Exhibit 99.4
BUILDING ONE SERVICES CORPORATION
AND
[_______________________________]
INDENTURE
DATED AS OF MARCH __, 1999
$100,000,000
7 1/2% CONVERTIBLE JUNIOR SUBORDINATED
DEBENTURES DUE 2012
TABLE OF CONTENTS
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ARTICLE I - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION 1
SECTION 101. DEFINITIONS........................................ 1
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS............... 16
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE............. 16
SECTION 104. ACTS OF HOLDERS; RECORD DATES...................... 17
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.............. 18
SECTION 106. NOTICE TO HOLDERS; WAIVER.......................... 18
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.................. 19
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS........... 19
SECTION 109. SUCCESSORS AND ASSIGNS............................. 19
SECTION 110. SEPARABILITY CLAUSE................................ 19
SECTION 111. BENEFITS OF INDENTURE.............................. 19
SECTION 112. GOVERNING LAW...................................... 19
SECTION 113. LEGAL HOLIDAYS..................................... 19
SECTION 114. NO SECURITY INTEREST CREATED....................... 20
SECTION 115. LIMITATION ON INDIVIDUAL LIABILITY................. 20
ARTICLE II - SECURITY FORMS........................................ 20
SECTION 201. FORMS GENERALLY.................................... 20
SECTION 202. FORM OF FACE OF SECURITY........................... 21
SECTION 203. FORM OF REVERSE OF SECURITY........................ 24
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.... 29
ARTICLE III - THE SECURITIES...................................... 29
SECTION 301. TITLE AND TERMS.................................... 29
SECTION 302. DENOMINATIONS...................................... 30
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING..... 30
SECTION 304. TEMPORARY SECURITIES............................... 30
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE 31
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES... 33
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED..... 34
SECTION 308. PERSONS DEEMED OWNERS.............................. 35
SECTION 309. CANCELLATION....................................... 36
SECTION 310. COMPUTATION OF INTEREST............................ 36
SECTION 311. CUSIP NUMBER....................................... 36
SECTION 312. RESTRICTIONS ON TRANSFER........................... 36
SECTION 313. RESTRICTIVE LEGENDS................................ 36
SECTION 314. NOTICE OF PROPOSED TRANSFERS....................... 37
ARTICLE IV - SATISFACTION AND DISCHARGE.......................... 37
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE............ 37
SECTION 402. APPLICATION OF TRUST MONEY......................... 38
SECTION 403. REINSTATEMENT...................................... 38
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ARTICLE V - REMEDIES........................................................... 39
SECTION 501. EVENTS OF DEFAULT............................................. 39
SECTION 502. ACCELERATION OF MATURITY; RECESSION AND ANNULMENT............. 41
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE....................................................... 42
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.............................. 42
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES... 43
SECTION 506. APPLICATION OF MONEY COLLECTED................................ 43
SECTION 507. LIMITATION ON SUITS........................................... 44
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST AND TO CONVERT................................... 44
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES............................ 44
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE................................ 44
SECTION 511. DELAY OR OMISSION NOT WAIVER.................................. 45
SECTION 512. CONTROL BY HOLDERS............................................ 45
SECTION 513. WAIVER OF PAST DEFAULTS....................................... 45
SECTION 514. UNDERTAKING FOR COSTS......................................... 46
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.............................. 46
ARTICLE VI - THE TRUSTEE 46
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES........................... 46
SECTION 602. NOTICE OF DEFAULTS............................................ 47
SECTION 603. CERTAIN RIGHTS OF TRUSTEE..................................... 47
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES........ 48
SECTION 605. MAY HOLD SECURITIES........................................... 48
SECTION 606. MONEY HELD IN TRUST........................................... 48
SECTION 607. COMPENSATION AND REIMBURSEMENT................................ 48
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS....................... 49
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY....................... 49
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR............. 49
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR........................ 51
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS... 51
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY............. 51
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT........................... 51
ARTICLE VII - HOLDERS' LIST AND REPORTS BY TRUSTEE AND COMPANY................. 53
SECTION 701. COMPANY TO FURNISH TRUSTEES NAMES AND ADDRESSES OF HOLDERS.... 53
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS......... 54
SECTION 703. REPORTS BY TRUSTEE............................................ 54
SECTION 704. REPORTS BY COMPANY............................................ 54
ARTICLE VIII - CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE............ 54
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.......... 54
SECTION 802. SUCCESSOR SUBSTITUTED......................................... 55
ARTICLE IX - SUPPLEMENTAL INDENTURES.......................................... 55
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS............ 55
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS............... 56
SECTION 903. EXECUTIVE OF SUPPLEMENTAL INDENTURES.......................... 57
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES............................. 57
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT........................... 57
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SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES............ 57
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURE.............................. 58
ARTICLE X - COVENANTS.......................................................... 58
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.................... 58
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY............................... 58
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST............... 58
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT........................... 59
SECTION 1005. EXISTENCE..................................................... 60
SECTION 1006. WAIVER OF CERTAIN COVENANTS................................... 60
SECTION 1007. LIMITATION ON INCURRENCE OF INDEBTEDNESS...................... 60
SECTION 1008. COMPLIANCE WITH INVESTOR RIGHTS AGREEMENT..................... 60
SECTION 1009. LIMITATION ON RESTRICTED PAYMENTS............................. 60
ARTICLE XI - REDEMPTION OF SECURITIES.......................................... 61
SECTION 1101. RIGHT OF REDEMPTION........................................... 61
SECTION 1102. APPLICABILITY OF ARTICLE...................................... 61
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE......................... 61
SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED............. 62
SECTION 1105. NOTICE OF REDEMPTION.......................................... 62
SECTION 1106. DEPOSIT OF REDEMPTION PRICE................................... 62
SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE......................... 63
SECTION 1108. SECURITIES REDEEMED IN PART................................... 63
SECTION 1109. CONVERSION ARRANGEMENTS ON CALL FOR REDEMPTION................ 63
SECTION 1110. ARTICLE APPLICABLE TO PAYING AGENTS........................... 63
SECTION 1111. RIGHTS WITH RESPECT TO CONVERSION AND CERTAIN PAYMENTS........ 64
ARTICLE XII - SUBORDINATION OF SECURITIES...................................... 64
SECTION 1201. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS................ 64
SECTION 1202. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC................ 64
SECTION 1203. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT................ 65
SECTION 1204. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS....... 66
SECTION 1205. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS................... 67
SECTION 1206. TRUSTEE TO EFFECTUATE SUBORDINATION........................... 67
SECTION 1207. NO WAIVER OF SUBORDINATION PROVISIONS......................... 67
SECTION 1208. NOTICE TO TRUSTEE............................................. 68
SECTION 1209. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT 68
SECTION 1210. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS...... 68
SECTION 1211. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.............................. 69
SECTION 1212. ARTICLE APPLICABLE TO PAYING AGENTS........................... 69
SECTION 1213. RIGHTS WITH RESPECT TO CONVERSION AND CERTAIN PAYMENTS........ 69
ARTICLE XIII - CONVERSION OF SECURITIES........................................ 69
SECTION 1301. CONVERSION PRIVILEGE AND CONVERSION PRICE..................... 69
SECTION 1302. EXERCISE OF CONVERSION PRIVILEGE.............................. 70
SECTION 1303. FRACTIONS OF SHARES........................................... 70
SECTION 1304. ADJUSTMENT OF CONVERSION PRICE................................ 71
SECTION 1305. NOTICE OF ADJUSTMENTS OF CONVERSION PRICE..................... 76
SECTION 1306. NOTICE OF CERTAIN CORPORATE ACTION............................ 76
SECTION 1307. COMPANY TO RESERVE COMMON STOCK............................... 77
SECTION 1308. TAXES ON CONVERSIONS.......................................... 77
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SECTION 1309. COVENANT AS TO COMMON STOCK................................... 77
SECTION 1310. CANCELLATION OF CONVERTED SECURITIES.......................... 78
SECTION 1311. PROVISIONS AS TO CONSOLIDATION, MERGER OR SALE OF ASSETS...... 78
SECTION 1312. DISCLAIMER OF RESPONSIBILITY FOR CERTAIN MATTERS.............. 79
ARTICLE XIV - RIGHT TO REQUIRE REPURCHASE...................................... 79
SECTION 1401. RIGHT TO REQUIRE REPURCHASE................................... 79
SECTION 1402. NOTICE; METHOD OF EXERCISING REPURCHASE RIGHT................. 79
SECTION 1403. DEPOSIT OF REPURCHASE PRICE................................... 80
SECTION 1404. SECURITIES NOT REPURCHASED ON REPURCHASE DATE................. 80
SECTION 1405. SECURITIES REPURCHASED IN PART................................ 81
ARTICLE XV - VOTING RIGHTS 81
SECTION 1501. GENERAL....................................................... 81
SECTION 1502. NO CHANGES TO VOTING RIGHTS................................... 81
SECTION 1503. STOCKHOLDER APPROVAL REQUIRED................................. 82
SECTION 1504. EFFECTIVENESS OF THIS ARTICLE XV.............................. 82
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INDENTURE
INDENTURE, dated as of _______ ___, 1999 between BUILDING ONE SERVICES
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal executive
offices at _______________________ , and __________________________, a national
banking association, as Trustee (herein called the "Trustee"), having an office
at ____________________.
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 71/2%
Convertible Junior Subordinated Debentures Due 2012 (herein called the
"Securities") of substantially the tenor and amount hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of 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 I
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:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with United States generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required and permitted
hereunder shall mean United States accounting principles as are
generally accepted at the date of this Indenture; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms used in either Article Twelve or Thirteen are defined in
such Article.
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Subsidiary of the
Company or at the time it merges or consolidates with the Company or any of its
Subsidiaries or is assumed by the Company or any of its Subsidiaries in
connection with the acquisition of assets from such Person and in each case not
incurred by such Person in connection with, or in anticipation or contemplation
of, such Person becoming a Subsidiary of the Company or such acquisition,
merger or consolidation.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Interest" has the meaning specified in Section 202.
"Additional Interest Payment Date" means the date a dividend is paid
by the Company that gives rise to an obligation to pay Additional Interest.
"Additional Interest Record Date" has the meaning specified in Section
202.
"Additional Securities" has the meaning specified in Section 202.
"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.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Global Security to the extent
applicable to such transaction and as in effect from time to time.
"Apollo Stockholders" means Apollo Advisors, L.P., any Affiliate
thereof (including without limitation, Boss Investment LLC, Apollo Investment
Fund IV, L.P. and Apollo Overseas Partners IV, L.P.), and all accounts managed
by any of them for so long as any of them holds the power of disposition and
voting with respect thereto.
"Appraisal Procedure" if applicable, shall mean the following
procedure to determine the fair market value, as to any security, for purposes
of the definition of "Fair Market Value"
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or the fair market value, as to any other property (in either case, the
"valuation amount"). So long as the Apollo Stockholders constitute the Requisite
Holders, the valuation amount shall be determined in good faith jointly by the
Board of Directors and the Requisite Holders; provided, however, that if such
parties are not able to agree on the valuation amount within a reasonable period
of time (not to exceed twenty (20) days) the valuation amount shall be
determined by an investment banking firm of national recognition, which firm
shall be reasonably acceptable to the Board of Directors and the Requisite
Holders. If the Board of Directors and the Requisite Holders are unable to agree
upon an acceptable investment banking firm within ten (10) days after the date
either party proposed that one be selected, the investment banking firm will be
selected by an arbitrator located in New York City, New York, selected by the
American Arbitration Association (or if such organization ceases to exist, the
arbitrator shall be chosen by a court of competent jurisdiction). The arbitrator
shall select the investment banking firm (within ten (10) days of his
appointment) from a list, jointly prepared by the Board of Directors and the
Requisite Holders, of not more than six investment banking firms of national
standing in the United States, of which no more than three may be named by the
Board of Directors and no more than three may be named by the Requisite Holders.
The arbitrator may consider, within the ten-day period allotted, arguments from
the parties regarding which investment banking firm to choose, but the selection
by the arbitrator shall be made in its sole discretion from the list of six. The
Board of Directors and the Requisite Holders shall submit to the investment
banking firm their respective determinations of the valuation amount, and any
supporting arguments and other data as they may desire, within ten (10) days of
the appointment of the investment banking firm, and the investment banking firm
shall as soon as practicable thereafter make its own determination of the
valuation amount. The final valuation amount for purposes hereof shall be the
average of the two valuation amounts closest together, as determined by the
investment banking firm, from among the valuation amounts submitted by the
Company and the Requisite Holders and the valuation amount calculated by the
investment banking firm. The determination of the final valuation amount by such
investment-banking firm shall be final and binding upon the parties. The Company
shall pay the fees and expenses of the investment banking firm and arbitrator
(if any) used to determine the valuation amount. If required by any such
investment banking firm or arbitrator, the Company shall execute a retainer and
engagement letter containing reasonable terms and conditions, including, without
limitation, customary provisions concerning the rights of indemnification and
contribution by the Company in favor of such investment banking firm or
arbitrator and its officers, directors, partners, employees, agents and
Affiliates. If the Apollo Stockholders no longer constitute the Requisite
Holders, the valuation amount shall be determined in good faith by the Board of
Directors.
"Asset Acquisition" means (a) an Investment by the Company or any
Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Subsidiary of the Company or any Subsidiary of the Company, or
shall be merged with or into the Company or any Subsidiary of the Company, or
(b) the acquisition by the Company or any Subsidiary of the Company of the
assets of any Person (other than a Subsidiary of the Company) which constitute
all or substantially all of the assets of such Person or comprises any division
or line of business of such Person or any other properties or assets of such
Person other than in the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease (other than operating leases entered into in the ordinary course
of business), assignment or
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other transfer for value by the Company or any of its Subsidiaries (including
any Sale and Leaseback Transaction) to any Person other than the Company or a
Wholly Owned Subsidiary of the Company of (a) any Capital Stock of any
Subsidiary of the Company; or (b) any other property or assets of the Company or
any Subsidiary of the Company other than in the ordinary course of business.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities.
The term "Beneficial Owner" is determined in accordance with Rule 13d-
3 promulgated by the Commission under the Exchange Act.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York or
the city in which the Corporate Trust Office is located are authorized or
obligated to close by law or executive order.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person and (ii) with
respect to any Person that is not a corporation, any and all partnership or
other equity interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Change of Control" means the occurrence of any of the following
events (each a "Change of Control"):
(i) the Sale of the Company,
(ii) the adoption of a plan relating to a Liquidation,
(iii) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act), other than one or more
Permitted Holders, is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of
4
Voting Stock entitled to cast a majority of the votes entitled
to be cast by the holders of the outstanding Voting Stock of
the Company,
(iv) (A) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), other than one
or more Permitted Holders, is or becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act), directly or indirectly, of Voting Stock entitled to cast
more than 40% of the votes entitled to be cast by the holders
of the outstanding Voting Stock of the Company and (B) the
Permitted Holders beneficially own, directly or indirectly,
Voting Stock entitled to cast in the aggregate a lesser
percentage of the votes entitled to be cast by the outstanding
Voting Stock of the Company than such other person or group,
or
(v) the first day on which a majority of the Common Stock Directors
are not Continuing Directors.
