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TOWER AUTOMOTIVE, INC.
to
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
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JUNIOR CONVERTIBLE SUBORDINATED INDENTURE
DATED AS OF JUNE 9, 1998
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6 3/4% CONVERTIBLE SUBORDINATED DEBENTURES
DUE JUNE 30, 2018
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Reconciliation and tie between the Trust Indenture Act of 1939 (including
cross-references to provisions of Sections 310 to and including 317 which,
pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended by the
Trust Reform Act of 1990, are a part of and govern the Junior Convertible
Subordinated Indenture whether or not physically contained therein) and the
Junior Convertible Subordinated Indenture, dated as of June 9, 1998.
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
--------------- --------
Section 310(a)(1), (2) and (5). . . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8, 6.10
(c). . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
Section 311(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.13
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.13
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.3(a)
Section 312(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(b). . . . . . . . . . . . . . . . . . . . . . . . . . .7.2(a), 7.2(b)
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.2(c)
Section 313(a). . . . . . . . . . . . . . . . . . . . . . . . . .7.3(a), 7.3(b)
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.3(a)
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.3(a)
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.3(c)
Section 314(a)(1), (2),(3) and (4). . . . . . . . . . . . . . . . . . . . . 7.4
(b). . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(d). . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(f). . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
Section 315(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.1(a)
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.1(b)
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.1(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)(3)
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5.14
Section 316(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5.12
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . .5.13
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1.4(f)
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10.3
Section 318(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.7
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Convertible Subordinated Indenture.
TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 COMPLIANCE CERTIFICATE AND OPINIONS. . . . . . . . . . . .11
SECTION 1.3 FORMS OF DOCUMENTS DELIVERED TO TRUSTEE. . . . . . . . . .12
SECTION 1.4 ACTS OF HOLDERS. . . . . . . . . . . . . . . . . . . . . .12
SECTION 1.5 NOTICES, ETC. TO TRUSTEE AND COMPANY . . . . . . . . . . .13
SECTION 1.6 NOTICE TO HOLDERS; WAIVER. . . . . . . . . . . . . . . . .14
SECTION 1.7 CONFLICT WITH TRUST INDENTURE ACT. . . . . . . . . . . . .14
SECTION 1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS . . . . . . . . .14
SECTION 1.9 SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . .14
SECTION 1.10 SEPARABILITY CLAUSE. . . . . . . . . . . . . . . . . . . .14
SECTION 1.11 BENEFITS OF INDENTURE. . . . . . . . . . . . . . . . . . .14
SECTION 1.12 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . .14
SECTION 1.13 NON-BUSINESS DAYS. . . . . . . . . . . . . . . . . . . . .15
ARTICLE 2
DEBENTURE FORM
SECTION 2.1 FORMS GENERALLY. . . . . . . . . . . . . . . . . . . . . .15
SECTION 2.2 FORM OF FACE OF DEBENTURE. . . . . . . . . . . . . . . . .15
SECTION 2.3 FORM OF REVERSE OF DEBENTURE . . . . . . . . . . . . . . .16
SECTION 2.4 ADDITIONAL PROVISIONS REQUIRED IN GLOBAL DEBENTURE . . . .26
SECTION 2.5 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. . . . . .26
SECTION 2.6 INITIAL ISSUANCE TO PROPERTY TRUSTEE . . . . . . . . . . .26
ARTICLE 3
THE DEBENTURES
SECTION 3.1 AMOUNT OF DEBENTURES . . . . . . . . . . . . . . . . . . .27
SECTION 3.2 DENOMINATIONS. . . . . . . . . . . . . . . . . . . . . . .27
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING . . . . . .27
SECTION 3.4 TEMPORARY DEBENTURES . . . . . . . . . . . . . . . . . . .28
SECTION 3.5 REGISTRATION, TRANSFER AND EXCHANGE. . . . . . . . . . . .28
SECTION 3.6 MUTILATED, DESTROYED, LOST AND STOLEN DEBENTURES . . . . .30
SECTION 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED . . . . . .31
SECTION 3.8 PERSONS DEEMED OWNERS. . . . . . . . . . . . . . . . . . .32
SECTION 3.9 CANCELLATION . . . . . . . . . . . . . . . . . . . . . . .32
SECTION 3.10 COMPUTATION OF INTEREST. . . . . . . . . . . . . . . . . .32
SECTION 3.11 DEFERRALS OF INTEREST PAYMENT PERIODS. . . . . . . . . . .32
SECTION 3.12 RIGHT OF SET-OFF . . . . . . . . . . . . . . . . . . . . .33
SECTION 3.13 AGREED TAX TREATMENT . . . . . . . . . . . . . . . . . . .33
SECTION 3.14 CUSIP NUMBERS. . . . . . . . . . . . . . . . . . . . . . .34
SECTION 3.15 GLOBAL SECURITY. . . . . . . . . . . . . . . . . . . . . .34
i
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ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE. . . . . . . . . .35
SECTION 4.2 APPLICATION OF TRUST MONEY . . . . . . . . . . . . . . . .37
ARTICLE 5
REMEDIES
SECTION 5.1 DEBENTURE EVENTS OF DEFAULT. . . . . . . . . . . . . . . .37
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT . . . .38
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . .39
SECTION 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM . . . . . . . . . . . . .40
SECTION 5.5 TRUSTEE MAY ENFORCE CLAIM WITHOUT POSSESSION OF
DEBENTURES . . . . . . . . . . . . . . . . . . . . . . . .41
SECTION 5.6 APPLICATION OF MONEY COLLECTED . . . . . . . . . . . . . .41
SECTION 5.7 LIMITATION ON SUITS. . . . . . . . . . . . . . . . . . . .41
SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST . . . . . . . . . . . . . . . . . . .42
SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES . . . . . . . . . . . .43
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE . . . . . . . . . . . . . .43
SECTION 5.11 DELAY OR OMISSION NOT WAIVER . . . . . . . . . . . . . . .43
SECTION 5.12 CONTROL BY HOLDERS . . . . . . . . . . . . . . . . . . . .43
SECTION 5.13 WAIVER OF PAST DEFAULTS. . . . . . . . . . . . . . . . . .44
SECTION 5.14 UNDERTAKING FOR COSTS. . . . . . . . . . . . . . . . . . .45
SECTION 5.15 WAIVER OF USURY, STAY, OR EXTENSION LAWS . . . . . . . . .45
ARTICLE 6
THE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES. . . . . . . . . . . .45
SECTION 6.2 NOTICE OF DEFAULTS . . . . . . . . . . . . . . . . . . . .46
SECTION 6.3 CERTAIN RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . .47
SECTION 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBENTURES . .48
SECTION 6.5 MAY HOLD DEBENTURES. . . . . . . . . . . . . . . . . . . .48
SECTION 6.6 MONEY HELD IN TRUST. . . . . . . . . . . . . . . . . . . .48
SECTION 6.7 COMPENSATION AND REIMBURSEMENT . . . . . . . . . . . . . .48
SECTION 6.8 DISQUALIFICATION; CONFLICTING INTERESTS. . . . . . . . . .49
SECTION 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. . . . . . . . . .49
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. . . . .50
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR . . . . . . . . . .51
SECTION 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS . . . . . . . . . . . . . . . . . . . . . . . . .51
SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. . . . .52
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT. . . . . . . . . . . .52
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 COMPANY TO FURNISH NAMES AND ADDRESSES OF HOLDERS. . . . .54
ii
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SECTION 7.2 PRESERVATION OF INFORMATION: COMMUNICATIONS TO HOLDERS. .54
SECTION 7.3 REPORTS BY TRUSTEE . . . . . . . . . . . . . . . . . . . .54
SECTION 7.4 REPORTS BY COMPANY . . . . . . . . . . . . . . . . . . . .55
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS . . .55
SECTION 8.2 SUCCESSOR CORPORATION SUBSTITUTED. . . . . . . . . . . . .56
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS . . . .56
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. . . . . .57
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES . . . . . . . . . . .59
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES. . . . . . . . . . . . .59
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT. . . . . . . . . . . .59
SECTION 9.6 REFERENCE IN DEBENTURES TO SUPPLEMENTAL INDENTURES . . . .59
ARTICLE 10
COVENANTS
SECTION 10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST . . . . . . . .59
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . .59
SECTION 10.3 MONEY FOR DEBENTURE PAYMENTS TO BE HELD IN TRUST . . . . .60
SECTION 10.4 PAYMENT OF TAXES AND OTHER CLAIMS. . . . . . . . . . . . .61
SECTION 10.5 STATEMENT AS TO COMPLIANCE . . . . . . . . . . . . . . . .61
SECTION 10.6 WAIVER OF CERTAIN COVENANTS. . . . . . . . . . . . . . . .62
SECTION 10.7 ADDITIONAL SUMS. . . . . . . . . . . . . . . . . . . . . .62
SECTION 10.8 ADDITIONAL COVENANTS . . . . . . . . . . . . . . . . . . .62
SECTION 10.9 PAYMENT OF EXPENSES OF THE TRUST . . . . . . . . . . . . .63
ARTICLE 11
REDEMPTION OR EXCHANGE OF DEBENTURES
SECTION 11.1 ELECTION TO REDEEM; NOTICE TO TRUSTEE. . . . . . . . . . .64
SECTION 11.2 SELECTION OF DEBENTURES TO BE REDEEMED . . . . . . . . . .64
SECTION 11.3 NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . . .64
SECTION 11.4 DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . . .65
SECTION 11.5 DEBENTURES PAYABLE ON REDEMPTION DATE. . . . . . . . . . .66
SECTION 11.6 DEBENTURES REDEEMED IN PART. . . . . . . . . . . . . . . .66
SECTION 11.7 MANDATORY REDEMPTION . . . . . . . . . . . . . . . . . . .67
SECTION 11.8 OPTIONAL REDEMPTION. . . . . . . . . . . . . . . . . . . .67
SECTION 11.9 EXCHANGE OF TRUST SECURITIES FOR DEBENTURES. . . . . . . .68
ARTICLE 12
SUBORDINATION OF DEBENTURES
SECTION 12.1 DEBENTURES SUBORDINATE TO SENIOR DEBT. . . . . . . . . . .68
iii
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SECTION 12.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.. . . . . .69
SECTION 12.3 PRIOR PAYMENT TO SENIOR DEBT UPON ACCELERATION OF
DEBENTURES . . . . . . . . . . . . . . . . . . . . . . . .70
SECTION 12.4 NO PAYMENT WHEN SENIOR DEBT IN DEFAULT . . . . . . . . . .70
SECTION 12.5 PAYMENT PERMITTED IF NO DEFAULT. . . . . . . . . . . . . .71
SECTION 12.6 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT. . . . . .71
SECTION 12.7 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS. . . . . . . .71
SECTION 12.8 TRUSTEE TO EFFECTUATE SUBORDINATION. . . . . . . . . . . .72
SECTION 12.9 NO WAIVER OF SUBORDINATION PROVISIONS. . . . . . . . . . .72
SECTION 12.10 NOTICE TO TRUSTEE. . . . . . . . . . . . . . . . . . . . .72
SECTION 12.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT. . . . . . . . . . . . . . . . . . . . .72
SECTION 12.12 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT . . . . .73
SECTION 12.13 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT;
PRESERVATION OF TRUSTEE'S RIGHTS . . . . . . . . . . . . .73
SECTION 12.14 ARTICLE APPLICABLE TO PAYING AGENTS. . . . . . . . . . . .73
SECTION 12.15 CERTAIN CONVERSIONS OR EXCHANGES DEEMED PAYMENT. . . . . .73
ARTICLE 13
CONVERSION OF DEBENTURES
SECTION 13.1 CONVERSION RIGHTS. . . . . . . . . . . . . . . . . . . . .73
SECTION 13.2 CONVERSION PROCEDURES. . . . . . . . . . . . . . . . . . .74
SECTION 13.3 EXPIRATION OF CONVERSION RIGHTS. . . . . . . . . . . . . .77
SECTION 13.4 CONVERSION PRICE ADJUSTMENTS . . . . . . . . . . . . . . .77
SECTION 13.5 FUNDAMENTAL CHANGE . . . . . . . . . . . . . . . . . . . .81
SECTION 13.6 NOTICE OF ADJUSTMENTS OF CONVERSION PRICE. . . . . . . . .82
SECTION 13.7 PRIOR NOTICE OF CERTAIN EVENTS . . . . . . . . . . . . . .83
SECTION 13.8 CERTAIN ADDITIONAL RIGHTS. . . . . . . . . . . . . . . . .84
SECTION 13.9 RESTRICTIONS ON COMMON STOCK ISSUABLE UPON CONVERSION. . .84
SECTION 13.10 TRUSTEE NOT RESPONSIBLE FOR DETERMINING CONVERSION
PRICE OR ADJUSTMENTS . . . . . . . . . . . . . . . . . . .85
iv
JUNIOR CONVERTIBLE SUBORDINATED INDENTURE, dated as of June 9, 1998
between TOWER AUTOMOTIVE, INC., a Delaware corporation (the "COMPANY") having
its principal office at 0000 00xx Xxxxxx X.X., Xxxxx Xxxxxx, Xxxxxxxx 00000,
and THE FIRST NATIONAL BANK OF CHICAGO, a national banking association
("FIRST CHICAGO"), as Trustee (the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Subordinated Indenture to provide for the issuance of its 6 3/4% Convertible
Subordinated Debentures (the "DEBENTURES") of substantially the tenor
hereinafter provided which evidence loans made to the Company of the proceeds
from the issuance by Tower Automotive Capital Trust, a Delaware business
trust (the "TRUST"), of preferred trust interests in the Trust (the
"PREFERRED SECURITIES") and common interests in the Trust (the "COMMON
SECURITIES"), and to provide the terms and conditions upon which the
Debentures are to be authenticated, issued and delivered.
All things necessary to make the Debentures, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Subordinated
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
Debentures by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Debentures, as
follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS. For all purposes of this
Subordinated Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and the term "GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES" with respect to any computation required or permitted
hereunder shall mean such accounting principles which are generally
accepted at the date or time of such computation; and
(d) the words "HEREIN" and "HEREUNDER" and other words of similar
import refer to this Subordinated Indenture as a whole and not to any
particular Article, Section or other subdivision.
"ACT," when used with respect to any Holder, has the meaning specified in
Section 1.4.
"ADDITIONAL INTEREST" means the interest, if any, that shall accrue on
any interest on the Debentures that is in arrears for more than one interest
payment period or not paid during any Extension Period, which in either case
(to the extent permitted by law) shall accrue at the stated rate per annum
specified or determined as specified in such Debenture and compounded
quarterly.
"ADDITIONAL SUMS" has the meaning specified in Section 10.7.
"ADDITIONAL TAXES" means the sum of any additional taxes, duties and
other governmental charges to which the Trust has become subject from time to
time as a result of a Tax Event.
"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; PROVIDED, HOWEVER, that an Affiliate of
the Company shall be deemed not to include the Trust to which Debentures have
been issued. 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.
"APPLICABLE PRICE" means (i) in the case of a Non-Stock Fundamental
Change in which the holders of Common Stock receive only cash, the amount of
cash received by the holder of one share of Common Stock and (ii) in the
event of any other Non-Stock Fundamental Change or any Stock Fundamental
Change, the average of the Closing Prices for Common Stock during the ten
Trading Days prior to and including the record date for the determination of
the holders of Common Stock entitled to receive such securities, cash, or
other property in connection with such Non-Stock Fundamental Change or Stock
Fundamental Change or, if there is no such record date, the date upon which
the holders of Common Stock shall have the right to receive such securities,
cash, or other property (the "Entitlement Date"), in each case as adjusted in
good faith by the Company to appropriately reflect any of the events referred
to in Section 13.4.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Debentures.
"BOARD OF DIRECTORS" means either the board of directors of the
Company or any committee of that board duly authorized to act hereunder.
"BOARD RESOLUTION" means a copy of the resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors, or such committee of the Board of Directors or
officers of the Company to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
2
"BUSINESS DAY" means any day other than a Saturday or Sunday or a day
on which banking institutions in the City of New York are authorized or
required by law or executive order to remain closed or a day on which the
Corporate Trust Office of the Trustee, or the principal office of the
Property Trustee under the Declaration, is closed for business.
"CLOSING PRICE" means on any day the reported last sale price on such
day or, in case no sale takes place on such day, the average of the reported
closing bid and asked prices in each case on the NYSE Composite Tape or, if
the stock is not traded on the NYSE, on the principal national securities
exchange or quotation system on which such stock is listed or admitted to
trading, or, if not listed or admitted to trading or quoted on any national
securities exchange or quotation system, the average of the closing bid and
asked prices of such stock in the over-the-counter market on the day in
question as reported by the National Quotation Bureau Incorporated, or a
similar generally accepted reporting service, or, if not so available in such
manner, as furnished by the NASD member firm, selected by the Board of
Directors of the Company for that purpose or, if not so available in such
manner, as otherwise determined in good faith by the Board of Directors of
the Company.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
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 on such date.
"COMMON SECURITIES" has the meaning specified in the first recital of
this Subordinated Indenture.
"COMMON STOCK" means the Common Stock, $0.01 par value per share, of
the Company
"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 Subordinated Indenture, and
thereafter "Company" shall mean such successor Person.
"COMPANY REQUEST" and "COMPANY ORDER" means, respectively, the written
request or order signed in the name of the Company by its Chairman of the
Board, its Vice Chairman, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Controller, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"CONVERSION AGENT" has the meaning specified in Section 13.2.
"CONVERSION EXPIRATION DATE" has the meaning specified in Section 13.3.
"CONVERSION DATE" has the meaning specified in Section 13.2.
"CONVERSION PRICE" has the meaning specified in Section 13.1.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered which office at the date hereof is located at Xxx Xxxxx Xxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000.
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"CURRENT MARKET PRICE" means the average of the last reported sale
price, regular way, for the 10 Trading Days (as defined herein) ending on the
date of determination, or, if no sale takes place on any such day, the
average of the reported closing bid and asked prices on such day(s), regular
way, in either case as reported on New York Stock Exchange Composite Tape,
or, if such Common Stock is not listed or admitted to trading on New York
Stock Exchange Composite Tape on any such day, on the principal national
securities exchange or quotation system on which such Common Stock is listed
or admitted to trading, or, if not listed or admitted to trading or quoted on
any national securities exchange or quotation system, the average closing bid
and asked prices of such Common Stock in the over-the-counter market for the
10 Trading Days in question as reported by the National Quotation Bureau
Incorporated, or a similar generally accepted reporting service, or, if not
so available in such manner, as furnished by any member firm of the National
Association of Securities Dealers, Inc. selected from time to time by the
Board of Directors of the Company for that purpose or, if not so available in
such manner, as otherwise determined in good faith by the Board of Directors
of the Company. As used herein, the term "Trading Day" shall mean a day on
which the principal national securities exchange on which the Common Stock is
listed or admitted to trading is open for the transaction of business or, if
the Common Stock is not listed or admitted to trading on any national
securities exchange, a Business Day.
