVERTIBLE SUBORDINATED DEBENTURE
DUE NOVEMBER 1, 2004
CUSIP Number 45323G AC 3 $75,000,000
InaCom Corp., a corporation duly organized and existing under the laws
of Delaware (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum of
Seventy-Five Million Dollars ($75,000,000) on November 1, 2004 and to pay
interest thereon from November 4, 1997 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually in
arrears on May 1 and November 1 in each year (each, an "Interest Payment Date"),
commencing May 1, 1998 at the rate of 4.50% per annum computed on the basis of a
360 day year consisting of twelve 30-day months, until the principal hereof is
due, and at the rate of 4.50% per annum on any overdue principal and premium, if
any, and, to the extent permitted by law, on any overdue interest. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the Person in whose name
this 4.50% Convertible Subordinated Debenture (herein individually called a
"Security" or a "4.50% Debenture" and, together with those other 4.50%
Convertible Subordinated Debentures Due November 1, 2004 collectively called the
"4.50% Debentures") (or one or more Predecessor Securities is registered at the
close of business on the Regular Record Date for such interest, which shall be
April 15 or October 15 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Except as otherwise provided in the
Indenture, any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Company, notice whereof shall be given to Holders of 4.50% Debentures not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any automated
quotation system or securities exchange on which the 4.50% Debentures may be
listed, and upon such notice as may be required by such quotation system or
exchange, as the case may be, all as more fully provided in the Indenture.
Payments of principal shall be made upon the surrender of this Security at the
option of the Holder at the Corporate Trust Office of the Trustee, or at such
other office or agency of the Company as may be designated by it for such
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts; provided, however,
that at the option of the Company payment of interest may be made by check,
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register, or, upon written application by the Holder to
the Security Registrar.
<PAGE>
Except as specifically provided in the Indenture, the Company shall not
be required to make any payment with respect to any tax, assessment or other
governmental charge imposed by any governmental or any political subdivision or
taxing authority thereof or therein.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
INACOM CORP.
[Corporate Seal]
/s/ David C. Guenthner
By: ____________________________
Title: Executive Vice President
& Chief Financial Officer
Name: David C. Guenthner
Attest:
/s/ Leon Kerkman
- ------------------------------
Title: Corporate Controller
Name: Leon Kerkman
<PAGE>
Form of Reverse of 4.50% Debenture
This Security is one of a duly authorized issue of 4.50% Debentures of
the Company designated as its 4.50% Convertible Subordinated Debentures Due
November 1, 2004 limited in aggregate principal amount to $75,000,000, as such
amount may be increased, but not by an amount in excess of $11,250,000, solely
as a result of the exercise of the underwriters' over-allotment option granted
by the Company under the underwriting agreement, dated October 29, 1997, among
the Company, Goldman, Sachs & Co., J.P. Morgan & Co., and PaineWebber
Incorporated, issued and to be issued under an Indenture, dated as of September
30, 1997, as supplemented and modified by that certain First Supplemental
Indenture, dated as of November 4, 1997 (as so supplemented and modified, herein
called the "Indenture"), between the Company and Norwest Bank Minnesota,
National Association, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee, the holders of Senior Indebtedness and the Holders of
the 4.50% Debentures and of the terms upon which the 4.50% Debentures are, and
are to be, authenticated and delivered. The 4.50% Debentures are issuable in
registered form only without coupons in denominations of $1,000 and any integral
multiple thereof.