"Charter Amendment" means an amended and restated certificate of
incorporation of the Company substantially in the form of Exhibit A to the
Investor Rights Agreement.
"Charter Amendment Deadline" means the date 125 days after the date of
the Investor Rights Agreement or, if later, 60 days after the Original Issuance
Date.
"Close of Business" means 5:00 p.m. in New York, New York.
"Commission" means the Securities and Exchange Commission as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" includes any stock of any class of the Company which
has no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding-up of the
Company and which is not subject to redemption by the Company. However, subject
to the provisions of Section 1311, shares issuable on conversion of Securities
shall include only shares of the class designated as Common Stock of the Company
at the date of this Indenture or shares of any class or classes resulting from
any reclassification or reclassifications thereof and which have no preference
in respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and which are
not subject to redemption by the Company; provided, that if at any time there
shall be more than one such resulting class, the shares of each such class then
so issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.
"Common Stock Directors" means those directors of the Company who have
not been elected by the holders of the Securities pursuant to the separate class
vote granted to the Holders of the Securities to elect directors pursuant to the
Charter Amendment.
5
"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
delivered to the Trustee and signed in the name of the Company by (a) the
Chairman of the Board, the President or any Vice President of the Company and
(b) the Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of (i) Consolidated Net Income and (ii) to
the extent Consolidated Net Income has been reduced thereby, (A) all income
taxes of such Person and Subsidiaries paid or accrued in accordance with GAAP
for such period (other than income taxes attributable to extraordinary, unusual
or nonrecurring gains or losses), (B) Consolidated Interest Expense and (C)
depreciation and amortization less any non-cash items increasing Consolidated
Net Income for such period, all as determined on a consolidated basis for such
Person and its Subsidiaries in accordance with GAAP.
"Consolidated Indebtedness" means with respect to any Person, as of
the date of determination, the aggregate amount of all Indebtedness of such
Person and its Subsidiaries on a consolidated basis included on the face of the
balance sheet of such Person (determined in accordance with GAAP) plus any
Indebtedness included on the face of the balance sheet of any other Person
(determined in accordance with GAAP) as to which such Person and/or any of its
Subsidiaries has created a guarantee or other contingent obligation (to the
extent of such guarantee or other contingent obligation).
"Consolidated Interest Expense" means, with respect to any Person for
any period, the sum of, without duplication (i) the aggregate of the interest
expense of such Person and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, including without limitation, (a)
any amortization of debt discount and amortization or write-off of deferred
financing costs (including the amortization of costs relating to interest rate
caps or other similar agreements), (b) the net costs under Interest Swap
Obligations, (c) all capitalized interest and (d) the interest portion of any
deferred payment obligation; and (ii) the interest component of Capitalized
Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such
Person and its Subsidiaries during such period as determined on a consolidated
basis in accordance with GAAP, minus interest income for such period.
"Consolidated Leverage Ratio" means, with respect to any Person, the
ratio of Consolidated Indebtedness of such Person on the date of the transaction
giving rise to the need to calculate the Consolidated Leverage Ratio (the
"Transaction Date") to Consolidated EBITDA of such Person for the four full
fiscal quarters (the "Four Quarter Period") most recently ending on or prior to
the Transaction Date for which quarterly consolidated financial statements of
the Company and its Subsidiaries have been distributed to Holders. In addition
to and without limitation of the foregoing, for purposes of this definition,
"Consolidated EBITDA" and "Consolidated Indebtedness" shall be calculated after
giving effect on a pro forma basis, determined in accordance with Article XI of
Regulation S-X promulgated by the Commission, for the period of such calculation
to any Asset Sales or Asset Acquisitions (including, without
6
limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such Person or one of its Subsidiaries (including any
Person who becomes a Subsidiary as a result of the Asset Acquisition) incurring,
assuming or otherwise being liable for Acquired Indebtedness and also including
any Consolidated EBITDA attributable to the assets which are the subject of the
Asset Acquisition but excluding the Consolidated EBITDA attributable to the
assets which are the subject of the Asset Sale) occurring during the Four
Quarter Period or at any time subsequent to the last day of the Four Quarter
Period and on or prior to the Transaction Date, as if such Asset Sale or Asset
Acquisition (including the incurrence, assumption or liability for any such
Acquired Indebtedness) occurred on the first day of the Four Quarter Period. If
such Person or any of its Subsidiaries directly or indirectly guarantees
Indebtedness of a third Person, the preceding sentence shall give effect to the
incurrence of such guaranteed Indebtedness as if such Person or any Subsidiary
of such Person had directly incurred or otherwise assumed such guaranteed
Indebtedness.
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate net income (or loss) of such Person and its Subsidiaries
for such period on a consolidated basis, determined in accordance with GAAP;
provided that there shall be excluded therefrom (a) after-tax gains or losses
from Asset Sales or abandonments or reserves relating thereto, (b) after-tax
items classified as extraordinary or nonrecurring gains or losses, (c) the net
income of any Person acquired in a "pooling of interests" transaction accrued
prior to the date it becomes a Subsidiary of the referent Person or is merged
or consolidated with the referent Person or any Subsidiary of the referent
Person, (d) the net income (but not loss) of any Subsidiary of the referent
Person to the extent that the declaration of dividends or similar distributions
by that Subsidiary of that income is by a contract, operation of law or
otherwise prohibited, (e) the net income of any Person, other than a Subsidiary
of the referent Person, except to the extent of cash dividends or distributions
paid to the referent Person or to a Wholly Owned Subsidiary of the referent
Person by such Person, and (f) in the case of a successor to the referent Person
by consolidation or merger or as a transferee of the referent Person's assets,
any earnings of the successor corporation prior to such consolidation, merger or
transfer of assets.
"Continuing Directors" means (a) the Common Stock Directors in office
immediately after the Original Issuance Date, (b) the directors of the Company
designated by the Holders and (c) any directors of the Company nominated to the
Board of Directors by a majority of the directors included in clause (a) and
clause (b) of this definition (voting together as one board) or by a majority of
Company directors who are Continuing Directors.
"Conversion Date" has the meaning specified in Section 1302.
"Conversion Price" shall mean $22.50 per share of Common Stock,
subject to adjustment pursuant to Sections 202, 203 and 1304.
"Converted Amount" means, with respect to any Security being
converted, the principal amount of such Security or, if less than the entire
principal amount of such Security is being converted, such portion of the
principal amount thereof as is being converted.
"Corporate Trust Office" means the office of the Trustee in New York,
New York, which initially shall be ______________, New York, New York ________.
7
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Credit Facility" means the Credit Agreement to be dated as of the
Original Issuance Date, between the Company, the lenders party thereto in their
capacities as lenders thereunder and _______________, as administrative agent,
together with the related documents thereto (including, without limitation, any
guarantee agreements and security documents), in each case as such agreements
may be amended (including any amendment and restatement thereof), supplemented
or otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including
increasing the amount of available borrowing thereunder (provided that such
--------
increase in borrowings is permitted by Section 1007) or adding Subsidiaries of
the Company as additional borrowers or guarantors thereunder) all or any portion
of the Indebtedness under such agreement or any successor or replacement
agreement and whether by the same or any other agent, lender or group of
lenders.
"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 a Depositary for such Global Securities (or any successor
securities clearing agency so registered).
"Designated Senior Indebtedness" means (i) Indebtedness under or in
respect of the Credit Facility and (ii) any other Indebtedness constituting
Senior Indebtedness which, at the time of determination, has an aggregate
principal amount of at least $25.0 million and is specifically designated in the
instrument evidencing or creating such Senior Indebtedness as "Designated Senior
Indebtedness" by the Company.
"DTC" means The Depository Trust Company, a New York corporation
"Disqualified Capital Stock" means that portion of any Capital Stock
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof, on or prior to the Maturity of the Securities.
"Duly Adopted" means, with respect to the Charter Amendment, duly
adopted in accordance with the General Corporation Law of the State of Delaware
and duly filed with the Secretary of State of Delaware.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Stock" means (i) shares of Common Stock issuable upon
exercise of any warrants or options of the Company outstanding on the Original
Issuance Date, (ii) shares of Common Stock issued as consideration pursuant to
any acquisition by the Company or any Subsidiary of any business or assets for
which the consent or approval of certain Holders is
8
required pursuant to the Investor Rights Agreement and has been obtained, (iii)
shares of Common Stock issued pursuant to the conversion of the Securities, (iv)
shares of Common Stock issued as consideration pursuant to any Asset Acquisition
by the Company or any Subsidiary of any business or assets if (x) the total
consideration paid in such Asset Acquisition is less than $25 million (based on
the total cash consideration, total Indebtedness assumed by the Company and its
Subsidiaries and the Fair Market Value of the shares of Common Stock issued and
the other property paid) and (y) the Consolidated Net Income per outstanding
share of Common Stock for the immediately preceding full twelve month period
giving pro forma effect to such acquisition, the Acquired Indebtedness arising
out of such acquisition, the Indebtedness incurred and the shares of Common
Stock issued in connection with such acquisition, in each case, as if such Asset
Acquisition was consummated at the beginning of such period is greater than the
actual Consolidated Net Income per outstanding share of Common Stock for such
period, (v) shares of Securities issued as dividends to the Holders, (vi) shares
of Common Stock or options issued pursuant to any Company employee incentive or
benefit arrangement existing on the date hereof pursuant to the terms thereof on
the date hereof, (vii) shares of Common Stock issued pursuant to obligations to
pay earnouts with respect to the nine Asset Acquisitions described on Schedule I
hereto in accordance with the agreements relating thereto as in effect on the
date of the Investor Rights Agreement, and (viii) up to 1,500,000 shares of
Common Stock to be issued pursuant to the long term equity incentive plan
described on Schedule 3.14 to the Securities Purchase Agreement. So long as
Apollo Stockholders constitute Requisite Holders, Apollo Stockholders may by
written consent delivered to the Company include any Common Stock or options
with respect thereto issued pursuant to any Company employee incentive or
benefit arrangement now existing or hereafter created within the definition of
"Excluded Stock".
"Fair Market Value" means, as to any security, the Twenty Day Average
of the average closing prices of such security's sales on all domestic
securities exchanges on which such security may at the time be listed, or, if
there have been no sales on any such exchange on any day, the average of the
highest bid and lowest asked prices on all such exchanges at the end of such
day, or, if on any day such security is not so listed, the average of the
representative bid and asked prices quoted in the NASDAQ System as of 4:00 P.M.,
New York City time, on such day, or, if on any day such security is not quoted
in the NASDAQ System, the average of the highest bid and lowest asked prices on
such day in the domestic over-the-counter market as reported by the National
Quotation Bureau, Incorporated, or any similar or successor organization (and in
each such case excluding any trades that are not bona fide, arm's length
transactions). If at any time such security is not listed on any domestic
securities exchange or quoted in the NASDAQ System or the domestic over-the-
counter market, the "Fair Market Value" of such security shall be the fair
market value thereof as determined in accordance with the Appraisal Procedure,
using an appropriate valuation method, assuming an arms-length sale to an
independent party. In determining the fair market value of any class or series
of Common Stock, a sale of all of the issued and outstanding Common Stock of the
Corporation will be assumed, without giving regard to the lack of liquidity of
such stock due to any restrictions (contractual or otherwise) applicable thereto
or any discount for minority interests and assuming the conversion or exchange
of all securities then outstanding that are convertible into or exchangeable for
Common Stock and the exercise of all rights and warrants then outstanding and
exercisable to purchase shares of such stock or securities convertible into or
exchangeable for shares of such stock; provided, however that such assumption
-------- -------
will not include those securities, rights and warrants convertible into Common
Stock where the conversion, exchange or exercise
9
price per share is greater than the fair market value; provided, further,
-------- -------
however, that fair market value shall be determined with regard to the relative
-------
priority of each class or series of Common Stock (if more than one class or
series exists.) "Fair Market Value" means with respect to property other than
securities, the "fair market value" determined in accordance with the Appraisal
Procedure .
"First Redemption Date" means the fifth anniversary of the Original
Issuance Date, i.e., _______________, 2004.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, which are in effect as of the Original Issuance
Date.
"Global Security" means a Security that is registered in the Security
Register in the name of a Depositary or nominee thereof.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means with respect to any Person, without duplication,
(i) all Obligations of such Person for borrowed money, (ii) all Obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all Capitalized Lease Obligations of such Person, (iv) all Obligations of
such Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all Obligations under any title retention
agreement (but excluding trade accounts payable and other accrued liabilities
arising in the ordinary course of business), (v) all Obligations for the
reimbursement of any obligor on any letter of credit, banker's acceptance or
similar credit transaction, (vi) guarantees and other contingent obligations in
respect of Indebtedness referred to in clauses (i) through (v) above and clause
(viii) below, (vii) all Obligations of any other Person of the type referred to
in clauses (i) through (vi) which are secured by any lien on any property or
asset of such Person, the amount of such Obligation being deemed to be the
lesser of the fair market value of such property or asset or the amount of the
Obligation so secured, (viii) all Obligations under currency agreements and
interest swap agreements of such Person and (ix) all Disqualified Capital Stock
issued by such Person with the amount of Indebtedness represented by such
Disqualified Capital Stock being equal to the greater of its voluntary or
involuntary liquidation preference and its maximum fixed repurchase price, but
excluding accrued dividends, if any. For purposes hereof, the "maximum fixed
repurchase price" of any Disqualified Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were purchased
on any date on which Indebtedness shall be required to be determined pursuant to
this Indenture, and if such price is based upon, or measured by, the fair market
value of such Disqualified Capital Stock, such fair market value shall be
determined reasonably and in good faith by the Board of Directors of the issuer
of such Disqualified Capital Stock. For purposes hereof, "Indebtedness" shall
exclude all (i) contingent payment obligations incurred in the ordinary course
of the Company and its
10
Subsidiaries' business with respect to surety bonds, performance bonds and
similar instruments, to the extent they are not secured by any lien on assets of
the Company or its Subsidiaries and do not secure other Indebtedness of the
Company and (ii) earnout obligations with respect to Asset Acquisitions payable
in the form of Common Stock of the Company that is not Disqualified Capital
Stock.