"DEBENTURES" or "DEBENTURE" means any debt securities or debt
security, as the case may be, authenticated and delivered under this
Subordinated Indenture.
"DEBT" means, with respect to any Person, whether recourse is to all
or a portion of the assets of such Person and whether or not contingent, (i)
every obligation of such Person for money borrowed; (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses; (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person; (iv)
every obligation of such Person issued or assumed as the deferred purchase
price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business); (v) every
capital lease obligation of such Person; and (vi) every obligation of the
type referred to in clauses (i) through (v) of another Person and all
dividends of another Person the payment of which, in either case, such Person
has guaranteed or is responsible for or liable, directly or indirectly, as
obligor or otherwise.
"DECLARATION" means the Declaration of Trust substantially in the form
attached hereto as Annex A, as amended by the form of Amended and Restated
Declaration of Trust substantially in the form attached hereto as Annex B, as
amended from time to time.
"DEFAULTED INTEREST" has the meaning specified in Section 3.7.
"DEPOSITARY" means, with respect to the Debentures issuable or issued
in whole or in part in the form of one or more Global Debentures, the Person
designated as Depositary by the Company (or any successor thereto).
"DOLLAR" means the currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
4
"DEBENTURE EVENTS OF DEFAULT" has the meaning specified in Article 5.
"ENTITLEMENT DATE" has the meaning specified in the definition of
"Applicable Price."
"EXPIRATION TIME" has the meaning specified in Section 13.4(e).
"EXTENSION PERIOD" has the meaning specified in Section 2.3.
"FUNDAMENTAL CHANGE" means the occurrence of any Transaction or event
in connection with a plan pursuant to which all or substantially all of
Common Stock shall be exchanged for, converted into, acquired for, or
constitute solely the right to receive securities, cash, or other property
(whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization, or
otherwise); PROVIDED, HOWEVER, in the case of a plan involving more than one
such Transaction or event, for purposes of adjustment of the conversion
price, such Fundamental Change shall be deemed to have occurred when
substantially all of Common Stock shall be exchanged for, converted into, or
acquired for or constitute solely the right to receive securities, cash, or
other property, but the adjustment shall be based upon consideration that a
holder of Common Stock received in such Transaction or event as a result of
which more than 50% of Common Stock shall have been exchanged for, converted
into, or acquired for or constitute solely the right to receive securities,
cash, or other property.
"GLOBAL DEBENTURE" means a Debenture in the form prescribed in Section
2.4 evidencing all or part of the Debentures, issued to the Depositary or its
nominee, and registered in the name of such Depositary or its nominee.
"GUARANTEE" means the guarantee by the Company of distributions on the
Preferred Securities of the Trust to the extent provided in the Guarantee
Agreement, substantially in the form attached hereto as Annex C, as amended
from time to time.
"HOLDER" means a Person in whose name a Debenture is registered in the
Securities Register.
"INITIAL PURCHASERS" with respect to the Preferred Securities, means
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, Xxxxxx X. Xxxxx & Co.
Incorporated, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and
PaineWebber Incorporated.
"INTEREST PAYMENT DATE" means as to the Debentures the Stated Maturity
of an installment of interest on such Debentures.
"INTEREST RATE" means the rate of interest specified or determined as
specified in each Debenture as being the rate of interest payable on such
Debenture.
"INVESTMENT COMPANY EVENT" means, in respect of the Trust, the receipt
by the Property Trustee, on behalf of the Trust of an Opinion of Counsel,
rendered by a law firm having a recognized national tax and securities
practice and experienced in matters under the 1940 Act (which opinion shall
not have been rescinded by such law firm), to the effect that, as a result of
the occurrence of a change in law or regulation or a change in interpretation
or application of law or regulation by any legislative body, court,
governmental agency or regulatory authority (a "CHANGE IN 1940 ACT LAW"),
5
there is more than an insubstantial risk that the Trust is or will be within
90 days of the date thereof considered an "investment company" that is
required to be registered under the 1940 Act, which Change in 1940 Act Law
becomes effective on or after the date of original issuance of the Preferred
Securities of the Trust.
"JUNIOR SUBORDINATED PAYMENT" has the meaning specified in Section
12.2.
"LIQUIDATED DAMAGES" has the meaning specified in the form of reverse
of Debenture set forth in Section 2.3
"MATURITY" when used with respect to the Debentures, means the date on
which the principal of the Debentures becomes due and payable as herein
provided, whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
"1940 ACT" means the Investment Company Act of 1940, as amended.
"NON BOOK-ENTRY PREFERRED SECURITIES" has the meaning specified in
Section 3.15.
"NON-STOCK FUNDAMENTAL CHANGE" means any Fundamental Change other than
a Stock Fundamental Change.
"NOTICE OF CONVERSION" means the notice given by a Holder of Preferred
Securities to the Conversion Agent directing the Conversion Agent to exchange
such Preferred Securities for Debentures and to convert such Debentures into
Common Stock on behalf of such holder.
"NOTICE OF DEFAULT" has the meaning specified in Section 5.1(c).
"NYSE" means the New York Stock Exchange.
"OFFICERS' CERTIFICATE" means a certificate signed by (i) the
Chairman, Chief Executive Officer, President or a Vice President, and by (ii)
the Treasurer, an Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Company, the Trust, or the Trustee, but who may be an
employee thereof, and who shall be reasonably acceptable to the Trustee.
"OUTSTANDING" means, as of the date of determination, all Debentures
theretofore authenticated and delivered under this Subordinated Indenture,
except:
(i) Debentures theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Debentures for whose payment money in the necessary amount
has been theretofore irrevocably deposited with the Trustee or any Paying
Agent in trust for the Holders of such Debentures; and
6
(iii) Debentures which have been converted into Common Stock
pursuant to Section 13.1, unless proof satisfactory to the Trustee is
presented that any Debentures are held by Holders in whose hands such
Debentures are valid, binding and legal obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Debentures have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debentures
owned by the Company or any other obligor upon the Debentures or any
Affiliate of the Company or such other obligor shall be disregarded and
deemed not to be outstanding, except that, in determining whether the Trustee
shall be fully protected in conclusively relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Debentures
which a Responsible Officer of the Trustee actually knows to be so owned
shall be so disregarded. Debentures so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to
such Debentures and that the pledgee is not the Company or any other obligor
upon the Debentures or any Affiliate of the Company or such other obligor.
Upon request of the Trustee, the Company shall furnish to the Trustee
promptly an Officers' Certificate listing and identifying all Debentures, if
any, known by the Company to be owned or held by or for the account of the
Company, or any other obligor on the Debentures or any Affiliate of the
Company or such obligor, and, subject to the provisions of Section 6.1, the
Trustee shall be entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Debentures
not listed therein are Outstanding for the purpose of any such determination.
"PAYING AGENT" means the Trustee or any Person authorized by the
Company to pay the principal of or interest on any Debentures on behalf of
the Company.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"PREDECESSOR DEBENTURE" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture, and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 3.6 in
lieu of a lost, destroyed or stolen Debenture shall be deemed to evidence the
same debt as the lost, destroyed or stolen Debenture.
"PREFERRED SECURITIES" has the meaning specified in the first recital
of this Subordinated Indenture.
"PROCEEDING" has the meaning specified in Section 12.2.
"PROPERTY TRUSTEE" means, in respect of the Trust, the commercial bank
or trust company identified as the "Property Trustee" in the Declaration,
solely in its capacity as Property Trustee of the Trust under the Declaration
and not in its individual capacity, or its successor in interest in such
capacity, or any successor property trustee appointed as therein provided.
7
"PURCHASE AGREEMENT" means the Purchase Agreement, dated June 3, 1998,
by and among the Trust, the Company and the Initial Purchasers.
"PURCHASED SHARES" has the meaning specified in Section 13.4(e).
"PURCHASER STOCK PRICE" means, with respect to any Stock Fundamental
Change the average of the Closing Prices for common stock received in such
Stock Fundamental Change for the ten consecutive Trading Days prior to and
including the Entitlement Date, as adjusted in good faith by the Company to
appropriately reflect any of the events referred to in Section 13.4.
"REDEMPTION DATE," when used with respect to any Debenture to be
redeemed, means the date fixed for such redemption by or pursuant to this
Subordinated Indenture.
"REDEMPTION PRICE" has the meaning specified in Section 11.3(b).
"REFERENCE DATE" has the meaning specified in Section 13.4(c).
"REFERENCE MARKET PRICE" initially means $30 1/3 (which is an amount
equal to 66 2/3% of the reported last sale price for Common Stock on June 3,
1998), and in the event of any adjustment of the Conversion Price other than
as a result of a Non-Stock Fundamental Change, the Reference Market Price
shall also be adjusted so that the ratio of the Reference Market Price to the
Conversion Price after giving effect to any such adjustment shall always be
the same as the ratio of the initial Reference Market Price to the initial
Conversion Price of the Debentures.
"REGULAR RECORD DATE" means for the interest payable on any Interest
Payment Date the fifteenth day (whether or not a Business Day) next
preceding such Interest Payment Date.
"RESPONSIBLE OFFICER" when used with respect to the Trustee means any
officer assigned to the Trustee's Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above designated officers and having direct responsibility for the
administration of this Subordinated Indenture, and also, with respect to a
particular matter, any other officer, to whom such matter is referred because
of such officer's knowledge of and familiarity with the particular subject.
"RESTRICTED PREFERRED SECURITIES" means all Preferred Securities
required to bear any restricted securities legend pursuant to the Declaration.
"RESTRICTED SECURITIES" means all the Debentures required pursuant to
Section 2.6 to bear a Restricted Securities legend.
"RESTRICTED SECURITIES LEGEND" has the meaning specified in Section
2.6.
"RIGHTS" has the meaning specified in Section 13.2(g).
"SECURITIES REGISTER" AND "SECURITIES REGISTRAR" have the respective
meanings specified in Section 3.5.
8
"SENIOR DEBT" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether
or not such claim for post-petition interest is allowed in such proceeding),
on Debt of the Company, whether incurred on or prior to the date of this
Subordinated Indenture or thereafter incurred, unless, in the instrument
creating or evidencing the same or pursuant to which the same is outstanding,
it is provided that such obligations are not superior in right of payment to
the Debentures or to other Debt which is PARI PASSU with, or subordinated to,
the Debentures, PROVIDED, HOWEVER, that Senior Debt shall not be deemed to
include (a) any Debt of the Company which when incurred and, without respect
to any election under Section 1111(b) of the Bankruptcy Reform Act of 1978,
was without recourse to the Company, (b) any Debt of the Company to any of
its Subsidiaries, (c) Debt to any employee of the Company, (d) any liability
for taxes, (e) Debt or other monetary obligations to trade creditors created
or assumed by the Company or any of its Subsidiaries in the ordinary course
of business in connection with the obtaining of goods, materials or services
and (f) the Debentures.
"SPECIAL EVENT" means a Tax Event or an Investment Company Event.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7.
"STATED MATURITY" when used with respect to the Debentures or any
installment of principal thereof or interest thereon means the date specified
in the Debentures as the fixed date on which the principal of the Debentures
or such installment of interest is due and payable.
"STOCK FUNDAMENTAL CHANGE" means either (i) any Fundamental Change
that is a holding company reorganization (whether effected in accordance with
Section 251(g) of the Delaware General Corporation Law or otherwise) provided
that immediately after such Fundamental Change the Common Stock of the
holding company in such Transaction is admitted for listing on a national
securities exchange or for quotation on the Nasdaq National Market or (ii)
any Fundamental Change in which more than 50% of the value (as determined in
good faith by the Board of Directors in a Board Resolution) of the
consideration received by holders of Common Stock consists of Common Stock
that for each of the 10 consecutive Trading Days prior to the Entitlement
Date has been admitted for listing or admitted for listing subject to notice
of issuance on a national securities exchange or quoted on the Nasdaq
National Market; PROVIDED, HOWEVER, that a Fundamental Change that is not a
holding company reorganization described in clause (i) above shall not be a
Stock Fundamental Change if either (a) the Company continues to exist after
the occurrence of such Fundamental Change and the outstanding Preferred
Securities continue to exist as outstanding Preferred Securities or (b) not
later than the occurrence of such Fundamental Change, the outstanding
Preferred Securities are converted into or exchanged for shares of
convertible preferred stock of an entity succeeding to the business of the
Company or a subsidiary thereof, which convertible preferred stock has
powers, preferences, and relative, participating, optional, or other rights,
and qualifications, limitations, and restrictions, substantially similar to
those of the Preferred Securities.
"SUBORDINATED 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 the terms of the Debentures.
9
"SUBSIDIARY" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50% of the outstanding shares of voting
stock. For purposes of this definition, "VOTING STOCK" means stock which has
voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"TAX ACTION" means any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein affecting taxation, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such pronouncement or
decision is announced on or after the date of the original issuance of the
Preferred Securities.
"TAX EVENT" means that the Company shall have requested and received
and shall have delivered to the Property Trustee an Opinion of Counsel (as
defined in the Declaration) from a firm having a national tax and securities
practice (which Opinion of Counsel shall not have been rescinded by such law
firm) that there has been a Tax Action which relates to any of the items
described in (i) through (iii) below, and that there is more than an
insubstantial risk that (i) the Trust is or, within 90 days after such date,
will be subject to United States federal income tax with respect to income
accrued or received on the Debentures, (ii) the Trust is or, within 90 days
after such date, will be subject to more than a de minimis amount of other
taxes, duties, assessments or other governmental charges or (iii) interest
payable by the Company on the Debentures is not or, within 90 days after such
date, will not be deductible, in whole or in part, by the Company for United
States federal income tax purposes.
"TRANSACTION" has the meaning specified in Section 13.5(a).
"TRADING DAYS" means a Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which securities are not traded on the
applicable securities exchange in the applicable securities market.
"TRUST" has the meaning specified in the first recital of this
Subordinated Indenture.
"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 Subordinated Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a Trustee
hereunder if at any time there is more than one such Person.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 (15
U.S.C.Sections 77aaa-77bbb), as amended and as in effect on the date as of
this Subordinated Indenture.
"TRUST SECURITIES" means the Common Securities and Preferred
Securities.
"VICE PRESIDENT" when used with respect to the Company or the
Trustees, means any vice president, whether or not designated by a number or
a word or words added before or after the title "VICE PRESIDENT."
10
SECTION 1.2 COMPLIANCE CERTIFICATE AND OPINIONS. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Subordinated Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent
(including covenants, compliance with which constitutes a condition
precedent), if any, provided for in this Subordinated Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent (including
covenants compliance with which constitute a condition precedent), if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required
by any provision of this Subordinated Indenture relating to such particular
application or request, no additional certificate or opinion need be
furnished. Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Subordinated Indenture (other than
the certificates provided pursuant to Section 10.5) 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
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 FORMS OF DOCUMENTS DELIVERED TO TRUSTEE. In
any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such Person,
or that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one or
more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents. Any
certificate or opinion of an officer of the Company may be based, insofar as
it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to matters upon which his certificate or opinion
is based are erroneous. Any such certificate or Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous. Where any Person
is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Subordinated Indenture, they may, but need not, be consolidated and form one
instrument.
SECTION 1.4 ACTS OF HOLDERS.
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(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Subordinated
Indenture to be given to or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments is
or 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 Subordinated Indenture and (subject to Section 6.1) conclusive
in favor of the Trustee and the Company and any agent of the Trustee
or 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 the certificate of any 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 Person acting
in other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person 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 and in accordance with such reasonable rules as the
Trustee may determine.
(d) The ownership of Debentures shall be proved by the
Securities Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Debenture shall
bind every future Holder of the same Debenture and the Holder of every
Debenture issued upon the transfer thereof or in exchange therefor or
in lieu thereof in respect of anything done or suffered to be done by
the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Debenture.
(f) The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to
take any action under this Subordinated Indenture by vote or consent.
Except as otherwise provided herein, such record date shall be the
later of 30 days prior to the first solicitation of such consent or
vote or the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 7.1 prior to such solicitation. If a
record date is fixed, those persons who were Holders at such record
date (or their duly designated proxies), and only those persons, shall
be entitled to take such action by vote or consent or to revoke any
vote or consent previously given, whether or not such persons continue
to be Holders after such record date.
(g) Without limiting the foregoing, a Holder entitled
hereunder to give or take any such action with regard to any
particular Debenture may do so with regard to all or any part of the
principal amount of such Debenture or by one or more duly appointed
agents each of
12
which may do so pursuant to such appointment with regard to all or any
different part of such principal amount.
SECTION 1.5 NOTICES, ETC. TO TRUSTEE AND COMPANY. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Subordinated
Indenture to be made upon, given or furnished to, or filed with
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose (except as otherwise provided in Section 5.1
hereof) hereunder if in writing and mailed, first class, postage prepaid,
to the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 1.6 NOTICE TO HOLDERS; WAIVER. Where this
Subordinated 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 the address of such Holder as it appears in
the Securities Register on the date such notice is mailed, which shall be not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders. Where this Subordinated
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers
of notice by Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken in reliance
upon such waiver. In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder.
SECTION 1.7 CONFLICT WITH TRUST INDENTURE ACT. If any
provision of this Subordinated Indenture 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 Subordinated Indenture, the latter provision shall
control. If any provision of this Subordinated Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the former provision shall be deemed to apply.
SECTION 1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.9 SUCCESSORS AND ASSIGNS. All covenants and
agreements in this Subordinated Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
13
SECTION 1.10 SEPARABILITY CLAUSE. In case any provision in
this Subordinated Indenture or in the Debentures shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 1.11 BENEFITS OF INDENTURE. Nothing in this
Subordinated Indenture or in the Debentures, express or implied, shall give
to any Person, other than the parties thereto, any Paying Agent and their
successors and assigns and the Holders of the Debentures, any benefit or any
legal or equitable right, remedy or claim under this Subordinated Indenture.
SECTION 1.12 GOVERNING LAW. This Subordinated Indenture and
the Debentures shall be governed by and construed in accordance with the laws
of the State of Illinois without regard to its principles of conflicts of
laws.
SECTION 1.13 NON-BUSINESS DAYS. In any case where any
Interest Payment Date, Redemption Date, or Stated Maturity of any Debenture
shall not be a Business Day, then (notwithstanding any other provision of
this Subordinated Indenture or the Debentures) payment of interest or
principal payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of
any such delay) with the same force and effect as if made on the Interest
Payment Date or Redemption Date or at the Stated Maturity, PROVIDED, HOWEVER,
that no interest shall accrue for the period from and after such Interest
Payment Date or Redemption Date or Stated Maturity.
ARTICLE 2
DEBENTURE FORM
SECTION 2.1 FORMS GENERALLY. The Debentures and the
Trustee's certificate of authentication shall be in substantially the forms
sets forth in this Article 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 applicable tax laws or the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Debentures, as evidenced by their execution of the Debentures.