Subject to and upon compliance with the provisions of the Indenture,
the Holder of this Security is entitled, at his option, at any time before the
close of business on November 1, 2004 or in case this Security or a portion
hereof is called for redemption or the Holder hereof has exercised his right to
require the Company to repurchase this Security or a portion hereof, then in
respect of this Security until and including, but (unless the Company defaults
in making the payment due upon redemption or repurchase, as the case may be) not
after, the close of business on the Redemption Date or Repurchase Date, as the
case may be, to convert this Security (or any portion of the principal amount
hereof that is an integral multiple of $1,000, provided that the unconverted
portion of such principal amount is $1,000 or any integral multiple of $1,000 in
excess thereof) into fully paid and nonassessable shares of Common Stock of the
Company at an initial Conversion Rate of 25.2350 shares of Common Stock for each
$1,000 principal amount of 4.50% Debentures (or at the then current adjusted
Conversion Rate if an adjustment has been made as provided in the Indenture) by
surrender of this Security, duly endorsed or assigned to the Company or in blank
and, in case such surrender shall be made during the period from the close of
business on any Regular Record Date next preceding any Interest Payment Date to
the opening of business on such Interest Payment Date (except if this Security
has been called for redemption on a Redemption Date or is repurchasable on a
Repurchase Date occurring, in either case, during such period and is surrendered
for such conversion during such period (including any 4.50% Debentures or
portions thereof called for redemption on a Redemption Date that is a Regular
Record Date or an Interest Payment Date, as the case may be)), also accompanied
by payment in New York Clearing House or other funds acceptable to the Company
of an amount equal to the interest payable on such Interest Payment Date on the
principal amount of this Security then being converted, and also the conversion
notice hereon duly executed, to the Company at the Corporate Trust Office of the
Trustee, or at such other
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<PAGE>
office or agency of the Company, subject to any laws or regulations applicable
thereto and subject to the right of the Company to terminate the appointment of
any Conversion Agent (as defined below) as may be designated by it for such
purpose in the Borough of Manhattan, The City of New York, or at such other
offices or agencies as the Company may designate (each a "Conversion Agent"),
provided further, that if this Security or portion hereof has been called for
redemption on a Redemption Date or is repurchasable on a Repurchase Date
occurring, in either case, during the period from the close of business on any
Regular Record Date next preceding any Interest Payment Date to the opening of
business on such succeeding Interest Payment Date and is surrendered for
conversion during such period, then the Holder of this Security who converts
this Security or a portion hereof during such period will be entitled to receive
the interest accruing hereon from the Interest Payment Date next preceding the
date of such conversion to such succeeding Interest Payment Date and shall not
be required to pay such interest upon surrender of this Security for conversion.
Subject to the provisions of the preceding sentence and, in the case of a
conversion after the close of business on the Regular Record Date next preceding
any Interest Payment Date and on or before the close of business on such
Interest Payment Date, to the right of the Holder of this Security (or any
Predecessor Security of record as of such Regular Record Date) to receive the
related installment of interest to the extent and under the circumstances
provided in the Indenture, no cash payment or adjustment is to be made on
conversion for interest accrued hereon from the Interest Payment Date next
preceding the day of conversion, or for dividends on the Common Stock issued on
conversion hereof. The Company shall thereafter deliver to the Holder the fixed
number of shares of Common Stock (together with any cash adjustment, as provided
in the Indenture) into which this Security is convertible and such delivery will
be deemed to satisfy the Company's obligation to pay the principal amount of
this Security. No fractions of shares or scrip representing fractions of shares
will be issued on conversion, but instead of any fractional interest (calculated
to the nearest 1/100th of a share) the Company shall pay a cash adjustment as
provided in the Indenture. The Conversion Rate is subject to adjustment as
provided in the Indenture. In addition, the Indenture provides that in the case
of certain consolidations or mergers to which the Company is a party or the
conveyance, transfer, sale or lease of all or substantially all of the property
and assets of the Company, the Indenture shall be amended, without the consent
of any Holders of 4.50% Debentures, so that this Security, if then Outstanding,
will be convertible thereafter, during the period this Security shall be
convertible as specified above, only into the kind and amount of securities,
cash and other property receivable upon such consolidation, merger, conveyance,
transfer, sale or lease by a holder of the number of shares of Common Stock of
the Company into which this Security could have been converted immediately prior
to such consolidation, merger, conveyance, transfer, sale or lease (assuming
such holder of Common Stock is not a Constituent Person, failed to exercise any
rights of election and received per share the kind and amount received per share
by a plurality of Non-electing Shares). No adjustment in the Conversion Rate
will be made until such adjustment would require an increase or decrease of at
least 1% of such Conversion Rate, provided that any adjustment that would
otherwise be made will be carried forward and taken into account in the
computation of any subsequent adjustment.
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<PAGE>
The 4.50% Debentures are subject to redemption upon not less than 20
nor more than 60 days' notice by mail, at any time on or after November 1, 2001,
as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount): If
redeemed during the 12-month period beginning November 1, of the years
indicated,
Redemption
Year Price
2001 101.929%
2002 101.286%
2003 100.643%
2004 100.000%
and thereafter at a Redemption Price equal to 100% of the principal amount, in
each case together with accrued interest to the Redemption Date; provided,
however, that interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such 4.50% Debentures, or one
or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.