"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 Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Swap Obligations" means the obligations of any Person
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"Investment" means, with respect to any Person, any direct or indirect
loan or other extension of credit (including, without limitation, a guarantee)
or capital contribution to (by means of any transfer of cash or other property
to others or any payment for property or services for the account or use of
others), or any purchase or acquisition by such Person of any Capital Stock,
bonds, notes, debentures or other securities or evidences of Indebtedness issued
by, any Person. "Investment" shall exclude extensions of trade credit by the
Company and its Subsidiaries on commercially reasonable terms in accordance with
normal trade practices of the Company or such Subsidiary, as the case may be.
"Investor Rights Agreement" means the Investor Rights Agreement dated
March ___, 1999 among the Company and Boss Investment LLC, as the same may be
amended from time to time.
"Liquidation" means any voluntary or involuntary liquidation,
dissolution, or winding up of the affairs of the Company, other than any
dissolution, liquidation or winding up in connection with any reincorporation of
the Company in another jurisdiction.
"Management Group" means those individuals listed on Schedule II
-----------
attached hereto.
"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 thereof or by declaration of
acceleration, redemption or otherwise.
"NASD" means the National Association of Securities Dealers, Inc.
11
"Nasdaq Stock Market" means the stock exchange regulated by the NASD.
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Officers' Certificate" means a certificate delivered to the Trustee
and signed by (a) the Chairman of the Board, the Chief Executive Officer, the
President or any Vice President of the Company and (b) the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of the Company.
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 or an employee of the Company, and who shall not be unacceptable to
the Trustee.
"Original Issuance Date" means the first date of issuance of the
Securities; i.e., _________________, 1999.
"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 canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for the payment or redemption
of which moneys in the necessary amount have 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, or portions thereof, 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
(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 s uch 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 the 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
the Trustee 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
12
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.
"Payment Blockage Period" has the meaning specified in Section 1203.
"Permitted Holders" means the Apollo Stockholders and the Management
Group.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"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.
"Preferred Stock" of any Person means any Capital Stock of such Person
that has preferential rights to any other Capital Stock of such Person with
respect to dividends or upon liquidation.
"Record Date" means either a Regular Record Date, a Special Record
Date or an Additional Interest Record Date, as applicable.
"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" has the meaning specified in Section 203.
"Regular Record Date", for the interest payable on any Interest
Payment Date means the ____ , ____ , ____ or ____ , (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date.
"Repurchase Date" has the meaning specified in Section 1401.
"Requisite Holders" means Holders of a majority in principal amount of
the Outstanding Securities.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Subsidiary of any property, whether owned by
the Company or any Subsidiary at the Original Issuance Date or later acquired,
which has been or is to be sold or transferred by the Company or such Subsidiary
to such Person or to any other Person from whom funds have been or are to be
advanced by such Person on the security of such property.
13
"Sale of the Company" shall mean (i) the sale or other disposition,
directly or indirectly, of all or substantially all of the Company's assets in
one transaction or a series of transactions or (ii) the merger or consolidation
of the Company with or into another Person, in the case of clause (ii) only,
under circumstances in which the holders of Voting Stock entitled to cast a
majority of the votes entitled to be cast by the holders of the Voting Stock of
the Company, immediately prior to the merger or consolidation, own Voting Stock
entitled to cast less than a majority of the votes entitled to be cast by the
holders of the Voting Stock of the Company or the surviving or resulting Company
or acquirer, as the case may be, immediately following such merger or
consolidation. A sale (or sales) of one or more Subsidiaries of the Company
(whether by way of merger, consolidation, reorganization or sale of all or
substantially all assets or securities) which constitutes all or substantially
all of the consolidated assets of the Company shall be deemed a Sale of the
Company.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute or statutes thereto.
"Securities Purchase Agreement" means the Securities Purchase
Agreement dated as of March ___, 1999 among the Company and Boss Investment,
LLC, as the same may be amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means principal of, premium, if any, and accrued
and unpaid interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company) on any
Indebtedness of the Company. Notwithstanding the foregoing, "Senior
Indebtedness" shall not include (i) any Indebtedness of the Company to a
Subsidiary of the Company, (ii) Indebtedness to, or guaranteed on behalf of, any
director, officer or employee of the Company or any Subsidiary of the Company
(including, without limitation, amounts owed for compensation), (iii)
liabilities to trade creditors incurred in the ordinary course of business
consistent with past practice in connection with obtaining goods, materials or
services, (iv) Indebtedness represented by Disqualified Capital Stock, (v) any
liability for federal, state, local or other taxes owed or owing by the Company,
(vi) that portion of any Indebtedness incurred in violation of Section 1007
(but, as to any such obligation, no such violation shall be deemed to exist for
purposes of this clause (vi) if the holder(s) of such obligation or their
representative and the Trustee shall have received an Officers' Certificate of
the Company to the effect that the incurrence of such Indebtedness does not (or,
in the case of revolving credit Indebtedness, that the incurrence of the entire
committed amount thereof at the date on which the initial borrowing thereunder
is made would not) violate Section 1007 of this Indenture), (vii) Indebtedness
which, when incurred and without respect to any election under Section 1111(b)
of Title 11, United States Code, is without recourse to the Company or any
Subsidiary of the Company and (viii) any Indebtedness which is, by its express
terms or the terms of any instrument creating, evidencing or governing the same,
subordinated or junior in right of payment to, the Securities.
"Significant Subsidiary" has the meaning ascribed to it under
Regulation S-X promulgated under the Exchange Act.
14
"Special Interest" in respect of a repurchase of a Security (or a
portion thereof) upon a Change of Control or a conversion of a Security (or
portion thereof) means the amount of interest that would have accrued on such
Security (or portion thereof being converted or repurchased) from the Repurchase
Date or Conversion Date, as applicable, through the First Redemption Date, as if
such Security (or portion thereof) had not been repurchased or converted,
provided that the aggregate amount of Special Interest payable in respect of a
conversion shall not exceed 30 months of interest unless such conversion is in
connection with a Change of Control.
"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 (including, but not limited to, Additional
Interest), 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", with respect to any Person, means (i) any corporation of
which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person or (ii) any
other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.
"Total Conversion Amount" means the sum of (i) the Converted Amount
plus (ii) unless converted after any Regular Record Date and on or prior to the
next succeeding Interest Payment Date in which case the provisions of the last
paragraph of Section 307 shall apply, accrued and unpaid interest on the
Converted Amount through the Conversion Date plus (iii) if the Conversion Date
is prior to the First Redemption Date, an amount equal to Special Interest on
the Converted Amount.
"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.
"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.
"Twenty Day Average" means, with respect to any prices and in
connection with the calculation of Fair Market Value, the average of such prices
over the twenty Business Days ending on the Business Day immediately prior to
the day as of which "Fair Market Value" is being determined.
"Vice President", when used with respect to the Company means any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president".
15
"Voting Stock" of a Person means any class or all classes of capital
stock or other interests (including partnership interests) or Indebtedness of
such Person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof.
"Wholly Owned Subsidiary" of any Person means any Subsidiary of such
Person of which all the outstanding voting securities (other than in the case of
a foreign Subsidiary, directors' qualifying shares or an immaterial amount of
shares required to be owned by other Persons pursuant to applicable law) are
owned by such Person or any Wholly Owned Subsidiary of such Person.
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 such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or opinion has
read such covenant or condition and the definitions herein relating
thereto; (b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (c) a statement that,
in the opinion of each such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(b) 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 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 certification or Opinion of
Counsel unless such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
16
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate of public officials or 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 agents 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.
(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 Company may, in the circumstances permitted by the Trust Indenture Act,
fix any day as the record date for the purpose of determining the Holders
entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders. If not set by the
Company prior to the first solicitation of a Holder made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation or vote,
as the case may be. With regard to any record date, only the Holders on
such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action. Notwithstanding the foregoing, the
Company shall not set a record date for, and the provisions of this
paragraph shall not apply with respect to, any Act by the Holders pursuant
to Section 501, 502 or 512.
(d) The ownership of Securities shall be proved by the Security Register.
17
(e) Any 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 therefor 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.
(f) Without limiting the foregoing, a Holder entitled hereunder to give or take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal
amount.
SECTION 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any Act of Holders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at the address specified in the first paragraph of this
Indenture or such other address as previously furnished in writing by the
Trustee ,or
(b) the Company by the Trustee or by any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company, addressed
to it at the address of its principal executive offices specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
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 any 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.
18
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 to be 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.
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, the holders of Senior Indebtedness and the Holders of Securities, 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, but without regard to the
principles of conflicts of laws of such State.
SECTION 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security or the last date on which a Holder has the right to
convert his Securities shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal and premium if any, or conversion of the Securities need not be made
on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, or on such last day for conversion; provided, that no
interest shall accrue for the
19
period from and after such Interest Payment Date, Redemption Date, Stated
Maturity or last day for conversion, as the case may be.
SECTION 114. No Security Interest Created.
----------------------------
Nothing in this Indenture or in the Securities, express or implied,
shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in
effect in any jurisdiction where property of the Company or its Subsidiaries is
or may be located.
SECTION 115. Limitation on Individual Liability.
----------------------------------
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Company or any successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever shall attach
to, or is or shall be incurred by, the incorporators, shareholders, officers or
directors, as such, of the Company or 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 Security 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, shareholder, 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
Security 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 issuance of such Security.
ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally.
---------------
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article, 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 any law or with the rules of any securities exchange on
which the Securities are listed or as may, consistently herewith, be determined
by the officers executing such Securities, as evidenced by their execution of
the Securities.
The definitive Securities (other than a Global Security) shall be
printed, lithographed or engraved or produced by any combination of these
methods on steel engraved
20
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all as determined by
the officers executing such Securities, as evidenced by their execution of such
Securities. A Global Security may be in the foregoing form or may be typewritten
form.
SECTION 202. Form of Face of Security.
------------------------
A legend in substantially the following form shall appear on the face
of each Security (unless otherwise permitted by the provisions of Section
313(b)):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD EXCEPT
IN COMPLIANCE THEREWITH. THIS SECURITY IS SUBJECT TO RESTRICTIONS ON TRANSFER
AS SET FORTH IN THE INDENTURE DATED AS OF ____________ ___, 1999.
A legend in substantially the following form shall appear on the face
of each Global Security:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
REFERRED TO BELOW AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE
OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY
AGENT THEREOF AS THE OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
A legend in substantially the following form shall also 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, 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, 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 OF SUCH SUCCESSOR DEPOSITARY.
21
BUILDING ONE SERVICES CORPORATION
71/2% Convertible Junior Subordinated Debentures Due 2012
No. ________ $___________
BUILDING ONE SERVICES CORPORATION, a corporation duly organized and
existing under the laws of the State 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, upon presentment and
surrender hereof, the principal sum of ________________ Dollars on _______,
2012, and to pay interest thereon from and including the date of the initial
issuance of Securities under this Indenture or from and including the most
recent Interest Payment Date to which interest has been paid or duly provided
for, quarterly on ____, ____, ____ and ________ __, in each year, commencing
_______ , 1999 at the rate of 71/2% per annum (provided, that, if the Charter
-------- ----
Amendment has not been Duly Adopted by the Charter Amendment Deadline, the
interest rate applicable to the principal sum of the Securities shall be
increased to 121/2% from and after the Charter Amendment Deadline until the date
the Charter Amendment is Duly Adopted, whereupon it shall revert to 71/2% for
the periods thereafter), until the principal hereof is paid or made available
for payment. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the ____, ____, ____ or ____ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. On any
Interest Payment Date occurring on or prior to the third anniversary of the
Original Issuance Date, the Company shall pay interest on this Security through
the issuance of additional Securities ("Additional Securities"), provided that
the Company may, at its option, pay such interest in whole in cash. On any
Interest Payment Date occurring after the third anniversary and on or prior to
the fifth anniversary of the Original Issuance Date, the Company shall pay
interest on this Security through the issuance of Additional Securities,
provided that at the option of either the Requisite Holders or the Company, the
Company shall pay such interest in whole in cash. Such Additional Securities
shall be in an aggregate principal amount equal to the amount of interest that
would be payable with respect to this Security on such Interest Payment Date
(less all cash payments, if any, made in respect of interest payable on such
Interest Payment Date) and such Additional Securities shall be identical to the
Securities otherwise issued. Such Additional Securities shall be issued only in
denominations of $1,000 and multiples thereof. Any interest due and payable in
Additional Securities which cannot be paid in Securities because such portion of
the payment would require the issuance of a Security in a denomination other
than a multiple of $1,000 shall be paid in cash. For purposes of the foregoing
sentence, all Securities owned of record by a Holder shall be aggregated.
Except as expressly provided herein, the term "Securities" shall include all
Additional Securities that may be issued pursuant to this paragraph. From and
after the fifth anniversary of the Original Issuance Date, all interest on this
Security shall be paid in cash. Payment of the principal of and premium, if any,
and interest on this Security payable in cash will be made at the office or
agency of the Company maintained for that purpose pursuant to Section 1002 of
the Indenture, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public
22
and private debts; provided, however, that at the option of the Company payment
of interest in cash may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Upon a conversion of this Security or upon a repurchase of this
Security upon a Change of Control, the Holder shall be paid additional interest
equal to the Special Interest with respect thereto, as set forth in this
Security and in this Indenture.
In addition, in the event any dividends are declared with respect to
the Common Stock of the Company, the Holder of this Security as of the record
date established by the Board of Directors for such dividend shall be entitled
to receive as additional interest ("Additional Interest") hereunder an amount
(whether in the form of cash, securities or other property) equal to the amount
(and in the form) of the dividends that such Holder would have received had this
Security been converted into Common Stock as of the record date of such dividend
such Additional Interest to be payable on the payment date of the dividend
established by the Board of Directors of the Company (the "Additional Interest
Payment Date"). The record date for any such Additional Interest ("Additional
Interest Record Date") shall be the record date for the applicable dividend, and
any such Additional Interest shall be payable on the Additional Interest Payment
Date to the Persons in whose name this Security (or one or more predecessor
Securities) is registered at the close of business on such Additional Interest
Record Date.
At the option of the Requisite Holders, exercised prior to each
Additional Interest Payment Date, the Conversion Price shall be reduced by the
amount of the Additional Interest payable with respect to each Security in lieu
of payment of such Additional Interest. As used in this Security, the "amount"
of Additional Interest shall be the face amount of any cash, the Fair Market
Value of any security, and the fair market value, as determined by the Board of
Directors acting in good faith, of any other property.
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 or
Additional Interest Record Date, as applicable, 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 Trustee or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture. Notice
of a Special Record Date shall be given to Holders of Securities not less than
ten days prior to such Special Record Date.
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.