The definitive Debentures shall be typewritten, printed, lithographed
or engraved or produced by any combination of these methods, if required by
any securities exchange on which the Debentures may be listed, on a steel
engraved border or steel engraved borders or may be produced in any other
manner permitted by the rules of any securities exchange on which the
Debentures may be listed, all as determined by the officers executing such
Debentures, as evidenced by their execution of such Debentures.
SECTION 2.2 FORM OF FACE OF DEBENTURE.
6 3/4% Convertible Subordinated Debenture due June 30, 2018
No. 1 $
14
Tower Automotive, Inc., a corporation organized and existing under the
laws of Delaware (the "COMPANY," which term includes any successor
corporation under the Subordinated Indenture hereinafter referred to), for
value received, hereby promises to pay to _____________________, or
registered assigns, the principal sum of ________________________________ on
June 30, 2018 and to pay interest on said principal sum from June 9, 1998 or
from the most recent interest payment date (each such date, an "INTEREST
PAYMENT DATE") on which interest has been paid or duly provided for,
quarterly plus Additional Interest, if any until the principal hereof is paid
or duly provided for or made available for payment subject to deferral as set
forth herein in arrears on March 31, June 30, September 30 and December 31 of
each year, commencing September 30, 1998 at the rate of 63/4% per annum,
until the principal hereof shall have become due and payable.
Reference is hereby made to the further provisions of this Debenture
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
Debenture shall not be entitled to any benefit under the Subordinated
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
By:
----------------------------------
SECTION 2.3 FORM OF REVERSE OF DEBENTURE. This Debenture
is one of a duly authorized issue of Debentures of the Company (the
"DEBENTURES") limited to the aggregate principal amount of $266,752,600,
issued and to be issued under a Junior Convertible Subordinated Indenture,
dated as of June 9, 1998 (the "SUBORDINATED INDENTURE"), between the Company
and The First National Bank of Chicago, as Trustee (herein called the
"TRUSTEE," which term includes any successor trustee under the Subordinated
Indenture), to which the Subordinated 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 Trustee, the Company and the Holders of the Debentures, and of the terms
upon which the Debentures are, and are to be, authenticated and delivered.
All terms used in this Debenture that are defined in the Subordinated
Indenture shall have the meanings assigned to them in the Subordinated
Indenture.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. For periods less than a
full month, interest shall be computed on the actual number of elapsed days
over 360 days. In the event that any date on which interest is payable on
this Debenture is not a Business Day, then payment of the interest on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), except
that if such Business Day is in the next succeeding calendar year,
15
then such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on the date the payment
was originally payable. The interest installment so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
the Subordinated Indenture, be paid to the Person in whose name this
Debenture (or one or more Predecessor Debentures, as defined in the
Subordinated Indenture) is registered at the close of business on the Regular
Record Date, for such interest installment which shall be the date which is
the Business Day next preceding such Interest Payment Date. Any such
interest installment not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Debenture (or one or more
Predecessor Debentures) 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, notice whereof shall be given to Holders of Debentures not less than
10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Debentures may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in the Subordinated
Indenture.
The Company shall have the right at any time during the term of this
Debenture, from time to time, to extend the interest payment period of such
Debenture for up to 20 consecutive quarters with respect to each deferral
period (each such deferral period, an "EXTENSION PERIOD"), during which
periods the Company shall have the right not to make payments of interest on
any Interest Payment Date, and at the end of which the Company shall pay all
interest then accrued and unpaid (together with Additional Interest, if any,
thereon to the extent permitted by applicable law); PROVIDED that during any
such Extension Period, the Company will not, and will not permit any
Subsidiary to (a) (i) declare or pay dividends on, make distributions with
respect to, or redeem, purchase or acquire, or make a liquidation payment
with respect to any of its Capital Stock (except for (x) dividends or
distributions in shares of, or options, warrants or rights to subscribe for
or purchase shares of its Capital Stock and conversions or exchanges of
Common Stock of one class for Common Stock of another class and (y)
redemptions or purchases of any rights pursuant to rights agreement and the
issuance of Capital Stock pursuant to such rights) or (ii) make any payments
of principal, interest or premium, if any, on or repay or repurchase or
redeem any debt securities (including guarantees of indebtedness for money
borrowed) of the Company that rank PARI PASSU with or junior to the
Debentures (other than (u) any redemption, liquidation, interest, principal
or guarantee payment by the Company where the payment is made by way of
securities (including Capital Stock) that rank PARI PASSU with or junior to
the securities on which such redemption, interest, principal or guarantee
payment is being made, (v) payments under the Guarantee (as defined in the
Declaration) or the Common Securities Guarantee (as defined in the
Declaration), (w) purchases of Common Stock related to the issuance of Common
Stock under any of the Company's benefit plans for its directors, officers or
employees, (x) as a result of a reclassification of the Company's Capital
Stock or the exchange or conversion of one series or class of the Company's
Capital Stock for another series or class of the Company's Capital Stock, (y)
the purchase of fractional interests in shares of the Company's Capital Stock
pursuant to the conversion or exchange provisions of such Capital Stock or
the security being converted or exchanged and (z) redemptions or purchases of
any rights pursuant to a rights agreement and the issuance of Capital Stock
pursuant to such rights). Prior to the termination of any such Extension
Period, the Company may further extend the interest payment period, PROVIDED
that no Extension Period shall exceed 20 consecutive quarters or extend
beyond the Stated Maturity of this Debenture. Upon the termination of any
such Extension Period and upon the payment of all accrued and unpaid interest
and any Additional Interest then due, the Company
16
may elect to begin a new Extension Period, subject to the above requirements.
No interest shall be due and payable during an Extension Period except at the
end thereof. The Company shall give the Trustee, the Property Trustee and
the Administrative Trustees notice of its selection of an Extension Period at
least one Business Day prior to the earlier of (i) the record date for the
date the distributions on the Preferred Securities (or if no Preferred
Securities are outstanding, for the date interest on the Debentures) would
have been payable except for the election to begin such Extension Period or
(ii) the date the Property Trustee of the Tower Automotive Capital Trust is
(or if no Preferred Securities are outstanding, the Debenture Trustee is)
required to give notice to NYSE or other applicable self-regulatory
organizations or to holders of such Preferred Securities (or, if no Preferred
Securities are outstanding, to the Holders of such Debentures) of the record
date.
Payment of the principal of (and premium, if any) and interest on this
Debenture will be made to the Holders in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts PROVIDED, HOWEVER, that at the option of the Company
payment of interest may be made (a) by check mailed to the address of the
Person entitled thereto as such address shall appear in the Securities
Register or (b) by wire transfer in immediately available funds at such place
and to such account as may be designated by the Person entitled thereto as
specified in the Securities Register.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Subordinated Indenture, subordinate and subject in right of
payments to the prior payment in full of all Senior Debt (as defined in the
Subordinated Indenture), and this Debenture is issued subject to the
provisions of the Subordinated Indenture with respect thereto. Each Holder
of this Debenture, 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 actions 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. Each Holder hereof, by his acceptance hereof,
waives all notice of the acceptance of the subordination provisions contained
herein and in the Subordinated Indenture by each holder of Senior Debt,
whether now outstanding or hereafter incurred, and waives reliance by each
such holder upon said provisions.
At any time on or after June 30, 2001, the Company may, at its option,
subject to the terms and conditions of Article 11 of the Subordinated
Indenture, redeem this Debenture in whole at any time or in part from time to
time, at the Redemption Prices set forth in Section 11.8 of the Subordinated
Indenture.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
If a Special Event shall occur and be continuing, this Debenture shall
be exchangeable for Preferred Securities in accordance with Section 11.9 of
the Subordinated Indenture or, in certain circumstances, redeemable by the
Company in accordance with Section 11.8 of the Subordinated Indenture.
Subject to the terms and conditions set forth in Article 13 of the
Subordinated Indenture, this Debenture is convertible, at the option of the
Holder, hereof into shares of Common Stock.
17
If a Debenture Event of Default shall occur and be continuing, the
principal of the Debentures may be declared due and payable in the manner,
with the effect and subject to the conditions provided in the Subordinated
Indenture.
The Subordinated Indenture contains provisions for satisfaction,
discharge and defeasance of the entire indebtedness of this Debenture upon
compliance by the Company with certain conditions set forth in the
Subordinated Indenture.
The Subordinated 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 Debentures to
be affected under the Subordinated Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount
of the Debentures. The Subordinated Indenture also contains provisions
permitting Holders of specified percentages in principal amount of the
Debentures at the time Outstanding, on behalf of the Holders of all
Debentures, to waive compliance by the Company with certain provisions of the
Subordinated Indenture and certain past defaults under the Subordinated
Indenture and their consequences. Any such consent or waiver shall be
conclusive and binding upon the Holder of this Debenture and upon all future
Holders of this Debenture and of any Debenture issued upon the registration
of transfer hereof or in exchange therefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Debenture.
As provided in and subject to the provisions of the Subordinated
Indenture, if a Debenture Event of Default shall occur and be continuing,
then and in every such case the Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Debentures may declare the principal
amount of all the Debentures to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), PROVIDED
that, if a Debenture Event of Default shall occur and be continuing, the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debentures fail to declare the principal of all the Debentures to
be immediately due and payable, the holders of at least 25% in aggregate
liquidation amount of the Preferred Securities then outstanding shall have
such right by a notice in writing to the Company and the Trustee; and upon
any such declaration such principal amount (or specified amount) of and the
accrued interest (including any Additional Interest) on all the Debentures
shall become immediately due and payable, PROVIDED that the payment of
principal and interest (including any Additional Interest) on such Debentures
shall remain subordinated to the extent provided in Article 12 of the
Subordinated Indenture.
The holders of the Preferred Securities, the Debentures issuable in
respect of the Preferred Securities, the shares of Company Common Stock
issuable upon conversion of the Preferred Securities and the Debentures, and
the Guarantee (collectively, the "REGISTRABLE SECURITIES") are entitled to
the benefits of a Registration Rights Agreement, dated as of June 9, 1998,
among Tower Automotive Capital Trust, the Company and the Initial Purchasers
(the "REGISTRATION RIGHTS AGREEMENT"). Pursuant to the Registration Rights
Agreement, the Company has agreed for the benefit of the holders of
Registrable Securities that (i) it will, at its cost, use its best efforts
within 90 days after the date of original issuance of the Registrable
Securities, to file a shelf registration statement (the "SHELF REGISTRATION
STATEMENT") with the Commission with respect to the resales of the
Registrable Securities, (ii) it will use its best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission within 150
days after the date of issuance of the
18
Registrable Securities and (iii) it will use its best efforts to maintain
such Shelf Registration Statement continuously effective under the Securities
Act until two years after the date of original issuance of the Preferred
Securities (or such earlier date as the holders of Registrable Securities are
able to sell all Registrable Securities immediately without restriction,
whether pursuant to Rule 144(k) under the Securities Act or any successor
rule thereto or otherwise) (the "EFFECTIVENESS PERIOD"). The Trust and the
Company will be permitted to suspend the use of the prospectus (which is a
part of the Shelf Registration Statement) in connection with sales of
Registrable Securities by holders during certain periods of time under
certain circumstances relating to pending corporate developments relating to
the Company and public filings with the Commission and similar events.
If (i) on or prior to 90 days following the date of original issuance
of the Registrable Securities, a Shelf Registration Statement has not been
filed with the Commission, or (ii) on or prior to the 150th day following the
original issuance of the Registrable Securities, such Shelf Registration
Statement has not been declared effective (each such event a "REGISTRATION
DEFAULT"), additional interest ("LIQUIDATED DAMAGES") will accrue on the
Debentures and, accordingly, additional distributions will accrue on the
Preferred Securities, from and including the day following such Registration
Default until such time as such Shelf Registration Statement is filed or such
Shelf Registration Statement is declared effective, as the case may be.
Liquidated Damages will be paid quarterly in arrears (subject to the
Company's ability to defer payment of Liquidated Damages during any Extension
Period), with the first quarterly payment due on the first Interest Payment
Date following the date on which such Liquidated Damages begin to accrue, and
will accrue at a rate per annum equal to an additional 0.25% of the principal
amount or liquidation amount, as applicable, to and including the 90th day
following such Registration Default and 0.50% thereof from and after the 91st
day following such Registration Default. In the event that during the
Effectiveness Period the Shelf Registration Statement ceases to be effective
for more than 90 days, whether or not consecutive, during any 12-month period
then the interest rate borne by the Debentures and the distribution rate
borne by the Preferred Securities will each increase by an additional 0.50%
per annum from the 91st day of the applicable 12-month period such Shelf
Registration Statement ceases to be effective until the earlier of such time
as (i) the Shelf Registration Statement again becomes effective or (ii) the
Effectiveness Period expires.
No reference herein to the Subordinated Indenture and no provision of
this Debenture or of the Subordinated 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 Debenture at the
times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Subordinated Indenture and subject to certain
limitations therein set forth, the transfer of this Debenture is registrable
in the Securities Register, upon surrender of this Debenture for registration
of transfer at the office or agency of the Company maintained under Section
10.2 of the Subordinated Indenture duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Securities Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Debentures, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees. No service charge shall
be made for any such registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
19
Prior to due presentment of this Debenture for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Debenture is registered as
the owner hereof for all purposes, whether or not this Debenture be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Debentures are issuable only in registered form without coupons in
denominations of $50 and any integral multiple thereof. As provided in the
Subordinated Indenture and subject to certain limitations therein set forth,
Debentures are exchangeable for a like aggregate principal amount of
Debentures of a different authorized denomination, as requested by the Holder
surrendering the same.
The Company and, by its acceptance of this Debenture or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Debenture agree that for United States Federal, state and
local tax purposes it is intended that this Debenture constitute indebtedness.
THE SUBORDINATED INDENTURE AND THIS DEBENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES THEREOF.
20
ASSIGNMENT FORM
To assign this Debenture, fill in the form below:
(i) or (we) assign and transfer this Security to
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
agent to transfer this Debenture on the books of the Company. The agent may
substitute another to act for him.
Your Signature:
-----------------------------------------------------
(Sign exactly as your name appears on the other
side of this Security)
Date:
---------------------------------
Signature Guarantee:*
--------------------------------------------
[Include the following if the Debenture bears a Restricted Securities Legend --
In connection with any transfer of any of the Debentures evidenced by this
certificate, the undersigned confirms that such Debentures are being:
CHECK ONE BOX BELOW
(1) / / exchanged for the undersigned's own account without
transfer; or
------------------
* Signature must be guaranteed by an institution which is a member of one of
the following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP);
or (iv) in such other guarantee programs acceptable to the Trustee.
21
(2) / / transferred pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(3) / / transferred pursuant to another available exemption from
the registration requirements of the Securities Act of
1933; or
(4) / / transferred pursuant to an effective Registration Statement
under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Debentures evidenced by this certificate in the name of any person
other than the registered Holder thereof; PROVIDED, HOWEVER, that if box (3)
is checked, the Trustee may require, prior to registering any such transfer
of the Securities such legal opinions, certifications and other information
as the Company has reasonably requested in writing and directed the Trustee
to require confirmation that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the exemption provided by
Rule 144 under such Act; PROVIDED, FURTHER, that after the date that a shelf
Registration Statement under the Securities Act of 1933 has been filed and so
long as such shelf Registration Statement continues to be effective, the
Trustee may only permit transfers for which box (4) has been checked.
----------------------------
Signature
Signature Guarantee:*
-------------------------------- ----------------------------
Signature must be guaranteed Signature
--------------------------------------------------------------------------------
Dated:
------------------------- --------------------------------------
NOTICE: To be executed by an executive
officer
[TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
------------------
* Signature must be guaranteed by an institution which is a member of one of
the following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP);
or (iv) in such other guarantee programs acceptable to the Trustee.
22
The undersigned represents and warrants that it is purchasing
this Debenture for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that
the transferor is relying upon the undersigned's foregoing representations in
order to claim the exemption from registration provided by Rule 144A.
Dated:
------------------------ --------------------------------------
NOTICE: To be executed by an executive
officer]
23
NOTICE OF CONVERSION
To: Tower Automotive, Inc.
The undersigned owner of this Debenture hereby irrevocably
exercises the option to convert this Debenture, or the portion below
designated, into Common Stock of Tower Automotive, Inc. in accordance with
the terms of the Subordinated Indenture referred to in this Debenture, and
directs that the shares issuable and deliverable upon conversion, together
with any check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in
the assignment below. If shares are to be issued in the name of a person
other than the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto.
Date: ____________, ____
in whole __
Portions of Debenture to be converted
in part __ ($50 or integral multiples thereof):
$_________________
_____________________________________________
Signature (for conversion only)
Please Print or Typewrite Name and
Address, Including Zip Code, and Social
Security or Other Identifying Number
_____________________________________________
_____________________________________________
_____________________________________________
Signature Guarantee:* ____________
---------------------
* Signature must be guaranteed by an institution which is a member of one of
the following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP);
or (iv) in such other guarantee programs acceptable to the Trustee.
24
SECTION 2.4 ADDITIONAL PROVISIONS REQUIRED IN GLOBAL
DEBENTURE. Any Global Debenture issued hereunder shall, in addition to the
provisions contained in Sections 2.2 and 2.3 bear a legend in substantially
the following form:
"This Debenture is a Global Debenture within the meaning of the Subordinated
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Debenture is exchangeable for
Debentures registered in the name of a person other than the Depositary or
its nominee only in the limited circumstances described in the Subordinated
Indenture and 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."
SECTION 2.5 FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. The form of Trustee's Certificate of Authentication shall be
as follows:*
"This is one of the Debentures designated therein referred to in the within
mentioned Subordinated Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
Authorized Signatory
Dated: ________________"
SECTION 2.6 INITIAL ISSUANCE TO PROPERTY TRUSTEE. The
Debentures initially issued to the Property Trustee of the Trust shall be in
the form of one or more individual certificates in definitive, fully
registered form without distribution coupons and shall bear the following
legend (the "RESTRICTED SECURITIES LEGEND") unless the Company determines
otherwise in accordance with applicable law:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (2)
AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
---------------
* Or in the form provided in Section 6.14 in the event that a separate
Authenticating Agent is appointed pursuant thereto.
25
THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK, IF ANY, ISSUABLE UPON
CONVERSION OR EXCHANGE OF SUCH SECURITY EXCEPT (A) TO TOWER AUTOMOTIVE, INC.
OR A SUBSIDIARY THEREOF, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, OR (C) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE
SECURITY EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED
HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF
THE SECURITY EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR
ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH
ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE FOR THE PREFERRED SECURITIES OR THE DEBENTURES, AS
THE CASE MAY BE (OR, IF THIS CERTIFICATE EVIDENCES COMMON STOCK, SUCH HOLDER
MUST FURNISH TO THE TRANSFER AGENT), TOGETHER WITH SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS TOWER AUTOMOTIVE, INC., THE TRUSTEE OR THE
TRANSFER AGENT, AS APPLICABLE, MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND
WILL BE REMOVED AFTER THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES
ACT."