In the event of redemption, repurchase or conversion of this Security
in part only, a new Security for the unredeemed, unrepurchased or unconverted
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
In any case where the due date for the payment of the principal of,
premium, if any, or interest on a Security or the last day on which a Holder of
a Security has a right to convert his Security shall be, at any Place of Payment
or Place of Conversion, as the case may be, a day on which banking institutions
at such Place of Payment or Place of Conversion are authorized or obligated by
law or executive order to close, then payment of principal, premium, if any, or
interest, or delivery for conversion of such Security need not be made on or by
such date at such place but may be made on or by the next succeeding day at such
place which is not a day on which banking institutions are authorized or
obligated by law or executive order to close, with the same force and effect as
if made on the date for such payment or the date fixed for redemption or
repurchase, or by such last day for conversion, and no interest shall accrue on
the amount so payable for the period after such date so long as payment is made
on the next succeeding day at such place which is not a day on which banking
institutions are authorized or obligated by law or executive order to close.
If a Change of Control occurs, the Holder of this Security, at the
Holder's option, shall have the right, in accordance with the provisions of the
Indenture, to require the Company to repurchase this Security (or any portion of
the principal amount hereof that equal to $1,000 or any integral multiple of
$1,000 in excess thereof) for cash at a Repurchase Price equal to 100%
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of the principal amount thereof plus interest accrued to the Repurchase Date. At
the option of the Company, the Repurchase Price may be paid in cash or, subject
to the conditions provided in the Indenture, by delivery of shares of Common
Stock having a fair market value equal to the Repurchase Price. For purposes of
this paragraph, the fair market value of shares of Common Stock shall be
determined by the Company and shall be equal to 95% of the average of the
Closing Prices Per Share for the five consecutive Trading Days ending on and
including the third Trading Day immediately preceding the Repurchase Date.
Whenever in this Security there is a reference, in any context, to the principal
of any such Security as of any time, such reference shall be deemed to include
reference to the Repurchase Price payable in respect of such Security to the
extent that such Repurchase Price is, was or would be so payable at such time,
and express mention of the Repurchase Price in any provision of this Security
shall not be construed as excluding the Repurchase Price so payable in those
provisions of this Security when such express mention is not made; provided,
however, that, for the purposes of the next paragraph, such reference shall be
deemed to include reference to the Repurchase Price only to the extent the
Repurchase Price is payable in cash.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
If an Event of Default shall occur and be continuing, the principal of
all the 4.50% Debentures may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the 4.50% Debentures under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the 4.50%
Debentures at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the 4.50% Debentures at the time Outstanding, on behalf of the Holders of all
the 4.50% Debentures, to waive compliance by the Company with certain provisions
of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay
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the principal of (and premium, if any) and interest on this Security on the
respective Stated Maturities expressed herein (or in the case of redemption or
repurchase, on the Redemption Date or Repurchase Date, as the case may be) or to
convert this Security as provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default, the Holders of not
less than 25% in principal amount of the Outstanding 4.50% Debentures shall have
made written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee indemnity satisfactory to it
and the Trustee shall not have received from the Holders of a majority in
principal amount of the 4.50% Debentures Outstanding a direction inconsistent
with such request, and shall have failed to institute any such proceeding, for
60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof, premium, if any, or
interest hereon on or after the respective due dates expressed herein or for the
enforcement of the right to convert this Security as provided in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company maintained for that purpose pursuant to Section
1002, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new 4.50% Debentures, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee, and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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ABBREVIATIONS
The following abbreviations, when used in the inscription of the face
of this Security, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT--______________
TEN ENT - as tenants by the (Cust)
entireties Custodian __________ under Uniform
JT TEN - as joint tenants with right (Minor)
of survivorship and not as Gifts to Minors Act ______________
tenants in common (State)
Additional abbreviations may also be used
though not in the above list.
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ELECTION OF HOLDER TO REQUIRE REPURCHASE
1. Pursuant to Section 1501 of the Indenture, the undersigned hereby
elects to have this Security repurchased by the Company.
2. The undersigned hereby directs the Trustee or the Company to pay it
or __________________ an amount in cash or, at the Company's election, Common
Stock valued as set forth in the Indenture, equal to 100% of the principal
amount to be repurchased (as set forth below), plus interest accrued to the
Repurchase Date, as provided in the Indenture.
Dated:
------------------------------
------------------------------
Signature(s)
Signature(s) must be guaranteed by an Eligible Guarantor Institution
with membership in an approved signature guarantee program pursuant to
Rule 17Ad-15 under the Securities Exchange Act of 1934.
------------------------------
Signature Guaranteed
Principal amount to be repurchased
(an integral multiple of $1,000): _______________________________
Remaining principal amount following such repurchase: ____________________
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
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