23
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: _________________ BUILDING ONE SERVICES CORPORATION
Attest: By _________________________
Title
___________________
Title
SECTION 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of Securities of the
Company designated as its 71/2% Convertible Junior Subordinated Debentures Due
2012 (herein called the "Securities"), limited in aggregate principal amount to
$100,000,000 plus the aggregate principal amount of all Additional Securities
issued under the Indenture, dated as of _________, 1999 (herein called the
"Indenture"), between the Company and ___________________, 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 Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered.
Subject to and upon compliance with the provisions of the Indenture,
the Holder of this Security is entitled, at his option, at any time to convert
this Security (or any portion of the principal amount hereof which is $1,000 or
an integral multiple thereof), into a number of fully paid and non-assessable
shares (calculated as to each conversion to the nearest 1/100th of a share) of
Common Stock of the Company calculated by dividing the Total Conversion Amount
of this Security (or if less than the entire principal amount of the Security is
being converted, the Total Conversion Amount of the portion being converted) by
the Conversion Price in effect at the close of business on the Conversion Date.
The Conversion Price shall be permanently reduced by $1.00 on the date (the
"Conversion Price Reduction Date") 90 days after the Charter Amendment Deadline
if the Charter Amendment has not been Duly Adopted by the Conversion Price
Reduction Date and shall be further permanently reduced by successive decrements
of $1.00 at the end of every three month period thereafter (a "Three Month
Period"), unless the Charter Amendment shall have been Duly Adopted during such
Three Month Period; provided, that, the maximum reduction in the Conversion
-------- ----
Price pursuant to this sentence shall be limited to $4.00. In the event the
Conversion Price is increased pursuant to Section 1304(e), the $1.00 per share
Conversion Price adjustment and $4.00 per share maximum adjustment referred to
in the prior sentence shall each be increased by the same percentage as the
Conversion Price./1/
-------------------
/1/ The last two sentences of this paragraph may be moved to a new subsection of
Section 1304 in the final form of this Indenture.
24
Conversion shall be effected by surrender of this Security, duly
endorsed or assigned to the Company or in blank, to the Company at its office or
agency maintained for that purpose pursuant to Section 1002 of the Indenture,
accompanied by written notice to the Company in the form provided in this
Security (or such other notice as is acceptable to the Company) that the Holder
hereof elects to convert this Security, or if less than the entire principal
amount hereof is to be converted, the portion hereof to be converted, except in
case this Security or a portion hereof is called for redemption, then this
Security or such portion hereof may be converted until and including, but
(unless the Company defaults in making the payment due upon redemption) not
after, the close of business on the Business Day immediately preceding the
Redemption Date.
No fractional shares or scrip representing fractions of shares will be
issued on conversion, but instead of any fractional share the Company shall pay
a cash adjustment as provided in the Indenture. The Conversion Price is subject
to adjustment as provided in the Indenture. In addition, the Indenture provides
that in case of certain consolidations, mergers or statutory exchanges of
securities with another corporation to which the Company is a party or the sale
or conveyance of the assets of the Company substantially as an entirety, the
Indenture shall be amended, without the consent of any Holders of Securities, 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 the
consolidation, merger, statutory exchange or transfer by a holder of the number
of shares of Common Stock into which this Security was convertible immediately
prior to such consolidation, merger, statutory exchange or transfer (assuming
such holder of Common Stock failed to exercise any rights of election and
received per share the kind and amount of consideration received per share by a
plurality of non- electing shares).
The Securities are subject to redemption upon not less than 60 and not
more than 120 days' notice by mail, at any time on or after the First Redemption
Date, as a whole and not less than in whole, at the election of the Company, at
103% of the sum of (a) the principal amount thereof plus (b) accrued interest
to the Redemption Date (the "Redemption Price"), provided that interest
installments whose Maturity is on or prior to such Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates, all
as provided in the Indenture.
If all accrued interest on the Securities has not been paid, the
Company may not purchase or acquire any Security otherwise than pursuant to a
purchase or exchange offer made on the same terms to all holders of the
Securities.
In certain circumstances involving the occurrence of a Change in
Control (as defined in the Indenture), the Holder hereof shall have the right to
require the Company to repurchase this Security (or any portion of the principal
amount hereof which is $1,000 or an integral multiple thereof) at 100% of the
principal amount hereof (or of such portion), together with accrued interest to
the Repurchase Date plus, if applicable, Special Interest, all of which shall be
paid in cash but interest installments whose Stated Maturity is on or prior to
such Repurchase Date will be payable to the Holders of such Securities, or one
or more Predecessor Securities, of record at the close of business on the
relevant Record Dates, all as provided in the Indenture.
25
In the event of conversion or repurchase of this Security in part only,
a new Security or Securities for the unconverted or unpurchased portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
Any Securities called for redemption, unless surrendered for conversion
by the close of business on the Business Day immediately preceding the date
fixed for redemption, are subject to being purchased from the Holder of such
Securities at the redemption price by one or more investment banking firms or
other purchasers who may agree with the Company to purchase such Securities and
convert them into Common Stock.
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 Securities 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 Securities 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 Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, 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 herefor 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 at the times, place and rate, and in the coin or
currency, herein prescribed or to convert this Security as provided herein and
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 in any place where the principal of and premium,
if any, and interest on this Security are payable, 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, in each
26
case, with an appropriate signature guarantee, and thereupon one or more new
Securities, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in fully registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer
or exchange except as provided in the Indenture. 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, except as provided in this Security, 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.
FORM OF CONVERSION NOTICE
TO BUILDING ONE SERVICES CORPORATION:
The undersigned registered owner of this Security hereby irrevocably
exercises the option to convert this Security, or the portion hereof (which is
$1,000 or a multiple thereof) designated below, into shares of Common Stock in
accordance with the terms of the Indenture referred to in this Security, and
directs that the shares issuable and deliverable upon the conversion, together
with any check in payment for a fractional share and any Security representing
any unconverted principal amount hereof, be issued and delivered to the
registered owner hereof unless a different name has been provided below. If
shares or any portion of this Security not converted are to be issued in the
name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto.
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 Exchange Act.
27
______________________________
Signature Guarantee
Fill in for registration of shares of Common Stock if they are to be
delivered, or Securities if they are to be issued, other than to and in the name
of the registered owner:
______________________________
(Name)
______________________________
(Street Address)
______________________________
(City, State and Zip code)
(Please print name and address)
Register: _____ Common Stock
_____ Securities
(Check appropriate line(s)).
Principal amount to be converted (if less than all):
$__________,000
-----------------------------------
Social Security or other Taxpayer
Identification Number of owner
Form of Option of Holder to Elect Purchase
If you want to elect to have this Debenture purchased by the Company
pursuant to Section 1401 of the Indenture, check this box [ ].
If you want to elect to have only part of the Debenture purchased by
the Company pursuant to Section 1401 of the Indenture, state the amount you
elect to have purchased: $ _____
Date:____________ Your Signature
--------------------------------------------
(Sign exactly as your name appears on the Security)
Tax Identification No.: _______________________
-----------------------
Signature Guarantee
28
SECTION 204. 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
ARTICLE III
THE SECURITIES
SECTION 301. Title and Terms.
---------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $100,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306, 906, 1108, 1302 or 1405 and except for Additional Securities.
The Securities shall be known and designated as the "71/2% Convertible
Junior Subordinated Debentures Due 2012" of the Company. Their Stated Maturity
shall be __________, 2012 and they shall bear interest at the rate of 71/2% per
annum (provided, that, if the Charter Amendment has not been Duly Adopted by the
-------- ----
Charter Amendment Deadline, the interest rate applicable to the principal amount
of the Securities shall be increased to 121/2% from and after the Charter
Amendment Deadline until the date the Charter Amendment is Duly Adopted,
whereupon it shall revert to 71/2% for the periods thereafter), from and
including the Original Issuance Date or from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for, as
the case may be, payable quarterly on _______, _______, _______, and ________,
commencing __________ ___, 1999, until the principal thereof is paid or made
available for payment. Each payment of interest shall include interest accrued
to but excluding the Interest Payment Date on which payment is to be made. The
Holders of the Securities shall also be entitled to receive Special Interest and
Additional Interest from time to time to the extent provided in the Securities.
The principal of and premium, if any, and interest on the Securities
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 in cash may be made by check mailed to the address
of the Person entitled thereto as such address shall appear in the Security
Register.
29
The Securities shall be redeemable as provided in Article 11.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article 12.
The Securities shall be convertible as provided in Article 13.
The Securities shall be subject to repurchase at the option of the
Holder as provided in Article 14.
SECTION 302. Denominations.
-------------
The Securities shall be issuable only in fully registered form without
coupons and only in denominations 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 President or one of its Vice Presidents, under its
corporate seal or a facsimile thereof reproduced thereon 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 Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall either at one time or from time to time pursuant
to such instructions as may be described therein authenticate and deliver such
Securities as in this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
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 and is entitled to the
benefits of the Indenture.
SECTION 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities, the Company may
execute, and upon receipt of a Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any
30
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities.
Every such temporary Security shall be executed by the Company and shall be
authenticated and delivered by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive
Security or Securities in lieu of which it is issued.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor one or more definitive Securities of a like
principal amount of authorized denominations. Until so exchanged the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
For purposes of this Section 304 each Global Security shall be
considered a definitive Security.
SECTION 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
(a) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided. At all reasonable times the Security
Register shall be open for inspection by the Company.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at the office or agency
maintained for that purpose. 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.
(b) All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange. Every
Security presented or surrendered for registration of transfer or for exchange
31
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, and, in the case of a transfer, with an
appropriate guarantee of signature.
No service charge shall be made for any registration of transfer or
exchange of Securities except as provided in Section 306. The Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 304, 906, 1108,
1302 or 1405 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 1104 and ending at the close of business
on the day of such mailing, (ii) to register the transfer of or exchange of any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part, or (iii) to register the
transfer or exchange of any Securities surrendered for conversion or repurchase
upon the occurrence of a Change in Control.
The provisions of clauses (1), (2), (3), (4) and (5) below shall apply
only to Global Securities;
(1) Each Global Security authenticated under this Indenture shall
be registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part may be
registered, in the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (i) such Depositary (A) has
notified the Company that it is unwilling or unable to continue as
Depositary for such Global Note or (B) has ceased to be a clearing agency
registered under the Exchange Act or (ii) the Company at any time in its
sole discretion determines not to have Global Securities and shall so
notify the Depositary and Trustee.
(3) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion thereof
shall be registered in such names as the Depositary for such Global
Security shall direct.
32
(4) Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Article Three or otherwise, shall
be authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a Person other
than the Depositary for such Global Security or a nominee thereof.
(5) The Depositary or its nominee, as registered owner of a
Global Security, shall be the Holder of such Global Security for all
purposes under this Indenture and the Securities, and owners of beneficial
interests in a Global Security shall hold such interests pursuant to the
Applicable Procedures. Accordingly, any such owner's beneficial interest in
a Global Security will be shown only on, and the transfer of such interest
shall be effected only through records maintained by the Depositary or its
nominee or its Agent Members and such owners of beneficial interests in a
Global Security will not be considered the owners or holders thereof.
Neither the Company nor the Trustee will have any responsibility or
obligation to the Depositary or any of its Agent Members with respect to
(i) the accuracy of any records maintained by the Depositary (ii) the
payment by the Depositary or any Agent Members of any amount due to any
owner of beneficial interests in a Global Security in respect of any
Securities, (iii) the delivery of any notice by the Depositary or any Agent
Member, or (iv) any other action taken by the Depositary or any Agent
Members.
(c) Nothing contained in this Section 305 shall be deemed to
impair the Holders' rights to convert the Securities.
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 like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence
to their satisfaction of the destruction, loss or theft of any Security and (b)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of 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
33
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security 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 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 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. Interest
on any Security which is payable, and is punctually paid or duly provided for,
on any Additional 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 Additional Interest Record Date for such Additional
Interest. At the option of the Company, cash interest on any Security may be
paid by mailing checks to the addresses of the Holders thereof as such addresses
appear in the Securities Register.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date or Additional Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date or Additional Interest
Record Date, as applicable by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment, which payment date shall be at least 30 calendar days after
such notice delivered by the Company to the Trustee (or such shorter period as
is satisfactory to the Trustee), and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon, the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall
34
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 at his address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (b).
(b) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date; provided,
however, that Securities so surrendered for conversion shall (except in the case
of Securities or portions thereof (i) which have been called for redemption or
(ii) as to which there exists a default in the payment of interest thereon) be
accompanied by, at the option of the Holder of this Security, either (i) payment
in funds acceptable to the Company of an amount equal to the interest payable on
such Interest Payment Date on the principal amount being surrendered for
conversion or (ii) the delivery of Securities to the Company for surrender
having a principal amount equal to the interest payable on such Interest Payment
Date on the principal amount being surrendered for conversion.
SECTION 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and premium, if
any, and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
35
SECTION 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer, exchange or conversion shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and 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.
SECTION 310. Computation of Interest.
-----------------------
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION 311. CUSIP Number.
------------
The Company in issuing the Securities may use a "CUSIP" number and, if
it does so, the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; provided that such notice may state that
no representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities and that reliance may be placed only
on the other identification numbers printed on the Securities. The Company shall
promptly notify the Trustee of any change in the CUSIP number.
SECTION 312. Restrictions on Transfer.
------------------------
From and after the Original Issuance Date and their respective dates
of issuance, as the case may be, neither the Securities, any Additional
Securities nor any interest therein shall be transferable except upon the
conditions specified in Sections 312 through 314, which conditions are intended
to ensure compliance with the provisions of the Securities Act in respect of the
transfer of any of the Securities, any Additional Securities or any interest
therein. Each Holder will cause any proposed transferee of its Securities and
any Additional Securities (or any interest therein) to agree that any transfer
thereof shall be subject to the provisions and upon the conditions specified in
Sections 312 through 314.
SECTION 313. Restrictive Legends.
-------------------
(a) Each certificate of Securities shall (unless otherwise permitted by
the provisions of Section 313(b) and Section 314) include a legend in
substantially the following form:
THIS SECURITY AND THE COMMON STOCK ISSUABLE ON CONVERSION HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS AND MAY NOT BE
36
OFFERED OR SOLD EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS SUBJECT
TO RESTRICTIONS ON TRANSFER AS SET FORTH IN THE INDENTURE DATED AS OF
____________ ___, 1999.
(b) Subject to Section 314, any holders of Securities registered
pursuant to the Securities Act and qualified under applicable state securities
laws may exchange such Securities on transfer for new Securities that shall not
bear the legend set forth in paragraph (a) of this Section 313. SECTION 314
Notice of Proposed Transfers .
SECTION 314 Notice of Proposed Transfers.