ARTICLE 3
THE DEBENTURES
SECTION 3.1 AMOUNT OF DEBENTURES. The aggregate principal
amount of Debentures which may be authenticated and delivered under this
Subordinated Indenture is $266,752,600 for Debentures authenticated and
delivered upon registration of, transfer of, or in exchange for, or in lieu
of, other Debentures pursuant to Sections 3.4, 3.5 or 3.6.
SECTION 3.2 DENOMINATIONS. The Debentures shall be in
registered form without coupons and shall be issuable in denominations of $50
and any integral multiple thereof.
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Debentures shall be executed on behalf of the Company by its President
or one of its Vice Presidents attested by its Secretary, one of its Assistant
Secretaries, or a Vice President. The signature of any of these officers on
the Debentures may be manual or facsimile.
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Debentures bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Debentures
or did not hold such offices at the date of such Debentures. Upon the
execution and delivery of this Subordinated Indenture, or from time to time
thereafter, Debentures may be executed by the Company and delivered to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver said Securities to or upon Company Order without any further action
by the Company. Debentures may be authenticated on original issuance from
time to time and delivered pursuant to such procedures acceptable to the
Trustee ("PROCEDURES") as may be specified from time to time by Company
Order. Procedures may authorize authentication and delivery pursuant to
instructions of the Company or a duly authorized agent, which instructions
shall be promptly confirmed in writing.
Each Debenture shall be dated the date of its authentication.
No Debenture shall be entitled to any benefit under this Subordinated
Indenture or be valid or obligatory for any purpose, unless there appears on
such Debenture a certificate of authentication substantially in the form
provided for herein executed by the Trustee by the manual signature of one of
its authorized officers, and such certificate upon any Debenture shall be
conclusive evidence, and the only evidence, that such Debenture has been duly
authenticated and delivered hereunder.
SECTION 3.4 TEMPORARY DEBENTURES. Pending the preparation
of definitive Debentures, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Debentures which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in
any denomination, substantially of the tenor of the definitive Debentures in
lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Debentures may determine, as evidenced by their execution of such Debentures.
If temporary Debentures are issued, the Company will cause definitive
Debentures to be prepared without unreasonable delay. After the preparation
of definitive Debentures, the temporary Debentures shall be exchangeable for
definitive Debentures upon surrender of the temporary Debentures at the
office or agency of the Company designated for the purpose without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Debentures, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Debentures
of authorized denominations. Until so exchanged, the temporary Debentures
shall in all respects be entitled to the same benefits under this
Subordinated Indenture as definitive Debentures.
SECTION 3.5 REGISTRATION, TRANSFER AND EXCHANGE. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Debentures and
of transfers of Debentures. Such register is herein sometimes referred to as
the "SECURITIES REGISTER." The Trustee is hereby appointed "SECURITIES
REGISTRAR" for the purpose of registering Debentures and transfers of
Debentures as herein provided.
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Upon surrender for registration or transfer of any Debenture at the
office or agency of the Company designated for that 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 Debentures of any
authorized denominations, of a like aggregate principal amount.
At the option of the Holder, Debentures may be exchanged for other
Debentures of any authorized denominations, of a like aggregate principal
amount, upon surrender of the Debentures to be exchanged at such office or
agency. Whenever any Debentures are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Debentures
which the Holder making the exchange is entitled to receive.
All Debentures issued upon any transfer or exchange of Debentures
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Subordinated Indenture, as the
Debentures surrendered upon such transfer or exchange.
Every Debenture presented or surrendered for transfer or exchange
shall (if so required by the Company or the Securities Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or
exchange of Debentures, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Debentures.
Notwithstanding any of the foregoing, the Global Debenture shall be
exchangeable pursuant to this Section 3.5 for Debentures registered in the
names of Persons other than the Depositary for such Debenture or its nominee
only if (a) such Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for the Global Debenture, and the Company
shall not have appointed a successor depositary within 90 days after such
notice, (b) at any time such Depositary ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, and the
Company shall not have appointed a successor depositary within 90 days, (c)
the Company executes and delivers to the Trustee a Company Order that the
Global Debenture shall be so exchangeable or (d) there shall have occurred
and be continuing a Debenture Event of Default. The Global Debenture shall
be exchangeable for Debentures registered in such names as such Depositary
shall direct.
Notwithstanding any other provisions in this Subordinated Indenture,
the Global Debenture may not be transferred except as a whole by the
Depositary with respect to the Global Debenture to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (a) to issue, transfer or exchange any Debenture
during a period beginning at the opening of business 15 days before the day
of selection for redemption of Debentures pursuant to Article 11 and ending
at the close of business on the day of mailing of notice of redemption or (b)
to transfer
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or exchange any Debenture so selected for redemption in whole or in part,
except, in the case of any Debenture to be redeemed in part, any portion
thereof not to be redeemed.
Upon any distribution of the Debentures to the holders of the
Preferred Securities in accordance with the Declaration, the Company and the
Trustee shall enter into a supplemental indenture pursuant to Section 9.1(i)
to provide for transfer procedures with respect to the Debentures
substantially similar to those contained in the Declaration to the extent
applicable in the circumstances existing at the time of such distribution.
SECTION 3.6 MUTILATED, DESTROYED, LOST AND STOLEN
DEBENTURES. If any mutilated Debenture is surrendered to the Trustee
together with such security or indemnity as may be required by the Company or
the Trustee to save each of them harmless, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Debenture
and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (a)
evidence to their satisfaction of the destruction, loss or theft of any
Debenture, and (b) such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of actual notice to the
Company or the Trustee that such Debenture has been acquired by a bona fide
purchaser, the Company shall execute and upon the receipt of a Company Order
requesting authentication, the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Debenture, a new Debenture bearing
a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debenture has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Debenture, pay such Debenture.
Upon the issuance of any new Debenture under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debenture issued pursuant to this Section in lieu of any
destroyed, lost or stolen Debenture shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debenture shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Subordinated Indenture equally and
proportionately with any and all other Debentures duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debentures.
SECTION 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Debenture which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date, shall be paid to the Person in
whose name that Debenture (or one or more Predecessor
29
Debentures) is registered at the close of business on the Regular Record
Date, except that interest payable on the Stated Maturity of the Debentures
shall be paid to the Person to whom principal is paid.
Any interest on the Debentures which is payable, but is not timely
paid or duly provided for, on an Interest Payment Date ("DEFAULTED
INTEREST"), shall forthwith cease to be payable to the registered Holder on
the Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case,
as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debentures (or their
respective Predecessors Debentures) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on the Debentures and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first class, postage prepaid, to
each Holder of the Debentures at the address of such Holder as it
appears in the Securities 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 mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names the Debentures (or their respective Predecessor
Debentures) are registered 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 Debentures may be
listed and, upon such notice as may be required by such exchange (or
by the Trustee if the Debentures are not listed), if, after notice
given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Debenture
delivered under this Subordinated Indenture upon transfer of or in exchange
for or in lieu of any other Debenture shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debenture.
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SECTION 3.8 PERSONS DEEMED OWNERS. The Company, the
Trustee, the Paying Agent and any agent of the Company or the Trustee or the
Paying Agent may treat the Person in whose name any Debenture is registered
as the owner of such Debenture for the purpose of receiving payment of
principal of and (subject to Section 3.7) interest or premium on such
Debenture and for all other purposes whatsoever, whether or not such
Debenture be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
SECTION 3.9 CANCELLATION. All Debentures surrendered for
payment, redemption, conversion, transfer or exchange shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee, and any
such Debentures and Debentures surrendered directly to the Trustee for any
such purpose shall be promptly canceled by it. The Company may at any time
deliver or cause to be delivered to the Trustee for cancellation any
Debentures previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Debentures so delivered
shall be promptly canceled by the Trustee. No Debentures shall be
authenticated in lieu of or in exchange for any Debentures canceled as
provided in this Section, except as expressly permitted by this Subordinated
Indenture. All canceled Debentures shall be destroyed by the Trustee and
upon written request, the Trustee shall deliver to the Company a certificate
of such destruction.
SECTION 3.10 COMPUTATION OF INTEREST. Interest on the
Debentures shall be computed on the basis of a 360-day year of twelve 30-day
months.
SECTION 3.11 DEFERRALS OF INTEREST PAYMENT PERIODS. The
Company shall have the right, at any time during the term of the Debentures,
so long as no Debenture Event of Default has occurred and is continuing, from
time to time to extend the interest payment period for the Debentures for up
to 20 consecutive quarters with respect to each deferral period (each, an
"EXTENSION PERIOD") during which periods the Company shall have the right to
not make payments of interest on any Interest Payment Date, and at the end of
such Extension Period the Company shall pay all interest then accrued and
unpaid thereon (together with Additional Interest thereon, if any, at the
rate specified for the Debentures, to the extent permitted by applicable
law), PROVIDED, HOWEVER, that during any such Extension Period, the Company
shall not, and shall cause any Subsidiary not to, (i) declare or pay
dividends on, make distributions with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to any of its Capital
Stock (except for (x) dividends or distributions in shares of, or options,
warrants or rights to subscribe for or purchase shares of its Capital Stock
and conversions or exchanges of Common Stock of one class for Common Stock of
another class and (y) redemptions or purchases of any rights pursuant to a
rights agreement and the issuance of Capital Stock pursuant to such rights)
or (ii) make any payments of principal, interest or premium, if any, on or
repay or repurchase or redeem any debt securities (including guarantees of
indebtedness for money borrowed) of the Company that rank PARI PASSU with or
junior to the Debentures (other than (u) any redemption, liquidation,
interest, principal or guarantee payment by the Company where the payment is
made by way of securities (including Capital Stock) that rank PARI PASSU with
or junior to the securities on which such redemption, liquidation, interest,
principal or guarantee payment is being made, (v) payments under the
Guarantee (as defined in the Declaration) or the Common Securities Guarantee
(as defined in the Declaration), (w) purchases of Common Stock related to the
issuance of Common Stock under any
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of the Company's benefit plans for its directors, officers or employees, (x)
as a result of a reclassification of the Company's Capital Stock or the
exchange or conversion of one series or class of the Company's Capital Stock
for another series or class of the Company's Capital Stock, (y) the purchase
of fractional interests in shares of the Company's Capital Stock pursuant to
the conversion or exchange provisions of such Capital Stock or the security
being converted or exchanged and (z) redemptions or purchases of any rights
pursuant to a rights agreement and the issuance of Capital Stock pursuant to
such rights). Prior to the termination of any such Extension Period, the
Company may further extend the interest payment period, PROVIDED that no such
Extension Period shall exceed 20 consecutive quarters or extend beyond the
Stated Maturity of the Debentures. Upon termination of any Extension Period
and upon the payment of all accrued and unpaid interest and any Additional
Interest then due, the Company may select a new Extension Period, subject to
the above requirements. No interest, including Additional Interest, if any,
shall be due and payable during an Extension Period, except at the end
thereof. The Company shall give the Trustee, the Property Trustee and the
Administrative Trustees written notice of its selection of such Extension
Period at least one Business Day prior to the earlier of (i) the record date
for the date the distributions on the Preferred Securities of the Trust (or
if no, Preferred Securities are outstanding, for the date interest on the
Debentures) would have been payable except for the election to begin such
Extension Period and (ii) the date the Property Trustee (or, if no Preferred
Securities are outstanding, the Trustee) is required to give notice to NYSE
or other applicable self-regulatory organization or to holders of such
Preferred Securities (or, if no Preferred Securities are outstanding, to the
Holders of such Debentures) of such record date, but in any event not less
than one Business Day prior to such record date. Such notice shall specify
the period selected.
The Trustee shall promptly give notice of the Company's selection of
such Extension Period to the Holders of the outstanding Debentures and
Preferred Securities.
SECTION 3.12 RIGHT OF SET-OFF. Notwithstanding anything to
the contrary in the Subordinated Indenture, the Company shall have the right
to set-off any payment it is otherwise required to make thereunder in respect
of the Debenture to the extent the Company has theretofore made, or is
concurrently on the date of such payment making, a payment relating to the
Debentures under the Guarantee.
SECTION 3.13 AGREED TAX TREATMENT. Each Debenture issued
hereunder shall provide that the Company and, by its acceptance of a
Debenture or a beneficial interest therein, the Holder of, and any Person
that acquires a beneficial interest in, such Debenture agree that for United
States Federal, state and local tax purposes it is intended that such
Debenture constitute indebtedness.
SECTION 3.14 CUSIP NUMBERS. The Company in issuing the
Debentures may use "CUSIP" numbers (if then generally in use), and, if so,
the Trustee shall use such "CUSIP" number in notices of redemption as a
convenience to Holders; PROVIDED that any such notice may state that no
representation is made as to the correctness of such number either as printed
on the Debentures or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on
the Debentures, and any such redemption shall not be affected by any defect
in or omission of such numbers.
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SECTION 3.15 GLOBAL SECURITY.
(a) In connection with distribution of Debentures to holders
of the Preferred Securities in connection with the involuntary or
voluntary dissolution of the Trust, including a dissolution following
the occurrence of a Special Event,
(i) the Debentures in certificated form may be presented to
the Trustee by the Property Trustee in exchange for a global
certificate in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Debentures (a
"GLOBAL DEBENTURE"), to be registered in the name of the
Depositary, or its nominee, and delivered by the Trustee to the
Depositary, or its custodian, for crediting to the accounts of its
participants pursuant to the procedures of the Depositary. The
Company upon any such presentation shall execute a Global
Debenture in such aggregate principal amount and deliver the same
to the Trustee for authentication and delivery in accordance with
this Subordinated Indenture; and
(ii) if any Preferred Securities are held in non
book-entry certificated form, the Debentures in certificated
form may be presented to the Trustee by the Property Trustee
and any Preferred Security certificate which represents
Preferred Securities other than Preferred Securities held by
the Depositary or its nominee ("NON BOOK-ENTRY PREFERRED
SECURITIES") will be deemed to represent beneficial interests
in Debentures presented to the Trustee by the Property Trustee
having an aggregate principal amount equal to the aggregate
liquidation amount of the Non Book-Entry Preferred Securities
until such Preferred Security certificates are presented to the
Securities Registrar for transfer or reissuance at which time
such Non-Book Entry Preferred Security certificates will be
canceled and a Debenture, registered in the name of the holder
of the Preferred Security certificate or the transferee of the
holder of such Preferred Security certificate, as the case may
be, with an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Security certificate
canceled, will be executed by the Company and delivered to the
Trustee for authentication and delivery in accordance with this
Subordinated Indenture. On issue of such Debentures,
Debentures with an equivalent aggregate principal amount that
were presented by the Property Trustee to the Trustee will be
deemed to have been canceled.
(b) A Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a nominee of such
successor Depositary.
(c) If (a) the Depositary notifies the Company that it is
unwilling or unable to continue as a depositary for such Global
Debenture and no successor depositary shall have been appointed within
90 days by the Company, (b) the Depositary, at any time, ceases to be
a clearing agency registered under the Exchange Act at which time the
Depositary is required to be so registered to act as such depositary
and no successor depositary shall have been appointed within 90 days
by the Company, (c) the Company, in its sole discretion, determines
that such Global Debenture shall be so exchangeable or (d) there shall
have
33
occurred and be continuing a Debenture Event of Default with
respect to such Debentures, as the case may be, the Company will
execute, and, subject to Article 3 of this Subordinated Indenture, the
Trustee, upon written notice from the Company and receipt of a Company
Order, will authenticate and deliver the Debentures in definitive
registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the
Global Debenture in exchange for such Global Debenture. In addition,
upon a Debenture Event of Default that has occurred and is continuing
or in the event the Company determines that the Debenture shall no
longer be represented by a Global Debenture, the Company will execute,
and subject to Section 3.5 of this Subordinated Indenture, the
Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company and a Company Order, will authenticate
and make available for delivery, the Debentures in definitive
registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the
Global Debenture in exchange for such Global Debenture. Upon the
exchange of the Global Debenture for such Debentures in definitive
registered form without coupons, in authorized denominations, the
Global Debenture shall be canceled by the Trustee. Such Debentures in
definitive registered form issued in exchange for the Global Debenture
shall be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee in
writing. The Trustee shall deliver such Debentures to the Depositary
for delivery to the Persons in whose names such Debentures are so
registered.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE. This
Subordinated Indenture shall cease to be of further effect (except as to (i)
any surviving rights of transfer, substitution and exchange of Debentures,
(ii) rights hereunder of Holders to receive payments of principal of (and
premium, if any) and interest (including Additional Interest, if any) on the
Debentures and other rights, duties and obligations of the Holders as
beneficiaries hereof with respect to the amounts, if any, so deposited with
the Trustee and (iii) the rights and obligations of the Trustee hereunder),
and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Subordinated Indenture, when
(a) either
(i) all Debentures theretofore authenticated and delivered
(other than (i) Debentures which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 3.6 and (ii) Debentures for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.3) have
been delivered to the Trustee for cancellation; or
34
(ii) all such Debentures not theretofore delivered to the
Trustee for cancellation:
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year of the date of deposit or are
to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving
of written notice of redemption to the Trustee in the
name, and at the expense, of the Company, and the
Company has deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an
amount in the currency or currencies in which the
Debentures are payable sufficient (without regard to
investment of such amount deposited) to pay and
discharge the entire indebtedness on the Debentures not
theretofore delivered to the Trustee for cancellation,
for principal (and premium, if any) and interest
(including any Additional Interest) to the date of such
deposit or to the Stated Maturity; or
(c) have been redeemed or tendered for conversion;
or
(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 Subordinated Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Subordinated Indenture,
the obligations of the Company to the Trustee under Section 6.7 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 4.2 and the
last paragraph of Section 10.3 shall survive.
SECTION 4.2 APPLICATION OF TRUST MONEY. Subject to the
provisions of the last paragraph of Section 10.3, all money deposited with
the Trustee pursuant to Section 4.1 shall be held in trust and applied by it,
in accordance with the provisions of the Debentures and this Subordinated
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 or obligations have been
deposited with or received by the Trustee; PROVIDED, HOWEVER, such moneys
need not be segregated from other funds except to the extent required by law.
35
ARTICLE 5
REMEDIES
SECTION 5.1 DEBENTURE EVENTS OF DEFAULT. "DEBENTURE EVENT
OF DEFAULT," wherever used herein with respect to the Debentures, means any
one of the following events that has occurred and is continuing (whatever the
reason for such Debenture Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(a) default in the payment of any interest upon the Debenture,
including any Additional Interest in respect thereof, when it becomes due
and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any due date in the case of an Extension
Period);
(b) default in the payment of the principal of (or premium,
if any, on) the Debentures when due whether at Stated Maturity, upon
redemption by declaration or otherwise;
(c) failure on the part of the Company duly to observe or
perform in any material respect any other of the covenants or
agreements on the part of the Company contained in the Debentures or
contained in this Subordinated Indenture (other than a covenant or
agreement which has been expressly included in this Subordinated
Indenture solely for the benefit of the Company) and continuance of
such failure for a period of 90 days after the date on which written
notice of such failure, requiring the same to be remedied and stating
that such notice is a "NOTICE OF DEFAULT" hereunder, shall have been
given to the Company by the Trustee, by registered or certified mail,
or to the Company and the Trustee by a Holder or Holders of at least
25% in aggregate principal amount of the Debentures at the time
Outstanding or the holder or holders of at least 25% in aggregate
liquidation amount of the Preferred Securities;
(d) failure by the Company to issue Common Stock upon an
appropriate election by the Holder or Holders of the Debentures to
convert the Debentures into shares of Common Stock;
(e) the voluntary or involuntary dissolution, winding up or
termination of the Trust, except in connection with the distribution of
the Debentures to Holders in a liquidation of the Trust, the redemption
or conversion of all of the Trust Securities or in connection with the
merger, consolidation or amalgamation of the Trust as permitted by the
Declaration;
(f) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company as bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of the Company under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or of any substantial part of
its property or ordering the
36
winding up or liquidation of its affairs, and the continuance of any
such decree or order unstayed and in effect for a period of 60
consecutive days; or
(g) the institution by the Company of proceedings to be
adjudicated as bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property or the making by it
of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due
and its willingness to be adjudicated as bankrupt, or the taking of
corporate action by the Company in furtherance of any such action.
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT. If a Debenture Event of Default occurs and is continuing, then and
in every such case the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Debentures may declare the
principal amount of all the Debentures to be due and payable immediately, by
a notice in writing to the Company (and to the Trustee if given by Holders),
PROVIDED that, if a Debenture Event of Default occurs and is continuing, and
the Trustee or the Holders of not less than 25% in aggregate principal amount
of the Outstanding Debentures fail to declare the principal of all the
Debentures to be immediately due and payable, the holders of at least 25% in
aggregate liquidation amount of the Preferred Securities then outstanding
shall have such right by a notice in writing to the Company and the Trustee,
and upon any such declaration such principal amount (or specified amount) of
and the accrued interest (including any Additional Interest) on all the
Debentures shall become immediately due and payable, PROVIDED that the
payment of principal and interest (including any Additional Interest) on the
Debentures shall remain subordinated to the extent provided in Article 12.
At any time after such a declaration of acceleration with respect to
Debentures 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 aggregate principal amount of the
Outstanding Debentures, 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 installments of interest (including any
Additional Interest) on the Debentures;
(ii) the principal of (and premium, if any, on) the
Debentures which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Debentures;
37
(iii) to the extent that payment of such interest is
lawful, interest (including any Additional Interest) upon overdue
installments of interest at the rate borne by the Debentures; 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; or
(b) all Debenture Events of Default that shall have occurred
and been continuing with respect to Debentures, other than the
non-payment of the principal of the Debentures which has become due
solely by such acceleration, have been cured or waived as provided in
Section 5.13. If the holders of a majority in aggregate principal
amount of the Outstanding Debentures fail to rescind and annul such
declaration and its consequences, the holders of a majority in
liquidation amount of the Preferred Securities then outstanding shall
have such right.
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE. The Company covenants that if:
(a) default is made in the payment of any installment of interest
(including any Additional Interest) on the Debentures 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 (and
premium, if any, on) the Debentures whether at the Stated Maturity
thereof upon redemption by declaration or otherwise, the Company will,
upon demand of the Trustee, pay to it, for the benefit of the Holders
of the Debentures, the whole amount then due and payable on the
Debentures for principal (and premium, if any) and interest (including
any Additional Interest), including, to the extent that payment of
such interest shall be lawful, interest on any overdue principal (and
premium, if any) and on any overdue installments of interest
(including any Additional Interest) at the rate borne by the
Debentures, and, in addition thereto, all amounts owing the Trustee
under Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgement or final decree, and
may enforce the same against the Company or any other obligor upon the
Debentures and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon the Debentures, wherever situated.
If a Debenture 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 of the Debentures 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 Subordinated
38
Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Debentures
or the property of the Company or of such other obligor or their creditors:
(a) the Trustee (irrespective of whether the principal of the
Debentures shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of overdue
principal (or premium, if any) or interest (including any Additional
Interest)) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim (including a claim for
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) for the whole amount of
principal (and premium, if any) and interest (including any
Additional Interest) owing and unpaid in respect to the
Debentures and to file such other papers or documents as may be
necessary or advisable and to take any and all actions as are
authorized under the Trust Indenture Act in order to have the
claims of the Holders and any predecessor to the Trustee under
Section 6.7 and of the Holders allowed in any such judicial
proceedings; and
(ii) in particular, to collect and receive any moneys or
other property payable or deliverable on any such claims and to
distribute the same in accordance with Section 5.6; and
(b) any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial
proceeding is hereby authorized by each Holder to make such payments
to the Trustee for distribution in accordance with Section 5.6, 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
to it and any predecessor Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Debentures 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 be a member
of a creditors' or other similar committee.
SECTION 5.5 TRUSTEE MAY ENFORCE CLAIM WITHOUT POSSESSION OF
DEBENTURES. All rights of action and claims under this Subordinated
Indenture or the Debentures may be prosecuted and enforced by the Trustee
without the possession of any of the Debentures 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 judgement shall, after
39
provision for the payment of all the amounts owing the Trustee and any
predecessor Trustee under Section 6.7, its agents and counsel, be for the
ratable benefit of the Holders of the Debentures in respect of which such
judgement has been recovered.
SECTION 5.6 APPLICATION OF MONEY COLLECTED. Any money or
property collected or to be applied by the Trustee with respect to the
Debentures 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 or property on account of principal (or premium, if any) or
interest (including any Additional Interest), upon presentation of the
Debentures and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: to the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.7,
SECOND: to the payment of the amounts then due and unpaid upon the
Debentures for principal (and premium, if any) and interest (including any
Additional Interest), 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 the Debentures for
principal (and premium, if any) and interest (including any Additional
Interest), respectively; and
THIRD: the balance, if any, to the Person or Persons entitled thereto.
SECTION 5.7 LIMITATION ON SUITS. No Holder of the
Debentures, including a holder of Preferred Securities acting to enforce the
rights of the Property Trustee as a Holder of the Debentures pursuant to
Section 5.8 of the Declaration, shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Subordinated
Indenture or for the appointment of a receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) or for any other remedy
hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Debenture Event of Default;
(b) if the Trust is not the sole holder of the Outstanding
Debentures, the Holders of not less than 25% in principal amount of
the Outstanding Debentures shall have made written request to the
Trustee to institute proceedings in respect of such Debenture 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 Debentures;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of any
provision of this Subordinated Indenture to affect, disturb or prejudice the
rights of any other Holders of the Debentures, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce
any right under this Subordinated Indenture, except in the manner herein
provided and for the equal and ratable benefit of all such Holders.
SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST. Notwithstanding any other provision in this
Subordinated Indenture, the Holder of any Debenture shall have the right
which is absolute and unconditional to receive payment of the principal of
(and premium, if any) and (subject to Sections 3.7 and 3.11) interest
(including any Additional Interest) on such Debenture on its Stated Maturity
or to convert such Debenture in accordance with Article 13 and to institute
suit for the enforcement of any such payment and right to convert, and such
right shall not be impaired without the consent of such Holder. For so long
as any Preferred Securities remain Outstanding, to the fullest extent
permitted by law and subject to the terms of this Subordinated Indenture and
the Declaration, upon a Debenture Event of Default that has occurred and is
continuing specified in Sections 5.1(a) or 5.1(b), any holder of Preferred
Securities shall have the right to institute a proceeding directly against
the Company, for enforcement of payment to such holder of the principal
amount of (or premium, if any) or interest (including Additional Interest) on
Debentures having a principal amount equal to the liquidation amount of the
Preferred Securities of such holder (a "DIRECT ACTION"). Notwithstanding any
payment made to such holder of Preferred Securities by the Company in
connection with a Direct Action, the Company shall remain obligated to pay
the principal of (or premium, if any) or interest (including Additional
Interest) on the Debentures held by the Trust or the Property Trustee. In
connection with any such Direct Action, the rights of the Company will be
subrogated to the rights of any holder of the Preferred Securities to the
extent of any payment made by the Company to such holder of Preferred
Securities as a result of such Direct Action. Except as set forth in this
Section, the holders of Preferred Securities shall have no right to execute
any right or remedy available to the Holders of or in respect of, the
Debentures.
SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Subordinated 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 the Company, the
Trustee and the Holder shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE. Except as
otherwise provided in the last paragraph of Section 3.6, 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
41
remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
SECTION 5.11 DELAY OR OMISSION NOT WAIVER. No delay or
omission of the Trustee or of any Holder of the Debentures to exercise any
right or remedy accruing upon any Debenture Event of Default that shall have
occurred and be continuing shall impair any such right or remedy, or
constitute a waiver of any such Debenture 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 5.12 CONTROL BY HOLDERS. The Holders of a majority
in aggregate principal amount of the Outstanding Debentures shall have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee, with respect to the Debentures, PROVIDED that:
(a) such direction shall not be in conflict with any rule of
law or with this Subordinated Indenture,
(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 6.1, the Trustee
shall have the right to decline to follow such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of
the Trustee, determine that the proceeding so directed would be
unjustly prejudicial to the Holders not joining in any such direction
or would involve the Trustee in personal liability.
Upon receipt by the Trustee of any written notice directing the time,
method or place of conducting any such proceeding or exercising any such
trust or power, with respect to the Debentures and, if all or part of the
Debentures is represented by a Global Security, a record date shall be
established for determining Holders of Outstanding Debentures entitled to
join in such notice, which record date shall be at the close of business on
the day the Trustee receives such notice. The Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
join in such notice, whether or not such Holders remain Holders after such
record date, PROVIDED, that, unless the Holders of a majority in principal
amount of the Outstanding Debentures shall have joined in such notice prior
to the day which is 90 days after such record date, such notice shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new
notice identical to a notice which has been canceled pursuant to the proviso
to the preceding sentence, in which event a new record date shall be
established pursuant to the provisions of this Section 5.12.
42
SECTION 5.13 WAIVER OF PAST DEFAULTS. Subject to Section
9.2 hereof, the Holders of not less than a majority in aggregate principal
amount of the Outstanding Debentures affected by any past default may on
behalf of the Holders of all the Debentures waive any past default hereunder
with respect to Debentures and its consequences, except a default:
(a) in the payment of the principal of (or premium, if any)
or interest (including any Additional Interest) on the Debentures
(unless such default has been cured or waived and a sum sufficient to
pay all matured installments of interest, Additional Interest and
principal due otherwise than by acceleration has been deposited with
the Trustee), or
(b) in respect of a covenant or provision hereof which under
Article 9 cannot be modified or amended without the consent of the
Holder of each Outstanding Debenture;
PROVIDED, HOWEVER, that if the Debentures are held by the Trust or a trustee
of the Trust, such waiver shall not be effective until the holders of a
majority in liquidation amount of Trust Securities shall have consented to
such waiver; PROVIDED, FURTHER, that if the consent of the Holder of each
outstanding Debenture is required, such waiver shall not be effective until
each holder of the Trust Securities shall have consented to such waiver.
Upon any such waiver, such default shall cease to exist, and any
Debenture Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Subordinated Indenture, but no such waiver
shall extend to any subsequent or other default or impair any right
consequent thereon. If the Holders of a majority in aggregate principal
amount of the Outstanding Debentures fail to waive such Debenture Event of
Default, the holders of a majority in aggregate liquidation amount of
Preferred Securities shall have such right. No such rescission shall affect
any subsequent default or impair any right consequent thereon. The
provisions of this Section 5.13 shall be in lieu of Section 316(a)(1)(B) of
the Trust Indenture Act, and such Section 316(a)(1)(B) of the Trust Indenture
Act is hereby expressly excluded from this Subordinated Indenture and the
Debentures, as permitted by the Trust Indenture Act.
SECTION 5.14 UNDERTAKING FOR COSTS. All parties to this
Subordinated Indenture agree, and each Holder of any Debenture by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Subordinated Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount
of the Outstanding Debentures, or to any suit instituted by any Holder for
the enforcement of the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on the Debentures on or after
the Maturity of the Debentures or to convert a Debenture in accordance with
Article 13. The provisions of this Section 5.14 shall be in lieu of Section
315(e) of the Trust Indenture Act, and
43
such Section 315(e) of the Trust Indenture Act is hereby expressly excluded
from this Subordinated Indenture and the Debentures, as permitted by the
Trust Indenture Act.
SECTION 5.15 WAIVER OF USURY, STAY, OR EXTENSION LAWS. The
Company covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Subordinated 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 6
THE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of a Debenture Event of Default,
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Subordinated Indenture, and no implied covenants or obligations
shall be read into this Subordinated Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee
and conforming to the requirements of this Subordinated
Indenture, but in the case of any such certificates or opinions
which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Subordinated Indenture.
(b) In case a Debenture Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Subordinated Indenture, and use the same degree
of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his own
affairs.
(c) No provision of this Subordinated Indenture shall be
construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct except that:
(i) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
44
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of Holders pursuant to Section
5.12 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under
this Subordinated Indenture.
(d) No provision of this Subordinated 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 there
shall be reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably
assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Subordinated 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 6.2 NOTICE OF DEFAULTS. Within 90 days after
actual knowledge by a Responsible Officer of the Trustee of the occurrence of
any default hereunder, the Trustee shall transmit by mail to all Holders of
Debentures, as their names and addresses appear in the Securities Register,
notice of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; PROVIDED, HOWEVER, that, except in the case
of a default in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on any Debenture, the Trustee
shall be fully protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of Debentures;
PROVIDED, FURTHER, that, except in the case of any default of the character
specified in Section 5.1(c), no such notice to Holders of the Debentures
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, a Debenture Event of
Default.
SECTION 6.3 CERTAIN RIGHTS OF TRUSTEE. Subject to the
provisions of Section 6.1:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, Debenture or other paper
or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request 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;
45
(c) whenever in the administration of this Subordinated
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, conclusively
rely upon an Officers' Certificate and an Opinion of Counsel;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Subordinated Indenture at
the request or direction of any of the Holders pursuant to this
Subordinated 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, indenture, Debenture or other paper or document,
but the Trustee in its discretion may make such inquiry or
investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such 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, attorneys, custodians or nominees and the Trustee
shall not be responsible for any misconduct or negligence on any part
of any agent, custodian, nominee or attorney appointed with due care
by it hereunder; and
(h) in the event that the Trustee is also acting as a Paying
Agent, Authenticating Agent, Conversion Agent, and/or Securities
Registrar hereunder, the rights and protections afforded to the
Trustee pursuant to this Article 6 shall also be afforded to such
Paying Agent, Authenticating Agent, Conversion Agent, and/or
Securities Registrar.
SECTION 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
DEBENTURES. The recitals contained herein and in the Debentures, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of
this Subordinated Indenture or of the Debentures. The Trustee shall not be
accountable for the use or application by the Company of the Debentures or
the proceeds thereof.
SECTION 6.5 MAY HOLD DEBENTURES. The Trustee, any Paying
Agent, Securities Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of
Debentures and, subject to Sections 6.8 and 6.13, may otherwise deal with
46
the Company and its Affiliates with the same rights it would have if it were
not Trustee, Paying Agent, Securities Registrar or such other agent.
SECTION 6.6 MONEY HELD IN TRUST. Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no liability of interest
on any money received by it hereunder except as otherwise agreed with the
Company.
SECTION 6.7 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 in such amounts
as the Company and the Trustee shall agree from time to time (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) 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 Subordinated
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel); and
(c) to indemnify the Trustee and its officers, directors and
employees for, and to hold it harmless against, any loss, liability or
expense (including the reasonable compensation and the expenses and
disbursements of its agents and counsel) incurred without negligence
or bad faith, arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties
hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. This
Indemnification shall survive the termination of this Agreement or the
earlier resignation or removal of the Trustee.
To secure the Company's payment obligations in this Section, the
Company and the Holders agree that the Trustee shall have a lien prior to the
Debentures on all money or property held or collected by the Trustee except
assets held in trust to pay principal and premium, if any, or interest on
particular Debentures pursuant to Section 4.1(a)(ii)(B), or pursuant to any
redemption pursuant to Article 11 hereof if monies have been deposited for
such redemption and notice has been given and the Redemption Date has passed.
Such lien shall survive the satisfaction and discharge of this Subordinated
Indenture or the earlier resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after a Debenture
Event of Default specified in Section 5.1(e) or (f) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Reform Act of 1978 or a successor statute.
SECTION 6.8 DISQUALIFICATION; CONFLICTING INTERESTS. The
Trustee shall be subject to the provisions of Section 310(b) of the Trust
Indenture Act. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the second to last paragraph
47
of Section 310(b) of the Trustee Indenture Act. The Declaration and the
Guarantee shall be deemed to be specifically described in this Subordinated
Indenture for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
SECTION 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There
shall at all times be a Trustee hereunder which shall be:
(a) a corporation organized and doing business under the laws
of the United States of America or of any State, Territory or the
District of Columbia, authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority, or
(b) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as
Trustee pursuant to a rule, regulation or order of the Commission,
authorized under such laws to exercise corporate trust powers, and
subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent
to supervision or examination applicable to United States
institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then, to 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. 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. Neither the Company nor any
Person directly or indirectly controlling, controlled by or under common
control with the Company shall serve as Trustee hereunder.
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee under Section 6.11.
(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 shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding
Debentures, delivered to the Trustee and to the Company.
48
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.8
after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Debenture for at least six
months, or
(ii) the Trustee shall cease to be eligible under
Section 6.9 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 as bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of 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 Board Resolution may remove the Trustee, or (B)
subject to Section 5.14, any Holder who has been a bona fide
Holder of a Debenture for at least six months may, on behalf of
himself and all other similarly situated Holders, 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 with respect to the Debentures, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to
the Debentures shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Debentures delivered to the
Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the
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
hereinafter provided, any Holder who has been a bona fide Holder of a
Debenture for at least six months may, subject to Section 5.14, 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 by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of the Debentures as their name and
addresses appear in the Securities Register. Each notice shall
include the name of the successor Trustee and the address of its
Corporate Trust Office.
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such
successor
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Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring
Trustee, but, on the written request of the Company or the Successor
Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor,
Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) 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 rights, power
and trusts referred to in paragraph (a) of this Section.
(c) 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 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, PROVIDED such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any
Debentures shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Debentures so authenticated, and in case any Debentures shall not have been
authenticated, any successor to the Trustee may authenticate such Debentures
either in the name of any predecessor Trustee or in the name of such
successor Trustee, and in all cases the certificate of authentication shall
have the full force which it is provided anywhere in the Debentures or in
this Subordinated Indenture that the certificate of the Trustee shall have.
SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY. If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Debentures), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT. The
Trustee may appoint an Authenticating Agent or Agents, as described and with
the powers and obligations conferred by this Section 6.14 ("AUTHENTICATING
AGENT OR AGENTS"), with respect to the Debentures which shall be authorized
to act on behalf of the Trustee to authenticate the Debentures issued upon
exchange, registration of transfer or partial redemption thereof, and
Debentures so authenticated shall be entitled to the benefits of this
Subordinated Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Wherever reference is made in
this Subordinated Indenture to the authentication and delivery of Debentures
by the Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized
and doing business
50
under the laws of the United States of America, or of any State, Territory or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of an Authenticating Agent shall be the
successor Authenticating Agent hereunder, PROVIDED such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 1.6 to all
Holders of the Debentures. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provision of this Section.
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 6.7.
If an appointment is made pursuant to this Section, the Debentures may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Debentures referred to in the within mentioned
Subordinated Indenture.
---------------------------
---------------------------
51
As Trustee
By:
---------------------------
As Authenticating Agent
By:
---------------------------
Authorized Officer
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 COMPANY TO FURNISH NAMES AND ADDRESSES OF
HOLDERS. The Company will furnish or cause to be furnished to the Trustee
(unless the Trustee is acting as the Securities Registrar):
(a) quarterly at least five Business Days before each
Interest Payment Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of
each such 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.
SECTION 7.2 PRESERVATION OF INFORMATION: COMMUNICATIONS TO
HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in
Section 7.1 and the names and addresses of Holders received by the
Trustee in its capacity as Securities Registrar. The Trustee may
destroy any list furnished to it as provided in Section 7.1 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 Subordinated Indenture or
under the Debentures, and the corresponding rights and privileges of
the Trustee, shall be as provided in the Trust Indenture Act.
(c) Every Holder of Debentures, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of information as to the names
and addresses of the Holders made pursuant to the Trust Indenture Act.
SECTION 7.3 REPORTS BY TRUSTEE.
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(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Subordinated
Indenture as may be required pursuant to the Trust Indenture Act, at
the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated
intervals of not more than 12 months shall be transmitted within 60
days after May 15 in each calendar year, commencing with May 15, 1999.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange or self regulatory organization of which the Trustee has
received notice by the Company upon which the Debentures are listed
and also with the Commission. The Company will notify the Trustee in
writing whenever the Debentures are listed on any stock exchange or
self-regulatory organization.
SECTION 7.4 REPORTS BY COMPANY. The Company shall file
with the Trustee and with 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 in the Trust Indenture Act, PROVIDED that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 shall be filed with the Trustee within 15 days after the same is
required to be filed with the Commission. Notwithstanding that the Company
may not be required to remain subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, the Company shall
continue to file with the Commission and provide the Trustee and Holders with
the annual reports and the information, documents and other reports which are
specified in Sections 13 and 15(d) of the Securities Exchange Act of 1934.
The Company also shall comply with the other provisions of Trust Indenture
Act Section 314(a).
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 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 no Person shall consolidate with or merge into
the Company or convey, transfer or lease its properties and assets
substantially as an entirety to 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
acquires by conveyance or transfer, or which leases, the properties
and assets of the Company substantially as an entirety shall be a
Person organized and existing under the laws of the United States of
America or any State 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,
53
if any) and interest (including any Additional Interest) on all the
Debentures and the performance of every covenant of this Subordinated
Indenture on the part of the Company to be performed or observed and
shall have provided for conversion rights in accordance with Article
13;
(b) immediately after giving effect to such transaction, no
Debenture Event of Default, and no event which, after notice or lapse
of time, or both, would become a Debenture Event of Default, shall
have happened and be continuing;
(c) such consolidation, merger, conveyance, transfer or lease
is permitted under the Declaration and Guarantee and does not give
rise to any breach or violation of the Declaration or Guarantee; 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 any such
supplemental indenture complies with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with, and the Trustee, subject to Section 6.1, may
rely upon such Officers' Certificate and Opinion of Counsel as
conclusive evidence that such transaction complies with this
Section 8.1.
SECTION 8.2 SUCCESSOR CORPORATION SUBSTITUTED. Upon any
consolidation or merger by the Company with or into any other corporation, or
any conveyance, transfer or lease by the Company of its properties and assets
substantially as an entirety to any Person in accordance with Section 8.1,
the successor corporation 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 Subordinated Indenture with the same effect
as if such successor corporation had been named as the Company herein. In
the event of any such conveyance, transfer or lease the Company shall be
discharged from all obligations and covenants under the Subordinated
Indenture and the Debentures and may be dissolved and liquidated.
Such successor corporation may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Debentures issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee, and, upon the Company Order of such
successor corporation instead of the Company and subject to all the terms,
conditions and limitations in this Subordinated Indenture prescribed, the
Trustee shall authenticate and shall deliver any Debentures which previously
shall have been signed and delivered by the officers of the Company to the
Trustee for authentication pursuant to a Company Order and any Debentures
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee on its behalf for the purpose pursuant to such
provisions. All the Debentures so issued shall in all respects have the same
legal rank and benefit under this Subordinated Indenture as the Debentures
theretofore or thereafter issued in accordance with the terms of this
Subordinated Indenture as though all of such Debentures had been issued at
the date of the execution hereof.
54
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form may be made in the Debentures thereafter
to be issued as may be appropriate.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS. Without the consent of or notice to any Holder, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Debentures contained;
(b) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee or to surrender any right or power
herein conferred upon the Company;
(c) to add to covenants of the Company for the benefit of the
Holders of the Debentures or to surrender any right or power herein
conferred upon the Company;
(d) to make provision with respect to the conversion rights
of Holders pursuant to the requirements of Article 13;
(e) to add any additional Debenture Events of Default;
(f) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Subordinated Indenture, PROVIDED that
such action pursuant to this clause shall not materially adversely
affect the interest of the Holders of Debentures and for so long as
any of the Preferred Securities shall remain outstanding, the holders
of such Preferred Securities;
(g) to evidence and provide for the acceptance of appointment
hereunder by successor Trustee and to add to or change any of the
provisions of this Subordinated Indenture as shall be necessary to
provide for or facilitate the administration of the Trust hereunder by
more than one Trustee, pursuant to the requirements of Section 6.11(b);
(h) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Subordinated Indenture
under the Trust Indenture Act; or
(i) to make provision for transfer procedures, certification,
book-entry provisions, the form of restricted securities legends, if
any, to be placed on Debentures, and all other matters required
pursuant to Section 3.5 or otherwise necessary, desirable or
appropriate in
55
connection with the issuance of Debentures to holders of Preferred
Securities in the event of a distribution of Debentures by the Trust if
a Special Event occurs and is continuing.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS. With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debentures, 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 Subordinated
Indenture or of modifying in any manner the rights of the Holders of the
Debentures under this Subordinated Indenture; PROVIDED, HOWEVER, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Debenture affected thereby,
(a) except to the extent permitted by Section 3.11 with
respect to the extension of the interest payment period of the
Debentures, change the Stated Maturity of the principal of, or any
installment of interest (including any Additional Interest) on, the
Debentures, or reduce the principal amount thereof or the rate of
interest thereon or reduce any premium payable upon the redemption
thereof, or change the place of payment where, or the coin or currency
in which, any Debenture or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Maturity thereof (or, in the case of redemption, on or after
the date fixed for redemption thereof);
(b) adversely affect any right to convert or exchange any
Debenture or modify the provisions of this Subordinated Indenture with
respect to the subordination of the Debentures in a manner adverse to
such Holder;
(c) reduce the percentage in principal amount of the
Outstanding Debentures, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Subordinated Indenture or certain defaults hereunder and their
consequences) provided for in this Subordinated Indenture;
(d) modify any of the provisions of this Section, Section
4.1, Section 5.8, Section 5.13 or Section 10.6, except to increase any
such percentage or to provide that certain other provisions of this
Subordinated Indenture cannot be modified or waived without the
consent of the Holder of each Debenture affected thereby, or the
consent of the holders of all the Preferred Securities as the case may
be; or
(e) modify the provisions in Article 12 of this Subordinated
Indenture with respect to the subordination of Outstanding Debentures
in a manner adverse to the Holders thereof;
PROVIDED that, so long as any Preferred Securities remain outstanding (i) no
such modification may be made that adversely affects the holders of such
Preferred Securities in any material respect, no termination of this
Subordinated Indenture shall occur, and no waiver of any Debenture Event of
Default or compliance with any covenant under this Subordinated Indenture
shall be effective, without the prior consent of the holders of at least a
majority of the aggregate liquidation amount
56
of such Preferred Securities then outstanding unless and until the principal
(and premium, if any) of the Debentures and all accrued and unpaid interest
(including any Additional Interest) thereon have been paid in full and (ii)
where a consent under this Subordinated Indenture would require the consent
of each Holder of Debentures, no such consent will be given by the Property
Trustee without the prior consent of each holder of the Preferred Securities.
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 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES. In
executing or accepting the additional trusts created by any supplemental
indenture permitted by this Article or the modifications thereby of the trust
created by this Subordinated Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in
conclusively relying upon, an Officers' Certificate and an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Subordinated Indenture, and that all conditions precedent
have been complied with. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Subordinated Indenture or otherwise.
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the
execution of any supplemental indenture under this Article, this Subordinated
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Subordinated Indenture for all purposes,
and every Holder of the Debentures theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 9.6 REFERENCE IN DEBENTURES TO SUPPLEMENTAL
INDENTURES. Debentures authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Debentures so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Debentures presented to the Trustee.
ARTICLE 10
COVENANTS
SECTION 10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of the Debentures that it
will duly and punctually pay the principal of (and
57
premium, if any) and interest (including Additional Interest) on the
Debentures in accordance with the terms of the Debentures and this
Subordinated Indenture.
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY. The Company
will maintain in the United States, an office or agency where Debentures may
be presented or surrendered for payment and an office or agency where
Debentures may be surrendered for transfer or exchange and where notices and
demands to or upon the Company in respect of the Debentures and this
Subordinated Indenture may be served. The Company initially appoints the
Trustee, acting through its Corporate Trust Office, as its agent for said
purposes. The Company will give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the
Company shall fail to maintain such 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 Debentures may be presented or surrendered for
any or all of 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 the United States for such purposes. The Company will give prompt
written notice to the Trustee of any such designation and any change in the
location of any such office or agency.
SECTION 10.3 MONEY FOR DEBENTURE PAYMENTS TO BE HELD IN
TRUST. If the Company shall at any time act as its own Paying Agent with
respect to the Debentures, it will, on or before each due date of the
principal of (or premium, if any) or interest on any of the Debentures,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (or 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
failure so to act. Whenever the Company shall have one or more Paying
Agents, it will, on or before each due date of the principal of or interest
on the Debentures, deposit with a Paying Agent a sum sufficient to pay the
principal (or premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal and
premium (if any) or interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its 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) hold all sums held by it for the payment of the principal
of (or premium, if any) or interest on Debentures in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or
any other obligor upon the Debentures) in the making of any payment of
principal (or premium, if any) or interest;
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(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent; and
(d) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Subordinated 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 the
Company or 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 (or premium, if
any) or interest on any Debenture and remaining unclaimed for two years after
such principal (or premium, if any) or interest has become due and payable
shall (unless otherwise required by mandatory provision of applicable escheat
or abandoned or unclaimed property law) be paid on Company Request, after all
payments owing the Trustee have been paid, to the Company, or (if then held
by the Company) shall (unless otherwise required by mandatory provision of
applicable escheat or abandoned or unclaimed property law) be discharged from
such trust; and the Holder of such Debenture 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.
SECTION 10.4 PAYMENT OF TAXES AND OTHER CLAIMS. The Company
will pay or discharge or cause to be paid or discharged, before the same
shall become delinquent, (a) all taxes, assessments and governmental charges
levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (b) all lawful
claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Company or any Subsidiary; PROVIDED,
HOWEVER, that the Company shall not be required to pay or discharge or cause
to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 10.5 STATEMENT AS TO COMPLIANCE. The Company shall
deliver to the Trustee, within 120 days after the end of each calendar year
of the Company an Officers' Certificate (signed by at least one of the
officers referred to in Section 314(a)(4) of the Trust Indenture Act)
covering the preceding calendar year, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the
performance, observance or fulfillment of or compliance with any of the
terms, provisions, covenants and conditions of this Subordinated Indenture,
and if the Company shall be
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in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge. For the purpose of this Section 10.5,
compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Subordinated
Indenture.
SECTION 10.6 WAIVER OF CERTAIN COVENANTS. The Company may
omit in any particular instance to comply with any covenant or condition set
forth in this Article 10, if before or after the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding
Debentures, 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 in respect of any such covenant or
condition shall remain in full force and effect.
SECTION 10.7 ADDITIONAL SUMS. In the event that (a) the
Property Trustee is the Holder of all of the Outstanding Debentures, (b) a
Tax Event in respect of the Trust shall have occurred and be continuing and
(c) the Company shall not have (i) redeemed the Debentures pursuant to
Section 11.7 or 11.8 or (ii) dissolved the Trust pursuant to Section 9.2(b)
of the Declaration, the Company shall pay to the Trust (and its permitted
successors or assigns under the Declaration) for so long as the Trust (or its
permitted successor or assignee) is the registered Holder of the Debentures,
such additional amounts as may be necessary in order that the amount of
distributions (including any Additional Amounts (as defined in the
Declaration)) then due and payable by the Trust on the Preferred Securities
and Common Securities that at any time remain outstanding in accord with the
terms thereof shall not be reduced as a result of any Additional Taxes (the
"ADDITIONAL SUMS"). Whenever in this Subordinated Indenture or the
Debentures there is a reference in any context to the payment of principal of
(or premium, if any) or interest on the Debentures, such mention shall be
deemed to include mention of the payments of the Additional Sums provided for
in this paragraph to the extent that, in such context, Additional Sums are,
were or would be payable in respect thereof pursuant to the provisions of
this paragraph and express mention of the payment of Additional Sums (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Sums in those provisions hereof where such express mention is not
made, PROVIDED, HOWEVER, that the extension of an interest payment period
pursuant to Section 3.11 or the Debentures shall not extend the payment of
any Additional Sums that may be due and payable during such interest payment
period.
SECTION 10.8 ADDITIONAL COVENANTS. The Company covenants
and agrees with each Holder of Debentures that so long as the Debentures are
outstanding, if (i) there shall have occurred any event of which the Company
has actual knowledge that (A) with the giving of notice or the lapse of time
or both, would constitute a Debenture Event of Default hereunder and (B) in
respect of which the Company shall not have taken reasonable steps to cure,
(ii) the Company shall be in default with respect to its payment of any
obligations under the Guarantee or (iii) the Company shall have given notice
of its selection of an Extension Period as provided herein and shall not have
rescinded such notice, or such period, or any extension thereof, shall be
continuing, then the Company shall not, and shall cause any Subsidiary not
to, (i) declare or pay dividends on, make distributions with respect to, or
redeem, purchase or acquire, or make a liquidation payment with respect to
any of its Capital Stock (except for (x) dividends or distributions in shares
of, or options, warrants or rights to subscribe for or purchase shares of its
Capital Stock and conversions or
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exchanges of Common Stock of one class for Common Stock of another class and
(y) redemptions or purchases of any rights pursuant to a rights agreement and
the issuance of Capital Stock pursuant to such rights) or (ii) make any
payments of principal, interest or premium, if any, on or repay or repurchase
or redeem any debt securities (including guarantees of indebtedness for money
borrowed) of the Company that rank PARI PASSU with or junior to the
Debentures (other than (u) any redemption, liquidation, interest, principal
or guarantee payment by the Company where the payment is made by way of
securities (including Capital Stock) that rank PARI PASSU with or junior to
the securities on which such redemption, interest, principal or guarantee
payment is being made, (v) payments under the Guarantee (as defined in the
Declaration) or the Common Securities Guarantee (as defined in the
Declaration), (w) purchases of Common Stock related to the issuance of Common
Stock under any of the Company's benefit plans for its directors, officers or
employees, (x) as a result of a reclassification of the Company's Capital
Stock or the exchange or conversion of one series or class of the Company's
Capital Stock for another series or class of the Company's Capital Stock, (y)
the purchase of fractional interests in shares of the Company's Capital Stock
pursuant to the conversion or exchange provisions of such Capital Stock or
the security being converted or exchanged and (z) redemptions or purchases of
any rights pursuant to a rights agreement and the issuance of Capital Stock
pursuant to such rights).
The Company also covenants with each Holder of the Debentures: (i)
that for so long as Preferred Securities are outstanding not to convert the
Debentures except pursuant to a notice of conversion delivered to the
Conversion Agent by a holder of Trust Securities; (ii) to maintain directly
or indirectly 100% ownership of the Common Securities of the Trust; PROVIDED,
HOWEVER, that any permitted successor of the Company hereunder may succeed to
the Company's ownership of such Common Securities; (iii) not to voluntarily
terminate, wind-up, liquidate or dissolve the Trust, except (a) in connection
with a distribution of the Debentures to the holders of Preferred Securities
in dissolution of the Trust, (b) in connection with the redemption of all
Trust Securities or (c) in connection with certain mergers, consolidations
or amalgamations permitted by the Declaration; (iv) to use commercially
reasonable efforts, consistent with the terms and provisions of the
Declaration to cause the Trust to remain a grantor trust and not as an
association taxable as a corporation for United States Federal income tax
purposes; (v) to deliver shares of Common Stock upon an election by a holder
of the Debentures to convert such Debentures into Common Stock; and (vi) to
honor all obligations relating to the conversion or exchange of the Trust
Securities into or for Common Stock.
SECTION 10.9 PAYMENT OF EXPENSES OF THE TRUST. In
connection with the offering, sale and issuance of the Debentures to the
Property Trustee and in connection with the sale of the Preferred Securities
by the Trust, the Company shall:
(a) pay for all costs, fees and expenses relating to the
offering, sale and issuance of the Securities (as defined in the
Purchase Agreement), including commissions, discounts and expenses
payable pursuant to the Purchase Agreement and compensation of the
Trustee under the Subordinated Indenture in accordance with the
provisions of Section 6.7 of the Subordinated Indenture;
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(b) be responsible for and pay for all debts and obligations
(other than with respect to the Preferred Securities) of the Trust,
pay for all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the
Trust, the offering, sale and issuance of the Preferred Securities
(including commissions, discounts and expenses in connection
therewith), the fees and expenses of the Property Trustee and the
Delaware Trustee, the costs and expenses relating to the operation of
the Trust, including without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses
for printing and engraving and computing or accounting equipment,
paying agent(s), registrar(s), transfer agent(s), duplicating, travel
and telephone and other telecommunications expenses and costs and
expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets); and
(c) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs
and expenses with respect to such taxes of the Trust.