----------------------------
Upon any proposed transfer of Securities, the Company shall register
the transfer of such Securities if the Company shall have received (i) to the
extent required to ensure compliance with the Securities Act, an opinion of
counsel reasonable satisfactory to the Company, addressed to the Company, to the
effect that the proposed transfer of the Securities may be effected without
registration under the Securities Act, and (ii) representation letters in form
and substance reasonably satisfactory to the Company to ensure compliance with
the provisions of the Securities Act. Each certificate evidencing the
Securities transferred as above provided shall bear the legend set forth in
Section 313(a) except that such certificate shall not bear such legend if the
opinion of counsel referred to above is to the further effect that neither such
legend nor the restrictions on transfer in Sections 312 through 314 are required
in order to ensure compliance with the provisions of the Securities Act.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further
effect (except as to rights of conversion or registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered (other
than (A) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (B)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee
for cancellation
37
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity
within one year, or
(C) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company, or
(D) are delivered to the Trustee for conversion in
accordance with Article 13;
and the Company, in the case of (A), (B), (C) or (D) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for cancellation for
principal and premium, if any, and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with. Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614 and, if
money shall have been deposited with the Trustee pursuant to subclause (ii) of
Clause (a) of this Section, 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. All moneys deposited with the Trustee pursuant to Section 401 (and held
by it or any Paying Agent) for the payment of Securities subsequently converted
shall be returned to the Company upon Company Request.
SECTION 403. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article 4 by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations
38
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to this Article 4 until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust with
respect to the Securities; provided, however, that if the Company makes any
payment of principal of or any premium or interest on any Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of the Securities to receive such payment from the money so held
in trust.
ARTICLE V
REMEDIES
SECTION 501. Events of Default.
-----------------
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article 12 or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of any interest upon any Security, when it
becomes due and payable, whether or not such payment is prohibited by the
provisions of Article 12, and continuance of such default for a period of 10
days; or
(b) default in the payment of the principal of or premium, if any, on
any Security at its Maturity, whether or not such payment is prohibited by the
provisions of Article 12; or
(c) default in the payment of the Repurchase Price in respect of any
Security on the Repurchase Date, whether or not such payment is prohibited by
the provisions of Article 12 or failure to provide timely notice of a Change in
Control as required by Section 1402; or
(d) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 45 days
after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(e) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or any Significant Subsidiary or
under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any indebtedness for money borrowed
by the Company or any Significant Subsidiary having an aggregate principal
amount of $10,000,000 or more, which default (i) is caused by, a failure to pay
the principal of or premium, if any, or interest on such indebtedness when due
and payable after the expiration of any applicable grace or forbearance period
with respect thereto or (ii) shall have resulted in such indebtedness becoming
or being declared due and payable prior to
39
the date on which it would otherwise have become due and payable, without such
acceleration having been rescinded or annulled, within a period of 30 days after
there shall have been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities a written notice specifying such
default and requiring the Company to cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder; or
(f) a final judgment or final judgments for the payment of money
against the Company or any Significant Subsidiary the entry by a court or courts
of competent jurisdiction of which remain undischarged for a period (during
which execution shall not be effectively stayed, the posting of any required
bond not being deemed an execution for purposes hereof) of 30 days, provided
that the aggregate amount of all such judgments exceeds $10,000,000 (net of
amounts to which the Company or such Significant Subsidiary is entitled pursuant
to insurance policies which can reasonably be expected to be paid in the
ordinary course); or
(g) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under any applicable Federal or
state bankruptcy, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Company or any Significant Subsidiary a bankrupt
or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any
Significant Subsidiary under any applicable Federal or State law, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any Significant Subsidiary 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 90 consecutive
days; or
(h) the commencement by the Company or any Significant Subsidiary 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 or any
Significant Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or any Significant Subsidiary 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 or any Significant Subsidiary in furtherance of any such action.
Upon receipt by the Trustee of any Notice of Default pursuant to this
Section 501, a record date shall automatically and without any other action by
any Person be set for the purpose of determining the Holders of Outstanding
Securities entitled to join in such Notice of Default, which record date shall
be the close of business on the day the Trustee receives such Notice of Default.
The Holders of Outstanding Securities on such record date (or their duly
40
appointed agents), and only such Persons, shall be entitled to join in such
Notice of Default, whether or not such Holders remain Holders after such record
date: provided, that unless such Notice of Default shall have become effective
by virtue of the Holders of the requisite principal amount of Outstanding
Securities on such record date (or their duly appointed agents) having joined
therein on or prior to the 90th day after such record date, such Notice of
Default shall automatically and without any action by any Person be canceled and
of no further force or effect.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default (other than an Event of Default specified in
Section 501(g) or (h)) occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities 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 plus
any interest accrued on the Securities to the date of declaration shall become
immediately due and payable. In the case of an Event of Default specified in
Section 501(g) or (h), all unpaid principal of and accrued interest on the
Securities then outstanding shall be due and payable immediately without any
declaration or other act on the part of the Trustee or the holders of
Securities.
At any time after such a declaration of acceleration 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, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay (i) all overdue interest on all Securities, (ii) the principal
of and premium, if any, on any Securities which have become due otherwise than
by such declaration of acceleration and interest thereon at the rate borne by
the Securities, (iii) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities, and (iv) all
sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel;
and
(b) all Events of Default, other than the nonpayment of the principal
of Securities which has become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission and waiver shall affect any subsequent default or
impair any right consequent thereon.
Upon receipt by the Trustee of any declaration of acceleration, or any
rescission and annulment of any such declaration, pursuant to this Section 502,
a record date shall automatically and without any other action by any Person be
set for the purpose of determining the Holders of Outstanding Securities
entitled to join in such declaration, or rescission and annulment, as the case
may be, which record date shall be the close of business on the day the
41
Trustee receives such declaration, or rescission and annulment, as the case may
be. The Holders of Outstanding Securities on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to join in such
declaration, or rescission and annulment, as the case may be, whether or not
such Holders remain Holders after such record date; provided, that unless such
declaration, or rescission and annulment, as the case may be, shall have become
effective by virtue of Holders of the requisite principal amount of Outstanding
Securities on such record date (or their duly appointed agents) having joined
therein on or prior to the 90th day after such record date, such declaration, or
rescission and annulment, as the case may be, shall automatically and without
any action by any Person be canceled and of no further force or effect.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(a) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period of
30 days, or
(b) default is made in the payment of the principal of or premium, if
any, on any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and 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
borne by the Securities, and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If an Event of Default specified in Section 503(a) or (b) occurs and
is continuing with respect to the Securities, the Trustee may recover judgment
in its own name and as trustee of an express trust against the Company for the
collection of such sums due and unpaid.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders 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 any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, including filing proofs of claim in federal bankruptcy proceedings,
to take any and all actions authorized under the Trust Indenture Act in order to
have the claims of the Holders and the Trustee allowed in any such proceeding.
In particular, the Trustee shall be authorized to collect and receive any moneys
or other property payable or deliverable on any such claims and to distribute
the same; and any custodian,
42
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and may be a member of the
Creditors' Committee.
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.
------------------------------
Subject to Article Twelve, 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 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: The balance, if any, to the Company or any other Person or
Persons determined to be entitled thereto.
43
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(a) such Xxxxxx has previously given written notice to the Trustee of a
continuing Event of Default; (b) 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; (c) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request; (d) the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity has failed to institute
any such proceeding; and(e)no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities; it being understood
and intended that no one or more 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 Holders, or to obtain or to
seek to obtain priority or preference over any other 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 and to Convert.
-----------------------
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 or, in the
case of a repurchase pursuant to Article Fourteen, on the Repurchase Date) and
to convert such Security in accordance with Article Thirteen and to institute
suit for the enforcement of any such payment and right to convert, and such
rights shall not be impaired without the consent of such Holder.
SECTION 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.
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 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
44
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.
------------------
The Requisite Holders shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee; provided, that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture; and
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(c) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good faith
shall determine that the action so directed would involve the Trustee in
personal liability or would be unduly prejudicial to Holders not joining in such
direction.
Upon receipt by the Trustee of any such direction, a record date shall
automatically and without any other action by any Person be set for the purpose
of determining the Holders of Outstanding Securities entitled to join in such
direction, which record date shall be the close of business on the day the
Trustee receives such direction. The Holders of Outstanding Securities on such
record date (or their duly appointed agents), and only such Persons, shall be
entitled to join in such direction, whether or not such Holders remain Holders
after such record date; provided, that unless such direction shall have become
effective by virtue of Holders of the requisite principal amount of Outstanding
Securities on such record date (or their duly appointed agents) having joined
therein on or prior to the 90th day after such record date, such direction shall
automatically and without any action by any Person be canceled and of no further
force or effect.
SECTION 513. Waiver of Past Defaults.
-----------------------
The Requisite Holders may on behalf of the Holders of all the
Securities waive any past default hereunder and its consequences, except a
default
45
(a) in the payment of the principal of or premium, if any, or interest
on any Security, or, without the consent of the Holder of the Security affected,
in the repurchase of any Security or part thereof in accordance with Article
Fourteen, or
(b) 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 in its discretion may require any party
litigant in such suit to file an undertaking to pay the costs of such suit, and
may assess reasonable costs against any such party litigant, including
reasonable attorneys' fees, in the manner and to the extent provided in the
Trust Indenture Act; provided, that this Section shall not be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company or in any suit for the enforcement of the
right to convert any Security in accordance with Article 13.
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 or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so
46
provided, every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 602. Notice of Defaults.
------------------
The Trustee shall give the Holders notice of any default hereunder in
the manner and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(d), no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default. Notwithstanding the foregoing, the Trustee shall be
entitled to withhold notice of any default hereunder to the extent permitted by
Section 315(b) of the Trust Indenture Act.
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, 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 its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel satisfactory to it and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
47
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be required to give any bond or surety in respect of
the performance of its powers and duties hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of the
Company, and the Trustee and any Authenticating Agent assume 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 and any
Authenticating Agent 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 or any Paying Agent in trust hereunder need
not be segregated from other funds except to the extent required by law. The
Trustee or any Paying Agent shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
------------------------------
The Company agrees:
(a) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder as may be mutually agreed upon in writing
by the Company and the Trustee (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable
48
compensation and the expenses and disbursements of its agents and counsel)
except to the extent any such expense, disbursement or advance may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
trust, 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.
(d) As security for the performance of the obligations of the Company
under this Section 607, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the Holders of particular Securities.
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
corporation organized and doing business under the laws of the United States of
America, or any State or Territory or the District of Columbia that (a) is
eligible pursuant to the Trust Indenture Act to act as such, (b) has (or, in the
case of a corporation included in a bank holding company system, whose related
bank holding company has) a combined capital and surplus of at least $50,000,000
and (c) has an office in the Borough of Manhattan, The City of New York as
required by Section 1002. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of a Federal or state
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. No obligor upon the Securities or Affiliate of such obligor shall
serve as Trustee upon the Securities. If at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 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 in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If an instrument of acceptance by a successor Trustee required
by Section 611 shall
49
not have been delivered to the resigning 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.
(c) The Trustee may be removed at any time by an Act of the Holders of
a majority in principal amount of the Outstanding Securities delivered to the
Trustee and to the Company.
(d) If at any time:
(i) 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 the last six months, or
(ii) 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
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee, or (B) 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 and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee and
such successor Trustee shall comply with the applicable requirements of Section
611. If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
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 successor Trustee and
supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, 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 appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
50
SECTION 611. Acceptance of Appointment by Successor.
--------------------------------------
Every successor Trustee appointed hereunder 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 request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. 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.
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, 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.
-------------------------------------------------
The Trustee shall comply with Section 311 of the Trust Indenture Act,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311 of the Trust Indenture Act to the extent indicated therein.
SECTION 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer, partial
conversion or partial redemption, 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
51
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 Person 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 Person into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such Person 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 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 under this Section 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 to act as such under the
provisions of this Section.
Any Authenticating Agent by the acceptance of its appointment shall be
deemed to have represented to the Trustee that it is eligible for appointment as
Authenticating Agent under this Section and to have agreed with the Trustee
that: it will perform and carry out the duties of an Authenticating Agent as
herein set forth, including among other things the duties to authenticate
Securities when presented to it in connection with the original issuance and
with exchanges, registrations of transfer or redemptions or conversions thereof
or pursuant to Section 306; it will keep and maintain, and furnish to the
Trustee from time to time as requested by the Trustee, appropriate records of
all transactions carried out by it as Authenticating Agent and will furnish the
Trustee such other information and reports as the Trustee may reasonably
require; and it will notify the Trustee promptly if it shall cease to be
eligible to act as Authenticating Agent in accordance with the provisions of
this Section. Any Authenticating Agent by the acceptance of its appointment
shall be deemed to have agreed with the Trustee to indemnify the Trustee against
any loss, liability or expense incurred by the Trustee and to defend any claim
52
asserted against the Trustee by reason of any acts or failures to act of such
Authenticating Agent, but such Authenticating Agent shall have no liability for
any action taken by it in accordance with the specific written direction of the
Trustee.
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.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in lieu of 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_____________________________________
As Authenticating Agent
By_____________________________________
Authorized Officer
ARTICLE VII
HOLDERS' LIST 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:
(a) quarterly not more than 15 days after each Regular Record Date,
a list, in such form as the Trustee may reasonably require containing all the
information in the possession or control of the Company, or any of its Paying
Agents, other than the Trustee, as to the names and addresses of the Holders 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. Notwithstanding the foregoing, so long as the Trustee is
the Security Registrar, no such list shall be required to be furnished.
53
SECTION 702. Preservation of Information; Communication to Holders.
-----------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders 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) The Company, the Trustee and any other Person shall have the
protection of Section 312(c) of the Trust Indenture Act. SECTION 703. Reports by
Trustee.
SECTION 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports dated as of
May 15 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 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 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 Exchange Act, as amended, shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company, unless:
(a) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person which
54
acquires by conveyance or transfer, or which leases, the properties and assets
of the Company substantially as an entirety shall be a corporation, 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 and shall have provided for conversion
rights in accordance with Section 1311;
(b) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing;
(c) such consolidation, merger, conveyance, transfer or lease does
not adversely affect the validity or enforceability of the Securities; and
(d) 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.
SECTION 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer 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 into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named 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 IX
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:
55
(a) to evidence the succession of another Person to the Company, or
successive successions, and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(b) to add to the covenants of the Company for the benefit of the
Holders or an additional Event of Default, or to surrender any right or power
herein conferred upon the Company; or
(c) to secure the Securities; or
(d) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Section 1311; or
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities; or
(f) to cause the Indenture and the Securities to comply with
applicable law, including the Securities Act and Trust Indenture Act; or
(g) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of this
Indenture; provided, that such action pursuant to this clause (g) shall not
adversely affect the interests of the Holders in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each outstanding Security affected thereby,
(a) change the Stated Maturity of the principal of, or any installment
of interest on, any Security, or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon the redemption thereof, or
impair the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or make the principal thereof or any premium or interest
thereon payable in any coin or currency other than that provided for in the form
of Security hereinabove set forth or modify the provisions of this Indenture
with respect to the subordination of the Securities in a manner adverse to the
Holders, or impair the right to convert the Securities into Common Stock or to
require the Company to repurchase the Securities upon the occurrence of a Change
in Control, subject to the terms set forth herein, or
(b) 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
56
whose Holders is required for any waiver of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences provided
for in this Indenture, or
(c) modify any of the provisions of this Section, Section 513 or
Section 1006, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby; provided,
however, that this Clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1006, or the deletion of this
proviso, in accordance with the requirements of Section 901(e).
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 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. The Trustee may, but shall not
(except to the extent required in the case of a supplemental indenture entered
into under 901(f)) be obligated to, enter into any such supplemental indenture
which adversely affects in a material way 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.
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities 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 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.
57
SECTION 907. Notice of Supplemental Indenture.
--------------------------------
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 902, the Company shall transmit to
the Holders a notice setting forth the substance of such supplemental indenture.
ARTICLE X
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.
-------------------------------
The Company will maintain in New York, New York an office or agency
(which may be the Corporate Trust Office or other office of the Trustee) where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer, where Securities may be surrendered
for exchange, conversion or repurchase in accordance with the terms of this
Indenture and where notices and demands to or upon the Company in respect of the
Securities 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 any such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in New
York, New York 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 at any time act as its own Paying Agent, on or
before each due date of the principal of and premium, if any, or interest on any
of the Securities, the Company will segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal and
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 will promptly
notify the Trustee of its action or failure so to act.
58
Whenever the Company shall have one or more Paying Agents, on or prior
to each due date of the principal of and premium, if any, or interest on any
Securities, the Company will deposit with a Paying Agent a sum sufficient to pay
the principal and any premium and 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 its action or failure
so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (a) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and hold all sums held by it for the payment
of principal of or any premium or interest on the Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided; and (b) at any time during
the continuance of any default by the Company (or any other obligor upon the
Securities) in the making of any payment in respect of the Securities, upon the
written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent for payment in respect of the Securities.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of and premium, if
any, or interest on any Security and remaining unclaimed for two years after
such principal and premium, if any, or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in New York, 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 will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate stating whether or not to the best knowledge of the signers thereof
the Company is in compliance with all conditions and covenants under this
Indenture (without regard to any period of grace or
59
requirement of notice provided hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
SECTION 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 corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise,
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 1005, 1007 and 1009 if before the
time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities 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.
SECTION 1007. Limitation on Incurrence of Indebtedness.
----------------------------------------
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume, guarantee, acquire, become
liable, contingently or otherwise, with respect to, or otherwise become
responsible for payment of (collectively, "incur") any Indebtedness; unless (i)
no Default or Event of Default shall have occurred and be continuing at the time
of or as a consequence of the incurrence of any such Indebtedness and (ii) on
the date of the incurrence of such Indebtedness, after giving effect to the
incurrence thereof, the Consolidated Leverage Ratio of the Company is less than
4.0 to 1.0.
SECTION 1008. Compliance With Investor Rights Agreement.
-----------------------------------------
The Company shall comply with the covenants applicable to it under the
Investor Rights Agreement.
SECTION 1009. Limitation on Restricted Payments.
---------------------------------
The Company shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, (a) declare or pay any dividend or make
any distribution on or in respect of shares of its Capital Stock to holders of
such Capital Stock other than to the Company or to a Wholly-Owned Subsidiary of
the Company, (b) purchase, redeem or otherwise acquire or retire for value any
Capital Stock of the Company or any warrants, rights or options to purchase or
acquire shares of any class of such Capital Stock, or (c) make any principal
payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or
retire for value, prior to any
60
scheduled final maturity, scheduled repayment or scheduled sinking fund payment,
any Indebtedness of the Company that is subordinate or junior in right of
payment to the Securities (each of the foregoing actions set forth in clauses
(a), (b) and (c) being referred to as a "Restricted Payment"), if at the time of
such Restricted Payment or immediately after giving effect thereto, (i) a
Default or an Event of Default shall have occurred and be continuing or (ii) the
Company is not able to incur at least $1.00 of additional Indebtedness in
compliance with Section 1007 or (iii) the aggregate amount of Restricted
Payments (including such proposed Restricted Payment) made subsequent to the
Original Issuance Date (the amount expended for such purposes, if other than in
cash, being the fair market value of such property as determined reasonably and
in good faith by the Board of Directors of the Company) shall exceed the sum of:
(w) 50% of the cumulative Consolidated Net Income (or if cumulative Consolidated
Net Income shall be a loss, minus 100% of such loss) of the Company earned
subsequent to the Original Issuance Date and to the end of the Company's most
recently ended fiscal quarter for which financial statements are publicly
available at the time of such Restricted Payment (the "Reference Date")
(treating such period as a single accounting period); plus (x) 100% of the
aggregate net cash proceeds received by the Company from any Person (other than
a Subsidiary of the Company) from the issuance and sale subsequent to the
Original Issuance Date and on or prior to the Reference Date of Common Stock of
the Company.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption.
-------------------
The Securities may be redeemed at the election of the Company, in
whole but not in part, at any time on or after the First Redemption Date at the
Redemption Price specified in the form of Security hereinbefore set forth;
provided, however, that if all accrued interest (including, without limitation,
Additional Interest and Special Interest) on the Securities has not been paid,
the Company may not redeem any Security other than pursuant to a purchase or
exchange offer to all Holders of the Securities.
SECTION 1102. Applicability of Article.
------------------------
Redemption of Securities at the election of the Company as permitted
by any provision of this Indenture shall be made in accordance with such
provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem the Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company, the Company shall, at least 30 days prior to the
Redemption Date fixed by the Company (unless a shorter period shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities to be redeemed.
61
SECTION 1104. [Reserved.]
---------
SECTION 1105. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 60 nor more than 120 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) [reserved],
(d) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest thereon
will cease to accrue on and after said date,
(e) the Conversion Price, the date on which the right to convert the
Securities to be redeemed will terminate and the place or places where such
Securities may be surrendered for conversion, and
(f) the place or places where such Securities are to be surrendered
for payment of the Redemption Price. 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 request, by the Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
---------------------------
At or prior to 10:00 am on 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 sufficient to pay on such date 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 other than
any Securities called for redemption on that date which have been converted
prior to the Redemption Date.
If any Security called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held in
trust for the redemption of such Security shall (subject to any right of the
Holder of such Security or any Predecessor Security to receive interest as
provided in the last paragraph of Section 307) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such
trust.
62
SECTION 1107. 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) 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, on the later of the Redemption Date or the date such
Security is surrendered; provided, however, that installments of interest whose
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 as provided herein, the principal and premium,
if any, shall, until paid, bear interest from the Redemption Date at the rate
borne by the Security. The Company shall be deemed to have made payment as
provided herein if checks are mailed to the appropriate Persons not later than
the Business Day next subsequent to the Redemption Date.
SECTION 1108. [Reserved.]
---------
SECTION 1109. Conversion Arrangements on Call for Redemption.
----------------------------------------------
In connection with any redemption of Securities, the Company may
arrange for the purchase and conversion of any Securities surrendered for
redemption by an agreement with one or more investment banking firms or other
purchasers to purchase such Securities by paying to the Holders thereof, or to
the Trustee or Paying Agent in trust for such Holders, at or before 10:00 a.m.
on the Redemption Date, an amount not less than the Redemption Price, together
with interest accrued to the Redemption Date, payable by the Company on
redemption of such Securities. Notwithstanding anything to the contrary
contained in this Article Eleven, the obligation of the Company to pay the
Redemption Price of such Securities, together with interest accrued to the
Redemption Date, shall be satisfied and discharged to the extent such amount is
so paid by such purchasers. Pursuant to such an agreement, any Securities
tendered by the Holder thereof for redemption or not duly surrendered for
conversion by such Holder shall be deemed acquired by such purchasers from such
Holders and surrendered by such purchasers for conversion, all as of immediately
prior to the Close of Business on the Redemption Date, subject to payment of the
above amount as aforesaid.
SECTION 1110. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1211 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
63
SECTION 1111. Rights with respect to Conversion and Certain Payments.
------------------------------------------------------
Nothing contained in this Article or elsewhere in this Indenture
(including, without limitation, Article XII), or in any of the Securities, shall
prevent (x) the application by the Trustee or any paying agent (including by the
Company if the Company shall then be acting as paying agent) of any moneys
deposited with it hereunder to the payment of or on account of the principal of
and premium, if any, or interest on Securities, including, without limitation,
redemptions or repurchases pursuant to Articles Eleven or Fourteen, if, at the
time of such deposit (provided that the time of such deposit was not more than
10 days prior to the time of such payment), such payment would not have been
prohibited by the foregoing provisions of this Article, or (y) conversion of
Securities.
ARTICLE XII
SUBORDINATION OF SECURITIES
SECTION 1201. Securities Subordinated to Senior Indebtedness.
----------------------------------------------
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the indebtedness represented
by the Securities and the payment of the principal of and premium, if any, and
interest on each and all of the Securities, and the amount, if any, of the
Repurchase Price payable in respect of Securities pursuant to Article Fourteen,
are hereby expressly made subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness.
SECTION 1202. Payment Over of Proceeds Upon Dissolution, Etc.
----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding, relative to the Company or to its creditors, as such, or to a
substantial part of its assets, or (b) any proceeding for the liquidation,
dissolution or other winding up of the Company, whether total or partial,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company, then and in any such event
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 or
distribution of any kind or character, whether in cash, property or securities,
on account of principal of or premium, if any, or interest on the Securities,
(including the Repurchase Price payable in respect of Securities pursuant to
Article Fourteen), and to that end the holders of Senior Indebtedness shall be
entitled to receive, for application, to the payment thereof, any payment or
distribution of any kind or character, whether in cash, property or securities,
including any such payment or distribution which may be payable or deliverable
by reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities, which may be payable or
deliverable in respect of the Securities in any such case, proceeding,
dissolution, liquidation or other winding up or event.
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In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, prohibited by the foregoing, including
any such payment or distribution which may be payable or deliverable by reason
of the payment of any other indebtedness of the Company being subordinated to
the payment of the Securities, before all Senior Indebtedness is paid in full,
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, assignee, agent or other Person making payment or distribution of
assets of the Company for application to the 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.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include securities of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment that does not adversely
alter the rights of holders of Senior Indebtedness which are subordinated in
right of payment to all Senior Indebtedness which may at the time be outstanding
to substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article. The consolidation of the
Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the conveyance or transfer
of its properties and assets substantially as an entirety to another Person upon
the terms and conditions set forth in Article Eight shall not be deemed a
dissolution, winding up, liquidation, reorganization, assignment for the benefit
of creditors or marshalling of assets and liabilities of the Company for the
purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or which acquires by conveyance or transfer such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance or transfer, comply with the
conditions set forth in Article 8.
SECTION 1203. No Payment When Senior Indebtedness in Default.
----------------------------------------------
(a) In the event (i) and during the continuation of any default in the
payment of principal of, premium, if any, or interest on any Senior
Indebtedness, whether at the date of a required payment, maturity, upon
mandatory prepayment redemption or otherwise, or (ii) that any other default
with respect to any Senior Indebtedness shall have occurred and be continuing,
then no payment (including any payment which may be payable by reason of the
payment of any other indebtedness of the Company being subordinated to the
payment of the Securities) shall be made by the Company on account of the
principal of or premium, if any, or interest on the Securities or on account of
the purchase, redemption or other acquisition of Securities (x) in the case of
any default described in subclause (i) above, unless and until the Senior
Indebtedness to which such default relates is discharged or such default shall
have been cured or waived or shall have ceased to exist or the holders of such
Senior Indebtedness or their agents have waived the benefits of this Section
1203(a), and (y) in the case of any default specified in clause (ii) above,
during the period ("Payment Blockage Period") commencing on the date the Company
or the Trustee receives written notice of such default (a "Senior Default
Notice") from the (1) the agent for the lenders under the Credit Facility if
such default relates to the Credit Facility or any replacement thereof, or (2)
holders of at least 25% in principal amount of Designated Senior Indebtedness to
which such default relates or any representative of such holders if such default
does not relate to the Credit Facility or any replacement thereof, and ending on
the earlier of (A) 180 days after such date or (B) the date, if any, on which
the Senior Indebtedness to which such default relates is discharged or such
default shall have been cured or waived or shall have ceased to exist or the
holders of such Senior Indebtedness or their agents shall have waived the
benefits of this Section 1203(a); provided, however, that not more than one
Senior Default Notice shall be given during any period of 360 consecutive days,
regardless of the number of defaults with respect to Designated Senior
65
Indebtedness during such 360-day period. For all purposes of this Section 1203,
no event of default which existed or was continuing on the date of commencement
of any Payment Blockage Period with respect to any Designated Senior
Indebtedness shall be, or be made, the basis for the commencement of a second
Payment Blockage Period by the holders (or any agent or other representative
thereof) of such Designated Senior Indebtedness whether or not within a period
of 360 consecutive days, unless such event of default shall have been cured or
waived for a period of not less than 90 consecutive days (it being acknowledged
that any subsequent action, or any breach of any financial covenants for a
period commencing after the date of commencement of such Payment Blockage Period
that, in either case, would give rise to an event of default pursuant to any
provisions under which an event of default previously existed or was continuing
shall constitute a new event of default for this purpose).
(b) In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, then and in such event such payment shall
be paid over and delivered forthwith to the Company; provided, however, that the
Trustee shall only be required to return to the Company such payment or any
portion of such payment that is held by the Trustee.
The provisions of this Section shall not apply to any payment with
respect to which Section 1202 would be applicable.
SECTION 1204. Subrogation to Rights of Holders of Senior Indebtedness.
-------------------------------------------------------
Subject to the payment in full of all amounts due on or in respect of
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 (equally and ratably
with the holders of all indebtedness of the Company which by its express terms
is subordinated to other indebtedness of the Company to substantially the same
extent as the Securities are subordinated and is entitled to like rights of
subrogation) to the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of and premium, if any, and interest on
the Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of the Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article, and no payments
over pursuant to the provisions of this Article to the holders of Senior
Indebtedness by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior 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.
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SECTION 1205. 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 (a) impair, as among the Company, its creditors other than
holders of Senior Indebtedness 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 (b) 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; or (c) 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 and securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1206. Trustee to Effectuate Subordination.