ARTICLE 11
REDEMPTION OR EXCHANGE OF DEBENTURES
SECTION 11.1 ELECTION TO REDEEM; NOTICE TO TRUSTEE. The
election of the Company to redeem any Debentures shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of
the Company, the Company shall, not less than 45 days prior to the date fixed
for redemption (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such date and of the principal
amount of Debentures to be redeemed.
SECTION 11.2 SELECTION OF DEBENTURES TO BE REDEEMED. If
less than all the Debentures are to be redeemed, the particular Debentures to
be redeemed shall be selected not more than 45 days prior to the Redemption
Date by the Trustee from the Outstanding Debentures not previously called for
redemption, by lot or by such other method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of a
portion of the principal amount of the Debentures Outstanding, PROVIDED that
the unredeemed portion of the principal amount of the Debentures be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for the Debentures.
The Trustee shall promptly notify the Company in writing of the
Debentures selected for partial redemption and the principal amount thereof
to be redeemed. For all purposes of this Subordinated Indenture, unless the
context otherwise requires, all provisions relating to the redemption of
Debentures shall relate, in the case of any Debenture redeemed or to be
redeemed only in part, to the portion of the principal amount of such
Debenture which has been or is to be redeemed. If the Company shall so
direct, Debentures registered in the name of the Company, any Affiliate or
any Subsidiary thereof shall not be included in the Debentures selected for
redemption.
SECTION 11.3 NOTICE OF REDEMPTION. Notice of redemption
shall be given by first-class mail, postage prepaid, mailed not later than
the thirtieth (30th) day, and not earlier than the
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sixtieth (60th) day, prior to the date fixed for redemption, to each Holder
of Debentures to be redeemed, at the address of such Holder as it appears in
the Securities Register.
With respect to Debentures to be redeemed, each notice of redemption
shall state:
(a) the Redemption Date;
(b) the redemption price at which the Debentures are to be
redeemed (the "REDEMPTION PRICE");
(c) if less than all Outstanding Debentures are to be
redeemed, the identification (and, in the case of partial redemption,
the respective principal amounts) of the particular Debentures to be
redeemed (including, if relevant, the CUSIP or ISIN number);
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debenture or portion thereof,
and that upon deposit with the Paying Agent interest thereon, if any,
shall cease to accrue on and after the Redemption Date;
(e) the place or places where the Debentures are to be
surrendered for payment of the redemption price at which the
Debentures are to be redeemed;
(f) that a Holder of Debentures who desires to convert
Debentures called for redemption must satisfy the requirements for
conversion contained in the Debentures, the then existing Conversion
Price, and the date and time when the option to convert shall expire;
and
(g) the record date for the determination of holders
entitled to receive payment of the Redemption Price, as provided in
Section 11.5.
Notice of redemption of Debentures to be redeemed at the election of
the Company shall be given by the Company or, at the Company's written
request, by the Trustee in the name and at the expense of the Company and
shall be irrevocable. The notice if mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives such notice. In any case, a failure to give such notice by
mail or any defect in the notice to the Holder of any Debenture designated
for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debenture.
SECTION 11.4 DEPOSIT OF REDEMPTION PRICE. Prior to 12:00
noon, New York City time, on the Redemption Date specified in the notice of
redemption given as provided in Section 11.3, the Company will deposit with
the Trustee or with one or more Paying Agents (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided in Section
4.2) an amount of money sufficient to redeem on the Redemption Date all the
Debentures so called for redemption at the applicable Redemption Price.
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If any Debenture called for redemption has been converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held
in trust for the redemption of such Debenture shall (subject to any right of
the Holder of such Debenture or any Predecessor Debenture to receive interest
as provided in the last paragraph of Section 3.7) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from
such trust.
SECTION 11.5 DEBENTURES PAYABLE ON REDEMPTION DATE. If
notice of redemption has been given as provided in Section 11.3, the
Debentures so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, including any accrued
interest (and any Additional Interest) thereon, and from and after such date
(unless the Company shall default in the payment of the Redemption Price or
any accrued interest on (including any Additional Interest)) such Debentures
shall cease to bear interest. Upon surrender of any such Debenture for
redemption in accordance with said notice, such Debenture shall be paid by
the Company at the Redemption Price, including any accrued interest (and any
Additional Interest) to the Redemption Date, PROVIDED, HOWEVER, that
installments of interest on Debentures whose Stated Maturity is on or prior
to the Redemption Date shall be payable to the Holders of such Debentures, or
one of more Predecessor Debentures, registered as such at the close of
business on the relevant Regular Record Dates or Special Record Dates, as the
case may be, according to their terms and the provisions of Section 3.7. In
the event that any date on which any Redemption Price is payable is not a
Business Day, then payment of the Redemption Price payable on such date will
be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, with the same force and
effect as if made on such date. Payment of the Redemption Price shall be
made to the Holders of such Debentures as they appear on the Securities
Register for the Debentures on the relevant record date, which shall be the
date which is the fifteenth (15th) day (whether or not a Business Day)
preceding such Redemption Date.
If any Debenture called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor
in the Debenture.
SECTION 11.6 DEBENTURES REDEEMED IN PART. In the event of
any redemption in part, the Company shall not be required to (i) issue,
register the transfer of or exchange any Debenture during a period beginning
at 9:00 a.m. (New York City time) 15 Business Days before any selection for
redemption of Debentures and ending at 5:00 p.m. (Chicago time) on the
earliest date in which the relevant notice of redemption is deemed to have
been given to all Holders of Debentures to be so redeemed and (ii) register
the transfer of or exchange any Debentures so selected for redemption, in
whole or in part, except for the unredeemed portion of any Debentures being
redeemed in part.
Any Debenture which is to be redeemed only in part shall be
surrendered at the place of payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and make available for
delivery to the Holder of such Debenture without
64
service charge, a new Debenture or Debentures, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Debenture so
surrendered. Each Debenture shall be subject to partial redemption only in
the amount of $50 or integral multiples thereof.
The Debentures are not entitled to the benefit of any sinking or like
fund.
SECTION 11.7 MANDATORY REDEMPTION. Upon (i) repayment at
maturity or (ii) as a result of acceleration upon the occurrence and
continuation of a Debenture Event of Default, the Company shall redeem the
Outstanding Debentures, in whole but not in part, at a redemption price equal
to 100% of the principal amount of such Debentures plus any accrued and
unpaid interest, including any Additional Interest, to the date fixed for
redemption.
SECTION 11.8 OPTIONAL REDEMPTION. (a) Except as set forth
below, on and after June 30, 2001 and subject to the next succeeding
sentence, the Company shall have the right, at any time and from time to
time, to redeem the Debentures, in whole or in part, upon notice given as set
forth in Section 11.3 during the twelve month periods beginning on June 30 in
each of the following years at the indicated Redemption Price (expressed as a
percentage of the principal amount of the Debentures being redeemed),
together with any accrued but unpaid interest on the portion being redeemed:
Redemption Price Redemption Price
Year (%) of principal amount) Year (%) of principal amount)
---- ------------------------ ----- ------------------------
2001 104.725% 2005 102.025%
2002 104.050% 2006 101.350%
2003 103.375% 2007 100.675%
2004 102.700% 2008 100.000%
The Company may not redeem the Debentures in part unless all accrued
and unpaid interest has been paid in full on all outstanding Debentures for
all quarterly interest periods terminating on or prior to the giving of
notice of the Redemption Date.
(b) If a Tax Event shall occur and be continuing, the Company
shall have the right, upon not less than 30 nor more than 60 days' notice, to
redeem the Debentures in whole or in part, for cash upon the later of (i) 90
days following the occurrence of such Tax Event or (ii) June 30, 2001, at a
Redemption Price equal to the principal amount of such Debentures plus any
accrued and unpaid interest, including Additional Interest, to the date fixed
for such redemption.
(c) If at any time prior to the Conversion Expiration Date,
less than ten percent (10%) in principal amount of the Debentures originally
issued by the Company remain outstanding, such Debentures shall be
redeemable, at the option of the Company, exercisable at any time in whole
65
but not in part, at a Redemption Price equal to the aggregate unpaid
principal amount thereof, and all accrued and unpaid interest (including
Additional Interest and Additional Sums, if any) due thereon to the date
fixed for redemption.
SECTION 11.9 EXCHANGE OF TRUST SECURITIES FOR DEBENTURES.
(a) At any time, the Company shall have the right to
dissolve the Trust and cause the Debentures to be distributed to the
holders of the Preferred Securities in dissolution of the Trust after
satisfaction of liabilities to creditors of the Trust as provided by
applicable law.
(b) If a Special Event in respect of the Trust shall occur
and be continuing, the Company shall give the Property Trustee notice
of the same. If a Special Event in respect of the Trust shall occur
and be continuing, the Declaration requires the Property Trustee to
direct the Conversion Agent (as defined in the Declaration) to
exchange all outstanding Trust Securities for the Debentures having a
principal amount equal to the aggregate liquidation amount of the
Trust Securities to be exchanged with accrued interest in an amount
equal to any unpaid distributions (including any Additional Amounts)
on the Trust Securities PROVIDED that, in the case of a Tax Event that
shall have occurred and be continuing, the Company shall have the
right to direct the Property Trustee that less than all, or none, of
the Trust Securities be so exchanged (i) if and for so long as the
Company shall have elected to pay any Additional Sums such that the
amounts received by holders of the Trust Securities that remain
outstanding are not reduced as a result of such Tax Event, and shall
not have revoked any such election or failed to make such payments or
(ii) if the Company shall instead elect to redeem the Debentures, in
whole or in part, in the manner set forth in Section 11.8.
ARTICLE 12
SUBORDINATION OF DEBENTURES
SECTION 12.1 DEBENTURES SUBORDINATE TO SENIOR DEBT. The
Company covenants and agrees, and each Holder of a Debenture, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the payment of the
principal of (and premium, if any) and interest (including any Additional
Interest) on each and all of the Debentures are hereby expressly made junior
and subordinate and subject in right of payment to the prior payment in full
of all amounts then due and payable in respect of all Senior Debt (whether
outstanding on the date hereof or hereafter created, incurred, assumed or
guaranteed), and that the subordination is for the benefit of the holders of
Senior Debt. Notwithstanding the foregoing, any and all amounts payable to
the Trustee pursuant to Section 6.7 are not subject to the provisions of
Article 12.
SECTION 12.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any payment or distribution of assets of the Company to creditors upon
any liquidation, dissolution, winding up, reorganization, assignment for the
benefit of creditors, marshaling of assets or any bankruptcy, insolvency,
debt restructuring or similar proceeding in connection with any insolvency or
66
bankruptcy proceeding of the Company (each such event, if any, herein sometimes
referred to as a "PROCEEDING"), then the holders of Senior Debt shall be
entitled to receive payment in full of principal of (and premium, if any) and
interest (including interest after the commencement of any such proceeding at
the rate specified in the applicable Senior Debt), if any, on such Senior Debt,
or provision shall be made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt, before the
Holders of the Debentures, are entitled to receive or retain any payment or
distribution of any kind or character, whether in cash, property or Debentures
(including any payment or distribution which may be payable or deliverable by
reason of the payment of any other Debt of the Company (including the
Debentures) subordinated to the payment of the Debentures, but not including any
payments that are made from funds on deposit pursuant to Section 4.1(a)(ii)(B)
or funds on deposit for the redemption of Debentures for which notice of
Redemption has been given and the applicable Redemption Date has passed, such
payment or distribution being hereinafter referred to as a "JUNIOR SUBORDINATED
PAYMENT"), in respect of principal of (or premium, if any) or interest
(including any Additional Interest, if any) on the Debentures or on account of
the purchase or other acquisition of Debentures by the Company or any Subsidiary
and to that end the holders of Senior Debt shall be entitled to receive, for
application to the payment thereof any payment or distribution of any kind of
character, whether in cash, property or Debentures, including any Junior
Subordinated Payment, which may be payable or deliverable in respect of the
Debentures in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Debenture shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or Debentures, including any Junior Subordinated
Payment, before all Senior Debt is paid in full or payment thereof is provided
for in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, and if such fact shall, at or prior to the time of such
payment or distribution, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment or distribution shall be
paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making payment
or distribution of assets of the Company for application to the payment of all
Senior Debt remaining unpaid, to the extent necessary to pay all Senior Debt in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
For the purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include shares of stock of the Company, as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment which securities are subordinated in
right of payment to all then outstanding Senior Debt to substantially the same
extent as the Debentures are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the sale of
all or substantially all of its properties and assets as an entirety to another
Person or the liquidation or dissolution of the Company following the sale of
all or substantially all of its properties and assets as an entirety to another
Person upon the terms and conditions set forth in Article 8 shall not be deemed
a Proceeding for the purposes of this Section, if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by sale
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such properties and assets as an entirety, as the case may be, shall, as
a part of such consolidation, merger, or sale comply with the conditions set
forth in Article 8.
SECTION 12.3 PRIOR PAYMENT TO SENIOR DEBT UPON ACCELERATION
OF DEBENTURES. In the event that the Debentures are declared due and payable
before their Maturity, then and in such event the holders of the Senior Debt
outstanding at the time the Debentures so become due and payable shall be
entitled to receive payment in full of all amounts due on or in respect of
such Senior Debt (including any amounts due upon acceleration), or provision
shall be made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, before the Holders of the
Debentures are entitled to receive any payment or distribution of any kind or
character, whether in cash, properties or securities (including any Junior
Subordinated Payment) by the Company on account of the principal of (or
premium, if any) or interest (including any Additional Interest) on the
Debentures or on account of the purchase or other acquisition of Debentures
by the Company or any Subsidiary.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of the Debentures prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known, as set forth in Section 12.10, to a
Responsible Officer of the Trustee or, as the case may be, such Holder, then and
in such event such payment shall be paid over and delivered forthwith to the
Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 12.2 would be applicable.
SECTION 12.4 NO PAYMENT WHEN SENIOR DEBT IN DEFAULT.
(a) In the event and during the continuation of any default
in the payment of principal of (or premium, if any) or interest on any
Senior Debt, or in the event that any event of default with respect to
any Senior Debt shall have occurred and be continuing and shall have
resulted in such Senior Debt becoming or being declared due and
payable prior to the date on which it would otherwise have become due
and payable, unless and until such event of default shall have been
cured or waived or shall have ceased to exist and such acceleration
shall have been rescinded or annulled, or (b) in the event any
judicial proceeding shall be pending with respect to any such default
in payment or such event or default, then no payment or distribution
of any kind or character, whether in cash, properties or Debentures
(including any Junior Subordinated Payment) shall be made by the
Company on account of principal of (or premium, if any) or interest
(including any Additional Interest), if any, on the Debentures or on
account of the purchase or other acquisition of Debentures by the
Company or any Subsidiary other than payments made from funds on
deposit pursuant to Section 4.1(a)(ii)(B) or from funds on deposit for
the redemption of Debentures for which notice of redemption has been
given and the Redemption Date has passed.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of the Debentures prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known as set forth in
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Section 12.10, to a Responsible Officer of the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 12.2 would be applicable.
SECTION 12.5 PAYMENT PERMITTED IF NO DEFAULT. Nothing
contained in this Article or elsewhere in this Subordinated Indenture or in
any of the Debentures shall prevent (a) the Company, at any time except
during the pendency of any Proceeding referred to in Section 12.2 or under
the conditions described in Sections 12.3 and 12.4, from making payments at
any time of principal of (or premium, if any) or interest on the Debentures,
or (b) the application by the Trustee of any money deposited with it
hereunder to the payment of or on account of the principal of (or premium, if
any) or interest (including any Additional Interest) on the Debentures or the
retention of such payment by the Holders, if, at the time of such application
by the Trustee, a Responsible Officer of the Trustee did not have actual
knowledge that such payment would have been prohibited by the provisions of
this Article.
SECTION 12.6 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR
DEBT. Subject to the payment in full of all Senior Debt, or the provision
for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, the Holders of the Debentures
shall be subrogated to the extent of the payments or distributions made to
the holders of such Senior Debt 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 Senior Debt of the Company to
substantially the same extent as the Debentures are subordinated to the
Senior Debt and is entitled to like rights of subrogation by reason of any
payments or distributions made to holders of such Senior Debt) to the rights
of the holders of such Senior Debt to receive payments and distributions of
cash, property and securities applicable to the Senior Debt until the
principal of (and premium, if any) and interest on the Debentures shall be
paid in full. For purposes of such subrogation, no payments or distributions
to the holders of the Senior Debt of any cash, property or securities to
which the Holders of the Debentures or the Trustee would be entitled except
for the provisions of this Article, and no payments pursuant to the
provisions of this Article to the holders of Senior Debt by Holders of the
Debentures or the Trustee, shall, as among the Company, its creditors other
than holders of Senior Debt, and the Holders of the Debentures, be deemed to
be a payment or distribution by the Company to or on account of the Senior
Debt.
SECTION 12.7 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Debentures on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Subordinated Indenture or in the Debentures is
intended to or shall (a) impair, as between the Company and the Holders of
the Debentures, the obligations of the Company, which are absolute and
unconditional, to pay to the Holders of the Debentures the principal of (and
premium, if any) and interest (including any Additional Interest) on the
Debentures as and when the same shall become due and payable in accordance
with their terms, or (b) affect the relative rights against the Company of
the Holders of the Debentures and creditors of the Company other than their
rights in relation to the holders of Senior Debt, or (c) prevent the Trustee
or the
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Holder of any Debenture from exercising all remedies otherwise permitted by
applicable law upon default under this Subordinated Indenture including, without
limitation, filing and voting claims in any Proceeding, subject to the rights,
if any, under this Article of the holders of Senior Debt to receive cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder.
SECTION 12.8 TRUSTEE TO EFFECTUATE SUBORDINATION. Each
Holder of a Debenture by his or her acceptance thereof authorizes and directs
the Trustee on his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
SECTION 12.9 NO WAIVER OF SUBORDINATION PROVISIONS. No
right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced
or impaired by any act or failure to act on the part of the Company or by any
act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Subordinated Indenture, regardless of any knowledge thereof that any such
holder may have or be otherwise charged with.
SECTION 12.10 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 Debentures. Notwithstanding the provisions of this Article or any other
provision of this Subordinated Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts which would prohibit the making
of any payment to or by the Trustee in respect of the Debentures, unless and
until the Trustee shall have received written notice thereof from the Company
or a person representing itself as a holder of Senior Debt or from any
trustee, agent or representative therefor (whether or not the facts contained
in such notice are true).
SECTION 12.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT. Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of
Article 6, and the Holders of the Debentures shall be entitled to
conclusively rely upon any order or decree entered by any court of competent
jurisdiction in which a Proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Debentures, for
the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of the Senior Debt 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 12.12 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
DEBT. With respect to the holders of the Senior Debt of the Company, the
Trustee undertakes to perform or observe only such of its obligations and
covenants as are set forth in this Article 12, and no implied covenants or
obligations with respect to the holders of such Senior Debt shall be read
into this Subordinated Indenture against First Chicago and/or the Trustee.