-----------------------------------
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1207. 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 noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder 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 or extend the time of payment of, or renew or alter,
Senior Indebtedness, or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (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; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
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SECTION 1208. Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. 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, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any trustee therefor; and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 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 therefor) to
establish that such notice has been given by a holder of Senior Indebtedness (or
a trustee therefor). In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 1209. Reliance on Judicial Order or Certificate of Liquidating Agent.
--------------------------------------------------------------
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 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 such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
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 1210. 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 Securities
or to the Company or to any other Person cash, property or securities to which
holders of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise.
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SECTION 1211. Rights of Trustee as Holder of Senior Indebtedness; Preservation
----------------------------------------------------------------
of Trustee's Rights.
-------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1212. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1211 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 1213. Rights with respect to Conversion and Certain Payments.
------------------------------------------------------
Nothing contained in this Article or elsewhere in this Indenture, or in
any of the Securities, shall prevent (x) the application by the Trustee or any
paying agent (including by the Company if the Company shall then be acting as
paying agent) of any moneys deposited with it hereunder to the payment of or on
account of the principal of and premium, if any, or interest on Securities,
including, without limitation, redemptions or repurchases pursuant to Articles
Eleven or Fourteen, if, at the time of such deposit (provided that the time of
such deposit was not more than 10 days prior to the time of such payment), such
payment would not have been prohibited by the foregoing provisions of this
Article, or (y) conversion of Securities.
ARTICLE XIII
CONVERSION OF SECURITIES
SECTION 1301. Conversion Privilege and Conversion Price.
-----------------------------------------
Subject to and upon compliance with the provisions of this Article
Thirteen, the Holders shall be entitled, at their option, at any time to convert
any Security (or any portion of the principal amount thereof which is $1,000 or
an integral multiple thereof), into a number of fully paid and non-assessable
shares (calculated as to each conversion to the nearest 1/100th of a share) of
Common Stock of the Company calculated by dividing the Total Conversion Amount
of such Security (or if less than the entire principal amount of such Security
is being converted, the Total Conversion Amount of the portion being converted)
by the Conversion Price in effect at the close of business on the Conversion
Date. In case a Security is called for redemption, such conversion right in
respect of the Security called shall expire at the close of business on the
69
Business Day immediately preceding the Redemption Date, unless the Company
defaults in making the payment due upon redemption.
The Conversion Price shall be adjusted in certain instances as provided
in Sections 202, 203 and 1304.
SECTION 1302. Exercise of Conversion Privilege.
--------------------------------
In order to exercise the conversion privilege, the Holder of any
Security shall surrender such Security, duly endorsed or assigned to the Company
or in blank, at any office or agency of the Company maintained pursuant to
Section 1002, accompanied by written notice to the Company in the form provided
in the Security (or such other notice as is acceptable to the Company) at such
office or agency that the Holder elects to convert such Security or, if less
than the entire principal amount thereof is to be converted, the portion thereof
to be converted.
Securities shall be deemed to have been converted immediately prior to
the Close of Business on the day (the "Conversion Date") of surrender of such
Securities for conversion in accordance with the foregoing provisions, and at
such time the rights of the Holders of such Securities 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 as and after such time. As promptly as practicable on or after
the Conversion Date, the Company shall issue and shall deliver at any office or
agency of the Company maintained pursuant to Section 1002 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 1303. The shares of Common Stock issued upon conversion
shall be subject to the restrictions on transfer set forth in the Investors'
Rights Agreement and the certificates for the shares of Common Stock shall bear
the transfer restriction legend required by the Investors' Rights Agreement. If
the shares of Common Stock to be issued upon conversion of a Security are to be
registered in a name other than that of the Holder of such Security, then the
Person in whose name such shares of Common Stock are to be registered must
deliver the opinion of counsel and certificate required by Section 314 hereof.
Neither the Trustee nor any conversion agent or the Registrar shall be required
to register in a name other than that of the Holder of the Security being
converted, the shares of Common Stock issued upon conversion of any such
Security not so accompanied by such opinion and certificate.
In the case of any Security 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 Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security.
SECTION 1303. Fractions of Shares.
-------------------
No fractional share of Common Stock shall be issued upon conversion of
Securities. If more than one Security 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 Total
Conversion Amount of the Securities (or specified portions thereof) so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be issuable upon conversion of any Security or Securities (or
specified
70
portions thereof), the Company shall pay a cash adjustment in respect of such
fractional share in an amount equal to the product of such fraction multiplied
by the Fair Market Value of one share of Common Stock on the Conversion Date.
SECTION 1304. Adjustment of Conversion Price.
------------------------------
The Conversion Price shall be subject to adjustment from time to time
as follows:
(a) If the Company shall, at any time or from time to time after the
Original Issuance Date, issue any shares of Common Stock, options to purchase or
rights to subscribe for Common Stock, securities by their terms convertible into
or exchangeable for Common Stock, or options to purchase or rights to subscribe
for such convertible or exchangeable securities, other than Excluded Stock,
without consideration or for a consideration per share less than either (x) the
Conversion Price or (y) the Fair Market Value of the Common Stock, in effect
immediately prior to the issuance of such Common Stock or securities, then such
Conversion Price, as in effect immediately prior to each such issuance, shall
forthwith be lowered to a price equal to the price obtained by multiplying:
(1) the Conversion Price at which Securities were theretofore
convertible by
(2) a fraction of which (x) the denominator shall be the number of
shares of Common Stock outstanding on a fully-diluted basis immediately
after such issuance and (y) the numerator shall be the sum of (i) the
number of shares of Common Stock outstanding on a fully-diluted basis
immediately prior to the date of such issuance and (ii) the number of
additional shares of Common Stock which the aggregate consideration of
the number of shares of Common Stock so offered would purchase at the
greater of the Conversion Price or the Fair Market Value per share of
Common Stock.
For purposes of this Section 1304, "fully diluted basis" shall be
determined in accordance with the treasury method of GAAP.
(b) If the Company shall, at any time or from time to time after the
Original Issuance Date, directly or indirectly, redeem, purchase or otherwise
acquire any shares of Common Stock, options to purchase or rights to subscribe
for Common Stock, securities by their terms convertible into or exchangeable for
Common Stock, or options to purchase or rights to subscribe for such convertible
or exchangeable securities, for a consideration per share greater than the Fair
Market Value (plus, in the case of such options, rights, or securities, the
additional consideration required to be paid to the Company upon exercise,
conversion or exchange) for shares of Common Stock in effect immediately prior
to such event, then the Conversion Price, as in effect immediately prior to each
such event, shall forthwith be lowered to a price equal to the price obtained by
multiplying:
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(1) the Conversion Price at which Securities were theretofore
convertible by
(2) a fraction of which (x) the denominator shall be the Fair
Market Value per share of Common Stock immediately prior to such event and
(y) the numerator shall be the result of dividing:
i) (1) the product of (A) the number of shares of Common
Stock outstanding on a fully-diluted basis and (B) the Fair Market Value
per share of Common Stock, in each case immediately prior to such event,
minus (2) the aggregate consideration paid by the Company in such event
(plus, in the case of such options, rights, or convertible or exchangeable
securities, the aggregate additional consideration to be paid by the
Company upon exercise, conversion or exchange), by
ii) the number of shares of Common Stock outstanding on a
fully-diluted basis immediately after such redemption.
(c) For the purposes of any adjustment of a Conversion Price pursuant
to Sections 1304(a) or 1304(b) above, the following provisions shall be
applicable:
(1) In the case of the issuance of Common Stock for cash in a
public offering or private placement, the consideration shall be deemed to
be the amount of cash paid therefor before deducting therefrom any
discounts, commissions or placement fees payable by the Company to any
underwriter or placement agent in connection with the issuance and sale
thereof.
(2) In the case of the issuance of Common Stock for a
consideration in whole or in part other than cash, the consideration other
than cash shall be deemed to be the Fair Market Value thereof as determined
in accordance with the Appraisal Procedure.
(3) In the case of the issuance of options to purchase or rights
to subscribe for Common Stock, securities by their terms convertible into
or exchangeable for Common Stock, or options to purchase or rights to
subscribe for such convertible or exchangeable securities, except for
options to acquire Excluded Stock:
i) the aggregate maximum number of shares of Common Stock
deliverable upon exercise of such options to purchase or
rights to subscribe for Common Stock shall be deemed to
have been issued at the time such options or rights were
issued and for a consideration equal to the consideration
72
(determined in the manner provided in Sections 1304(c)(1)
and 1304(c)(2) above), if any, received by the Company upon
the issuance of such options or rights plus the minimum
purchase price provided in such options or rights for the
Common Stock covered thereby;
ii) the aggregate maximum number of shares of Common Stock
deliverable upon conversion of or in exchange of any such
convertible or exchangeable securities or upon the exercise
of options to purchase or rights to subscribe for such
convertible or exchangeable securities and subsequent
conversion or exchange thereof shall be deemed to have been
issued at the time such securities, options, or rights were
issued and for a consideration equal to the consideration
received by the Company for any such securities and related
options or rights (excluding any cash received on account
of accrued interest or accrued dividends), plus the
additional consideration, if any, to be received by the
Company upon the conversion or exchange of such securities
or the exercise of any related options or rights (the
consideration in each case to be determined in the manner
provided in Sections 1304(c)(1) and 1304(c)(2) above); and
iii) on any change in the number of shares or exercise price of
Common Stock deliverable upon exercise of any such options
or rights or conversions of or exchanges for such
securities, other than a change resulting from the
antidilution provisions thereof, the applicable Conversion
Price shall forthwith be readjusted to such Conversion
Price as would have been obtained had the adjustment made
upon the issuance of such options, rights or securities not
converted prior to such change or options or rights related
to such securities not converted prior to such change been
made upon the basis of such change.
iv) No further adjustment of the Conversion Price adjusted upon
the issuance of any such options, rights, convertible
securities or exchangeable securities shall be made as a
result of the actual issuance of Common Stock on the
exercise of any such rights or options or any conversion or
exchange of any such securities.
73
(4) All calculations under Section 1304(a) or (b) will be made to
the nearest one-hundredth of a cent or to the nearest whole share, as the
case may be. No adjustment to the Conversion Price in connection with an
Asset Acquisition will be required unless such adjustment would result in
an increase or decrease of at least one percent (1%) of the Conversion
Price; provided, however, that any adjustments which by reason of this
clause (4) are not required to be made will be carried forward and taken
into account in a subsequent adjustment, if any.
(d) If, at any time after the Original Issuance Date, the number of shares
of Common Stock outstanding is increased by a stock dividend payable in shares
of Common Stock or by a subdivision or split-up of shares of Common Stock, then,
following the record date for the determination of holders of Common Stock
entitled to receive such stock dividend, subdivision or split-up, the Conversion
Price shall be appropriately decreased so that the number of shares of Common
Stock issuable on conversion of Securities shall be increased in proportion to
such increase in outstanding shares.
(e) If, at any time after the Original Issuance Date, the number of shares
of Common Stock outstanding is decreased by a combination of the outstanding
shares of Common Stock, then, following the record date for such combination,
the Conversion Price shall be appropriately increased so that the number of
shares of Common Stock issuable on conversion of each Security shall be
decreased in proportion to such decrease in outstanding shares.
(f) In the event of any capital reorganization of the Company, any
reclassification of the stock of the Company (other than a change in par value
or from par value to no par value or from no par value to par value or as a
result of a stock dividend or subdivision, split-up or combination of shares),
or any consolidation or merger of the Company, each Security shall after such
reorganization, reclassification, consolidation, or merger be convertible into
the kind and number of shares of stock or other securities or property of the
Company or of the Company resulting from such consolidation or surviving such
merger to which the holder of the number of shares of Common Stock deliverable
(immediately prior to the time of such reorganization, reclassification,
consolidation or merger) upon conversion of such Security would have been
entitled upon such reorganization, reclassification, consolidation or merger.
The provisions of this clause shall similarly apply to successive
reorganizations, reclassifications, consolidations, or mergers.
(g) In any case in which the provisions of this Section 1304 shall require
that an adjustment shall become effective immediately after a record date of an
event, the Company may defer until the occurrence of such event (1) issuing to
the Holder of any Security converted after such record date and before the
occurrence of such event the shares of capital stock issuable upon such
conversion by reason of the adjustment required by such event and issuing to
such Holder only the shares of capital stock issuable upon such conversion
before giving effect to such adjustments, and (2) paying to such Holder any
amount in cash in lieu of a fractional share of capital stock pursuant to
Section 1303 above; provided, however, that the Company shall deliver to such
-------- -------
Holder an appropriate instrument or due bills evidencing such holder's right to
receive such additional shares and such cash.
74
(h) If the Company shall propose to take any action of the types described
in clauses d, e, or f of this Section 1304, the Company shall give notice to
each Holder, in the manner set forth in Section 1305, which notice shall specify
the record date, if any, with respect to any such action and the date on which
such action is to take place. Such notice shall also set forth such facts with
respect thereto as shall be reasonably necessary to indicate the effect of such
action (to the extent such effect may be known at the date of such notice) on
the Conversion Price and the number, kind or class of shares or other securities
or property which shall be deliverable or purchasable upon the occurrence of
such action or deliverable upon conversion of Securities. In the case of any
action which would require the fixing of a record date, such notice shall be
given at least 20 days prior to the date so fixed, and in case of all other
action, such notice shall be given at least 30 days prior to the taking of such
proposed action. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of any such action.
(i) Without duplication of any other adjustment provided for in this Section
1304, at any time the Company makes or fixes a record date for the determination
of holders of Common Stock entitled to receive a dividend or other distribution
payable in securities of the Company other than shares of Common Stock,
provision shall be made so that each Holder shall have the option to (i) receive
as part of such dividend or distribution the number of securities of the Company
which such Holder would have received had its Securities been converted into
shares of Common Stock immediately prior to the date of such event or (ii)
receive upon conversion thereof, in addition to the shares of Common Stock
receivable thereupon, the number of securities of the Company which such Holder
would have received had its Securities been converted at the Total Conversion
Amount into shares of Common Stock on the date of such event and had such holder
thereafter, during the period from the date of such event to and including the
date of conversion, retained such securities receivable by it pursuant to this
paragraph during such period, subject to the sum of all other adjustments called
for during such period under this Section 1304 with respect to the rights of
such Holder.
(j) If the Company has issued or issues any securities prior to, on or after
the Original Issuance Date containing provisions protecting the holder or
holders thereof against dilution in any manner more favorable to such holder or
holders thereof than those set forth in this Section 1304, such provisions (or
any more favorable portion thereof) shall be deemed to be incorporated herein as
if fully set forth in this Indenture and, to the extent inconsistent with any
provision of this Indenture, shall be deemed to be substituted therefor.
(k) In any case in which the provisions of this Section 1304 shall
necessitate that the Appraisal Procedure be utilized for purposes of determining
an adjustment to the Conversion Price, the Company may defer until the
completion of the Appraisal Procedure and the determination of the adjustment
(1) issuing to the Holder of any Security converted after the date of the event
that requires the adjustment and before completion of the Appraisal Procedure
and the determination of the adjustment, the shares of capital stock issuable
upon such conversion by reason of the adjustment required by such event and
issuing to such Holder only the shares of capital stock issuable upon such
conversion before giving effect to such adjustment and (2) paying to such Holder
any amount in cash in lieu of a fractional share of capital stock pursuant to
Section 1303 above; provided, however, that the Company shall deliver to such
-------- -------
Holder an appropriate instrument or due bills evidencing such Xxxxxx's right to
receive such additional shares and such cash.
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SECTION 1305. Notice of Adjustments of Conversion Price.
-----------------------------------------
Whenever the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price in
accordance with Sections 202, 203 and/or 1304 (as applicable) and shall prepare
a certificate signed by the Treasurer or Chief Financial Officer of the Company
setting forth the adjusted conversion price and showing in reasonable detail the
facts upon which such adjustment is based, and such certificate shall forthwith
be filed (with a copy to the Trustee) at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 1002; and
(b) a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall forthwith be prepared, and as
soon as practicable after it is prepared, such notice shall be furnished by the
Company to the Trustee and mailed by the Company at its expense to all Holders
at their last addresses as they shall appear in the Security Register. Where
appropriate such notice may be given in advance and may be included as part of
any notice required to be mailed under Section 1304(h).
SECTION 1306. Notice of Certain Corporate Action.
----------------------------------
In case:
(a) the Company shall take an action or an event shall occur, that
would require a Conversion Price adjustment pursuant to Sections 202, 203 or
1304; or
(b) the Company shall grant to the holders of its Common Stock rights
or warrants to subscribe for or purchase any shares of capital stock of any
class except Excluded Stock; or
(c) of any reclassification of the Common Stock (other than a
subdivision or combination of the outstanding shares of Common Stock), or of any
consolidation, merger or share exchange to which the Company is a party and for
which approval of any stockholders of the Company is required, or of the sale or
transfer 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
(e) the Company or any Subsidiary shall commence a tender offer for all
or a portion of the outstanding shares of Common Stock (or shall amend any such
tender offer to change the maximum number of shares being sought or the amount
or type of consideration being offered therefor);
then the Company shall cause to be filed at each office or agency maintained
pursuant to Section 1002, and shall cause to be mailed to all Holders at their
last addresses as they shall appear in the Security Register, at least 20 days
(or 10 days in any case specified in clause (a), (b) or (e) above) prior to the
applicable record, effective or expiration date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution or granting of rights or warrants, or, if a record is not
to be taken, the date as of which the holders
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of Common Stock of record who will be entitled to such dividend, distribution,
rights or warrants are to be determined, (y) the date on which such
reclassification, consolidation, merger, share exchange, sale, transfer,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, share
exchange, sale, transfer, dissolution, liquidation or winding up, or (z) the
date on which such tender offer commenced, the date on which such tender offer
is scheduled to expire unless extended, the consideration offered and the other
material terms thereof (or the material terms of any amendment thereto). Neither
the failure to give any such notice nor any defect therein shall affect the
legality or validity of any action described in clauses (a) through (e) of this
Section 1306.
SECTION 1307. Company to Reserve Common Stock.
-------------------------------
The Company shall at all times reserve and keep available, free from
preemptive rights, out of the authorized but unissued Common Stock or out of the
Common Stock held in treasury, for the purpose of effecting the conversion of
Securities, the full number of shares of Common Stock then issuable upon the
conversion of all outstanding Securities.
Before taking any action that would cause an adjustment reducing the
conversion price below the then par value (if any) of the shares of Common Stock
deliverable upon conversion of the Securities, the Company will take any
corporate action that may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid and non-assessable
shares of Common Stock at such adjusted conversion price.
SECTION 1308. Taxes on Conversions.
--------------------
The Company will pay any and all original issuance, transfer, stamp
and other similar taxes that may be payable in respect of the issue or delivery
of shares of Common Stock on conversion of Securities pursuant hereto. The
Company shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the issue and delivery of shares of Common
Stock in a name other than that of the Holder of the Security or Securities to
be converted, and no such issue or delivery shall be made unless and until the
Person requesting such issue has paid to the Company the amount of any such tax,
or has established to the satisfaction of the Company that such tax has been
paid.
SECTION 1309. Covenant as to Common Stock.
---------------------------
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be validly issued, fully
paid and nonassessable.
The Company further covenants that for so long as the Common Stock
shall be listed on the New York Stock Exchange or any other national securities
exchange, the Company will, if permitted by the rules of such exchange, list and
keep listed all Common Stock issuable upon conversion of the Securities.
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SECTION 1310. Cancellation of Converted Securities.
------------------------------------
All Securities 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 1311. Provisions as to Consolidation, Merger or Sale of Assets.
--------------------------------------------------------
Notwithstanding any other provision herein to the contrary, in case of
any consolidation or merger to which the Company is a party (other than a merger
or consolidation in which the Company is the continuing corporation and in which
the Company's Common Stock outstanding immediately prior to the merger or
consolidation is not exchanged for cash or the securities or other property of
another corporation), or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as an
entirety, or in the case of any statutory exchange of securities with another
corporation (other than in connection with a merger or acquisition), the
corporation formed by such consolidation or the corporation whose securities,
cash or other property will immediately after the merger or consolidation be
owned, by virtue of the merger or consolidation by the holders of Common Stock
of the Company immediately prior to the merger, or the corporation that shall
have acquired such assets or securities of the Company, as the case may be,
shall promptly execute and deliver to the Trustee a supplemental indenture
providing that the holder of each Security then outstanding shall have the right
thereafter to convert such Security into the kind and amount of securities, cash
or other property receivable upon such consolidation, merger, statutory
exchange, sale or conveyance by a holder of the number of shares of Common Stock
into which such Security might have been converted immediately prior to such
consolidation, merger, statutory exchange, sale or conveyance assuming such
holder of Common Stock did not exercise its rights of election, if any, as to
the kind or amount of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange, sale or conveyance (provided that, if
the kind or amount of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange, sale or conveyance is not the same
for each share of Common Stock in respect of which such rights of election shall
not have been exercised (a "non-electing share"), then for the purposes of this
Section 1311, the kind and amount of securities, cash or other property
receivable upon such consolidation, merger, statutory exchange, sale or
conveyance for 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 appropriate adjustment with respect to
the rights of the holders of the Securities, to the end that the provisions set
forth in this Article Thirteen shall thereafter correspondingly be made
applicable, as nearly as may reasonably be, in relation to any shares of stock
or other securities or property thereafter deliverable on the conversion of the
Securities. Any such adjustment shall be evidenced by a certificate delivered to
the Trustee and any paying agent.
The above provisions of this Section 1311 shall similarly apply to
successive consolidations, mergers, statutory exchanges, sales or conveyances.
The Company shall give notice of the execution of such a supplemental
indenture to the holders of Securities in the manner provided in Section 907
within 30 days after the execution thereof; provided, however, that such notice
need not be given if such information has
78
been provided prospectively in the notice given pursuant to Section 1306.
Failure to give such notice, or any defects therein, shall not affect the
legality or validity of any such supplemental indenture.
SECTION 1312. Disclaimer of Responsibility for Certain Matters.
------------------------------------------------
Neither the Trustee nor any conversion agent shall at any time be
under any duty or responsibility to any holder of Securities to determine
whether any facts exist that may require any adjustment of the conversion price,
or with respect to the nature or extent of any such adjustment when made, or
with respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. Neither the Trustee nor any
conversion agent shall be accountable with respect to the listing referred to in
Section 1309 or the validity or value (or the kind or amount) of any shares of
Common Stock, or of any securities, cash or other property that may at any time
be issued or delivered upon the conversion of any Security; and neither the
Trustee nor any conversion agent makes any representation with respect thereto.
Neither the Trustee nor any conversion agent shall be responsible for any
failure of the Company to issue, transfer or deliver any shares of Common Stock
or stock certificates or other securities or property or to make any cash
payment upon the surrender of any Security for the purpose of conversion or,
subject to the provisions of Section 601, to comply with any of the covenants
contained in this Article 13.
ARTICLE XIV
RIGHT TO REQUIRE REPURCHASE
SECTION 1401. Right to Require Repurchase.
---------------------------
In the event that there shall occur a Change in Control, then each
Holder shall have the right, at such Holder's option, to require the Company to
purchase, and upon the exercise of such right, the Company shall, subject to the
provisions of Article 12 purchase all (or any portion with a principal amount
equal to $1,000 or an integral multiple thereof) of such Holder's Securities on
the date (the "Repurchase Date") that is 40 Business Days after the occurrence
of the Change in Control at a price (the "Repurchase Price") equal to 100% of
the principal amount thereof, together with accrued and unpaid interest
(including, but not limited to, Special Interest) to the Repurchase Date.
SECTION 1402. Notice; Method of Exercising Repurchase Right.
---------------------------------------------
(a) On or before the 20th Business Day after the occurrence of a
Change in Control, the Company, or at the request of the Company, the Trustee
(in the name and at the expense of the Company), shall give notice of the
occurrence of the Change in Control and of the repurchase right set forth herein
arising as a result thereof by first-class mail, postage prepaid, to each Holder
of the Securities at such Holder's address appearing in the Security Register.
The Company shall also deliver a copy of such notice of a repurchase right to
the Trustee.
Each notice of a repurchase right shall state:
79
(i) the event constituting the Change in Control and the date
thereof,
(ii) the Repurchase Date,
(iii) the date by which the repurchase right must be exercised,
(iv) the Repurchase Price, and
(v) the instructions a Holder must follow to exercise a
repurchase right.
No failure of the Company to give the foregoing notice shall limit any
Holder's right to exercise a repurchase right. The Trustee shall have no
affirmative obligation to determine if there shall have occurred a Change in
Control.
(b) To exercise a repurchase right, a Holder shall deliver to the
Company (or an agent designated by the Company for such purpose in the notice
referred to in (a) above) and to the Trustee on or before the close of business
on the Repurchase Date (i) written notice, substantially in the form set forth
on the reverse of the Securities, of the Holder's exercise of such right, which
notice shall set forth the name of the Holder, the principal amount of the
Security or Securities (or portion of a Security which is $1,000 or an integral
multiple thereof) to be repurchased, and a statement that an election to
exercise the repurchase right is being made thereby, and (ii) the Security or
Securities with respect to which the repurchase right is being exercised, duly
endorsed for transfer to the Company. Such written notice may be withdrawn at
any time on or before the close of business on the Repurchase Date. If the
Repurchase Date falls between any Regular Record Date and the next succeeding
Interest Payment Date, Securities to be repurchased must be accompanied by
payment from the Holder of an amount equal to the interest thereon which the
registered Holder thereof is to receive on such Interest Payment Date.
(c) In the event a repurchase right shall be exercised in accordance
with the terms hereof, the Company shall on or promptly following the Repurchase
Date pay or cause to be paid in cash to the Holder thereof the Repurchase Price
of the Security or Securities as to which the repurchase right had been
exercised.
SECTION 1403. Deposit of Repurchase Price.
---------------------------
On or prior to the close of business on the Repurchase 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 sufficient to pay the Repurchase
Price of the Securities which are to be repaid on or promptly following the
Repurchase Date.
SECTION 1404. Securities Not Repurchased on Repurchase Date.
---------------------------------------------
Interest on any Security surrendered for repurchase shall cease to
accrue from and after the Repurchase Date unless the Company shall default in
the payment of any such Security at the purchase price, together with interest
accrued thereon to the Repurchase Date.
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SECTION 1405. Securities Repurchased in Part.
------------------------------
Any Security which is to be repurchased only in part shall be
surrendered at any office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of any authorized denomination as requested
by such Xxxxxx, in an aggregate principal amount equal to and in exchange for
the repurchased portion of the principal of the Security so surrendered.
ARTICLE XV
VOTING RIGHTS
SECTION 1501. General.
-------
Except as other provided by applicable law, the Holders of the
Securities (i) shall be entitled to vote together with the holders of the Common
Stock as a single class on all matters submitted for a vote of holders of Common
Stock, (ii) voting separately as one class, shall have the exclusive and special
right at all times to elect three (3) of the directors to the Board of Directors
of the Company (or if the Board of Directors of the Company shall consist of
more than 10 persons, no less than 30% of the total number of directors of the
Board of Directors), (iii) shall have such other voting rights as are specified
in the Amended and Restated Certificate of Incorporation of the Company or as
otherwise provided by Delaware law and (iv) shall be entitled to notice of any
stockholders' meeting in accordance with the Amended and Restated Certificate of
Incorporation and By-Laws of the Company. With respect to any such vote, each
Security shall entitle the Holder thereof to cast that number of whole votes
(and fractions thereof) per $1,000 principal amount of Security as is equal to
the number of votes that such Holder would be entitled to cast had such Holder
converted its Securities into shares of Common Stock as of the record date for
determining the stockholders of the Corporation eligible to vote on any such
matter.
SECTION 1502. No Changes to Voting Rights.
---------------------------
So long as any of the principal amount of the Securities is
outstanding, the Company shall not, without the written consent or affirmative
vote of the Requisite Holders, at a meeting called for that purpose of the
Holders, amend, alter or repeal, whether by merger, consolidation, combination,
reclassification or otherwise, the Amended and Restated Certificate of
Incorporation or By-laws of the Company or of any provision thereof (including
the adoption of a new provision thereof) which would result in an alteration or
circumvention of the voting powers of the Securities.
81
SECTION 1503. Stockholder Approval Required.
-----------------------------
The consent or votes required in Section 1502 above shall be in
addition to any approval of stockholders of the Company which may be required by
law or pursuant to any provision of the Company's Amended and Restated
Certificate of Incorporation or By-Laws, which approval shall be obtained by
vote of the stockholders of the Company in the manner provided in Section 1501
above.
SECTION 1504. Effectiveness of this Article XV.
--------------------------------
The provisions of this Article XV shall not become effective until the
Charter Amendment is Duly Adopted.
This instrument may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
82
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.
[ISSUER]
By /s/
_____________________________________
Name:
Title:
Attest:
/s/
______________________________
Name:
Title:
______________________________
as Trustee
By /s/
_____________________________________
Name:
Title:
Attest:
/s/
_____________________________________
Name:
Title: Corporate Trust Officer