First Chicago and/or the Trustee shall not be deemed to owe any fiduciary
duty to the holders of such Senior Debt and, subject to the provisions of
Section 6.3, neither the Trustee (nor First Chicago) shall be liable to the
holder of any Senior Debt
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if it shall pay over or deliver to Holders, the Company, or any other person,
money or assets to which any holder of such Senior Debt shall be entitled to
by virtue of this Article 12 or otherwise.
SECTION 12.13 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT;
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 Debt which may at any time be held by it, to the same extent as
any other holder of Senior Debt, and, subject to the requirements of the
Trust Indenture Act, nothing in this Subordinated Indenture shall deprive the
Trustee of any of its rights as such holder.
SECTION 12.14 ARTICLE APPLICABLE TO PAYING AGENTS. In case
at any time any Paying Agent other than the Trustee shall have been appointed
by the Company and be then acting hereunder, the term "TRUSTEE" as used in
this Article shall in such case (unless the context otherwise requires) be
construed as extending to and including such Paying Agent within its meaning
as fully for all intent and purposes as if such Paying Agent were named in
this Article in addition to or in place of the Trustee.
SECTION 12.15 CERTAIN CONVERSIONS OR EXCHANGES DEEMED
PAYMENT. For the purpose of this Article only, (a) the issuance and delivery
of junior securities upon conversion or exchange of Debentures shall not be
deemed to constitute a payment or distribution on account of the principal of
(or premium, if any) or interest (including any Additional Interest) on the
Debentures or on account of the purchase or other acquisition of Debentures,
and (b) the payment, issuance or delivery of cash (including any payments for
fractional shares), property or securities (other than junior securities)
upon conversion or exchange of a Debenture shall be deemed to constitute
payment on account of the principal of such security. For the purpose of
this Section, the term "JUNIOR SECURITIES" means (i) shares of any stock of
any class of the Company and (ii) securities of the Company which are
subordinated in right of payment to all Senior Debt which may be outstanding
at the time of issuance or delivery of such securities to substantially the
same extent as, or to a greater extent than, the Debentures are so
subordinated as provided in this Article.
ARTICLE 13
CONVERSION OF DEBENTURES
SECTION 13.1 CONVERSION RIGHTS. Subject to and upon
compliance with the provisions of this Article, the Debentures are
convertible, at the option of the Holder, at any time after 90 days following
the original issue date thereof and prior to the redemption or maturity, into
fully paid and nonassessable shares of Common Stock at an initial conversion
rate of 0.8140 shares of Common Stock for each $50 in aggregate principal
amount of Debentures (equal to a conversion price of approximately $61.425
per share of Common Stock), subject to adjustment as described in this
Article 13 (as adjusted, the "CONVERSION PRICE"). A Holder of Debentures may
convert any portion of the principal amount of the Debentures into that
number of fully paid and nonassessable shares of Common Stock (calculated as
to each conversion to the nearest 1/100th of a share) obtained by dividing
the principal amount of the Debentures to be converted by the Conversion
Price. In case a Debenture or portion thereof is called for redemption, such
conversion right in respect of the
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Debenture or portion so called shall expire at the close of business on the
Redemption Date, unless the Company defaults in making the payment due upon
redemption.
SECTION 13.2 CONVERSION PROCEDURES.
(a) In order to convert all or a portion of the Debentures, the
Holder thereof shall deliver to the Property Trustee, as conversion agent
or to such other agent appointed for such purposes (the "CONVERSION
AGENT") an irrevocable Notice of Conversion setting forth the principal
amount of Debentures to be converted, together with the name or names, if
other than the Holder, in which the shares of Common Stock should be
issued upon conversion and, if such Debentures are definitive Debentures,
surrender to the Conversion Agent the Debentures to be converted, duly
endorsed or assigned to the Company or in blank. In addition, a holder
of Preferred Securities may exercise its right under the Declaration to
convert such Preferred Securities into Common Stock by delivering to the
Conversion Agent an irrevocable Notice of Conversion setting forth the
information called for by the preceding sentence and directing the
Conversion Agent (i) to exchange such Preferred Security for a portion of
the Debentures held by the Trust (at an exchange rate of $50 principal
amount of Debentures for each Preferred Security) and (ii) to immediately
convert such Debentures, on behalf of such holder, into Common Stock
pursuant to this Article 13 and, if such Preferred Securities are in
definitive form, surrendering such Preferred Securities, duly endorsed or
assigned to the Company or in blank. So long as any Preferred Securities
are outstanding, the Trust shall not convert any Debentures except
pursuant to a Notice of Conversion delivered to the Conversion Agent by a
holder of Preferred Securities.
If a Notice of Conversion is delivered on or after the Regular
Record Date and prior to the subsequent Interest Payment Date, the Holder
of record on the Regular Record Date will be entitled to receive the
interest paid on the subsequent Interest Payment Date on the portion of
Debentures to be converted notwithstanding the conversion thereof prior
to such Interest Payment Date. Except as otherwise provided in the
immediately preceding sentence, in the case of any Debenture which is
converted, interest whose Stated Maturity is on or after the date of
conversion of such Debenture shall not be payable, and the Company shall
not make nor be required to make any other payment, adjustment or
allowance with respect to accrued but unpaid interest on the Debentures
being converted, which shall be deemed to be paid in full. Debentures
submitted for conversion prior to the expiration of conversion rights as
provided in Section 13.3 shall be deemed to have been effected
immediately prior to the close of business on the day on which the Notice
of Conversion was received (the "CONVERSION DATE") by the Conversion
Agent from the Holder or from a holder of the Preferred Securities
effecting a conversion thereof pursuant to its conversion rights under
the Declaration, as the case may be. The Person or Persons entitled to
receive Common Stock issuable upon such conversion shall be treated for
all purposes as the record holder or holders of such Common Stock as of
the Conversion Date and such Person or Persons will cease to be a record
Holder or record Holders of the Debentures on that date. As promptly as
practicable on or after the Conversion Date, the Company shall issue and
deliver at the office of the Conversion Agent, unless otherwise directed
by the Holder or holder in the Notice of Conversion, a certificate or
certificates for the number of full shares of Common
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Stock issuable upon such conversion, together with the cash payment,
if any, in lieu of any fraction of any share to the Person or Persons
entitled to receive the same. The Conversion Agent shall deliver such
certificate or certificates to such Person or Persons.
(b) The Company's delivery upon conversion of the fixed
number of shares of Common Stock into which the Debentures are
convertible (together with the cash payment, if any, in lieu of
fractional shares) shall be deemed to satisfy the Company's obligation
to pay the principal amount at Maturity of the portion of Debentures
so converted and any unpaid interest (including Additional Interest)
accrued on such Debentures at the time of such conversion.
(c) No fractional shares of Common Stock will be issued as a
result of conversion, but in lieu thereof, the Company shall pay to the
Conversion Agent a cash adjustment in an amount equal to the same
fraction of the Current Market Price with respect to such fractional
interest on the date on which the Debentures or Preferred Securities, as
the case may be, were duly surrendered to the Conversion Agent for
conversion, and the Conversion Agent in turn will make such payment, if
any, to the Holder of the Securities or the holder of the Preferred
Securities so converted.
(d) In the event of the conversion of any Debenture in part
only, a new Debenture or Debentures for the unconverted portion
thereof will be issued in the name of the Holder thereof upon the
cancellation of the Debenture converted in part in accordance with
Section 3.5.
(e) In effecting the conversion transactions described in
this Section, the Conversion Agent is acting as agent of the holders
of Preferred Securities (in the exchange of Preferred Securities for
Debentures) and as agent of the Holders of Debentures (in the
conversion of Debentures into Common Stock), as the case may be,
directing it to effect such conversion transactions. The Conversion
Agent is hereby authorized (i) to exchange Debentures held by the
Trust from time to time for Preferred Securities in connection with
the conversion of such Preferred Securities in accordance with this
Article 13 and (ii) to convert all or a portion of the Debentures into
Common Stock and thereupon to deliver such shares of Common Stock in
accordance with the provisions of this Article 13 and to deliver to
the Trust a new Debenture or Debentures for any resulting unconverted
principal amount.
(f) Except as provided in Section 2.6, all shares of Common
Stock delivered upon any conversion of Debentures shall bear a legend
substantially in the form of the legend set forth in Exhibit C to the
Declaration. Neither the Trustee nor the Conversion Agent shall have
any responsibility for the inclusion or content of any such legend on
such Common Stock.
(g) The Company shall at all times reserve and keep
available out of its authorized and unissued Common Stock, solely for
issuance upon the conversion of the Debentures, such number of shares
of Common Stock as shall from time to time be issuable upon the
conversion of all the Debentures then outstanding. Notwithstanding
the foregoing, the
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Company shall be entitled to deliver upon conversion of Debentures
shares of Common Stock reacquired and held in the treasury of the
Company (in lieu of the issuance of authorized and unissued shares of
Common Stock) so long as any such treasury shares are free and clear
of all liens, charges, security interests or encumbrances. Whenever
the Company issues shares of Common Stock upon conversion of
Debentures, and the Company has in effect at such time a stock
purchase rights agreement under which holders of Common Stock are
issued rights ("RIGHTS") entitling the holders under certain
circumstances to purchase an additional share or shares of stock, the
Company will issue, together with each such share of Common Stock,
such number of Rights (which number may be a fraction) as shall at
that time be issuable with a share of Common Stock pursuant to such
stock purchase rights agreement. Any shares of Common Stock issued
upon conversion of the Debentures shall be duly authorized, validly
issued and fully paid and nonassessable. The Conversion Agent shall
deliver the shares of Common Stock received upon conversion of the
Debentures to the converting Holder free and clear of all liens,
charges, security interests and encumbrances, except for United States
withholding taxes. The Company shall use its best efforts to obtain
and keep in force such governmental or regulatory permits or other
authorizations as may be required by law, and shall comply with all
applicable requirements as to registration or qualification of Common
Stock (and all requirements to list Common Stock issuable upon
conversion of Debentures that are at the time applicable), in order to
enable the Company to lawfully issue Common Stock upon conversion of
the Debentures and to lawfully deliver Common Stock to each Holder
upon conversion of the Debentures.
(h) The Company will pay any and all taxes that may be
payable in respect of the issue or delivery of shares of Common Stock
on conversion of Debentures. 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 in which the Debentures so converted were
registered, and no such issue or delivery shall be made unless and
until the Person requesting such issue has paid to the Conversion
Agent the amount of any such tax, or has established to the
satisfaction of the Conversion Agent that such tax has been paid.
(i) Nothing in this Article 13 shall limit the requirement
of the Company to withhold taxes pursuant to the terms of the
Debentures or as set forth in this Agreement or otherwise require the
Trustee or the Company to pay any amounts on account of such
withholdings.
SECTION 13.3 EXPIRATION OF CONVERSION RIGHTS. The
conversion rights of Holders of Debentures shall expire (the "Conversion
Expiration Date") at the earlier of (i) the cancellation of the Debentures or
(ii) the close of business on the date prior to the date set for redemption
of the Debentures or Stated Maturity of the Debentures.
SECTION 13.4 CONVERSION PRICE ADJUSTMENTS. The conversion
price shall be subject to adjustment (without duplication) from time to time
as follows:
(a) In case the Company shall, while any of the Debentures are
outstanding, (i) pay a dividend or make a distribution with respect to
its Common Stock in shares of Common
74
Stock, (ii) subdivide its outstanding shares of Common Stock, (iii)
combine its outstanding shares of Common Stock into a smaller number
of shares or (iv) reclassify its shares of Common Stock into shares of
Common Stock and securities other than shares of Common Stock not
constituting a Fundamental Change, then the Conversion Price and the
number and kind of shares of Common Stock and such other securities
receivable upon a conversion of Debentures in effect immediately prior
to such action shall be adjusted so that the Holder of any Debentures
thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock and such other securities of the
Company which such Holder would have owned immediately prior thereto
if such Debenture had been converted immediately prior thereto. An
adjustment made pursuant to this subsection (a) shall become effective
immediately after the record date in the case of a dividend or other
distribution and shall become effective immediately after the
effective date in case of a subdivision, combination or
reclassification (or immediately after the record date if a record
date shall have been established for such event). If, as a result of
an adjustment made pursuant to this subsection (a), the Holder of any
Debenture thereafter surrendered for conversion shall become entitled
to receive shares of two or more classes or series of Capital Stock of
the Company, the Board of Directors, whose determination shall be
conclusive and shall be described in a Board Resolution shall
determine the allocation of the adjusted Conversion Price between or
among shares of such classes or series of Capital Stock. In the event
that such dividend, distribution, subdivision, combination or
reclassification is not so paid or made, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in
effect if such record date had not been fixed.
(b) In case the Company shall, while any of the Debentures are
Outstanding, issue rights or warrants to all holders of its Common Stock
entitling them (for a period expiring within 45 days after the record
date mentioned below) to subscribe for or purchase shares of Common Stock
at a price per share less than the Current Market Price per share of
Common Stock on the record date mentioned below, the Conversion Price for
the Debentures shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately
prior to the date of issuance of such rights or warrants by a fraction of
which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the record date mentioned below,
plus the number of shares which the aggregate offering price of the total
number of shares so offered for subscription or purchase would purchase
at such Current Market Price, and of which the denominator shall be the
number of shares of Common Stock outstanding at the close of business on
the record date mentioned below, plus the number of additional shares of
Common Stock offered for subscription or purchase. Such adjustment shall
become effective immediately after the record date for the determination
of stockholders entitled to receive such rights or warrants. For the
purposes of this subsection, the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the
Company. In case any rights or warrants referred to in this subsection in
respect of which an adjustment shall have been made shall expire
unexercised, within 45 days after the same shall have been distributed or
issued by the Company, the Conversion Price shall be readjusted at the
time of such expiration to the Conversion Price that would have been in
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effect if no adjustment had been made on account of the distribution or
issuance of such expired rights or warrants.
(c) Subject to the last sentence of this subsection (c), in
case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock evidences of its indebtedness, shares of
any class or series of Capital Stock, cash or assets (including
securities, but excluding any rights or warrants referred to in
subsection (b), any dividend or distribution paid exclusively in cash
and any dividend or distribution referred to in Section 13.4(a)), the
Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect
immediately prior to the close of business on the date fixed for the
determination of stockholders entitled to such distribution (the
"REFERENCE DATE") by a fraction of which the numerator shall be the
Current Market Price per share of the Common Stock on the Reference
Date less the fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and
described in a Board Resolution), on the Reference Date, of the
portion of the evidences of indebtedness, shares of Capital Stock,
cash and assets so distributed applicable to one share of Common Stock
and the denominator shall be such Current Market Price per share of
the Common Stock, such reduction to become effective immediately prior
to the opening of business on the day following the Reference Date.
In the event that such dividend or distribution is not so paid or
made, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such dividend or
distribution had not occurred. For purposes of this subsection (c),
any dividend or distribution that includes shares of Common Stock or
rights or warrants to subscribe for or purchase shares of Common Stock
shall be deemed instead to be (i) a dividend or distribution of the
evidences of indebtedness, shares of Capital Stock, cash or assets
other than such shares of Common Stock or such rights or warrants
(making any Conversion Price reduction required by this subparagraph
(c)) immediately followed by (ii) a dividend or distribution of such
shares of Common Stock or such rights or warrants (making any further
Conversion Price reduction required by subsection (a) or (b)), except
any shares of Common Stock included in such dividend or distribution
shall not be deemed outstanding for purposes of computing any
adjustment of the Conversion Price in subsection (a).
(d) In case the Company shall pay or make a dividend or other
distribution on its Common Stock exclusively in cash (excluding all (i)
regular quarterly cash dividends that do not exceed the per share amount
of the immediately preceding regular quarterly cash dividend (as adjusted
to reflect any of the events referred to in Sections 13.4(a), 13.4(b) or
13.4(c)) and (ii) regular quarterly cash dividends if the annualized
amount thereof per share of Common Stock does not exceed 12.5% of the
Current Market Price per share of the Common Stock on the Trading Day
immediately preceding the date of declaration of such dividend), the
Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately
prior to the effectiveness of the Conversion Price reduction contemplated
by this subsection (d) by a fraction, of which the numerator shall be the
Current Market Price per share of the Common Stock on the date fixed for
the payment of such distribution less the amount of cash so distributed
(excluding that portion of such distribution that does not exceed 12.5%
of the
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Current Market Price per share, determined as provided above)
applicable to one share of Common Stock and of which the denominator
shall be such Current Market Price per share of the Common Stock, such
reduction to become effective immediately prior to the opening of
business on the day following the date fixed for the payment of such
distribution; provided, however, that in the event the portion of the
cash so distributed applicable to one share of Common Stock is equal
to or greater than the Current Market Price per share of the Common
Stock on the record date mentioned above (excluding that portion of
such distribution that does not exceed 12.5% of the Current Market
Price per share, determined as provided above), in lieu of the
foregoing adjustment adequate provision shall be made so that each
Holder of Debentures shall have the right to receive upon conversion
the amount of cash such Holder would have received had such Holder
converted such Debenture(s) immediately prior to the record date for
the distribution of the cash (less that portion of such distribution
that does not exceed 12.5% of the Current Market Price per share,
determined as provided above). In the event that such dividend or
distribution is not so paid or made, the Conversion Price shall again
be adjusted to be the Conversion Price which would then be in effect
if such record date had not been fixed.
(e) In case a tender or exchange offer (other than an odd-lot
offer) made by the Company or any Subsidiary of the Company for all or
any portion of the Common Stock shall expire and such tender or exchange
offer shall involve the payment by the Company or such Subsidiary of
consideration per share of Common Stock having a fair market value (as
determined in good faith by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution) at the last time
(the "Expiration Time") tenders or exchanges may be made pursuant to such
tender or exchange offer as it shall have been amended) that exceeds 110%
of the Current Market Price per share of the Common Stock on the Trading
Day next succeeding the Expiration Time, the Conversion Price shall be
reduced so that the same shall equal the price determined by multiplying
the Conversion Price in effect immediately prior to the effectiveness of
the Conversion Price reduction contemplated by this subsection (e) by a
fraction, of which the numerator shall be the number of shares of Common
Stock outstanding (including any shares tendered or exchanged in such
offer) at the Expiration Time (including the Purchased Shares, as defined
below) multiplied by the Current Market Price per share of the Common
Stock on the Trading Day next succeeding the Expiration Time and of which
the denominator shall be the sum of (x) the fair market value (determined
as aforesaid) of the aggregate consideration payable to stockholders
based on the acceptance (up to any maximum specified in the terms of the
tender or exchange offer) of all shares validly tendered or exchanged and
not withdrawn as of the Expiration Time (the shares deemed so accepted,
up to any such maximum, being referred to as the "Purchased Shares")
(excluding that portion of such consideration that does not exceed 110%
of the Current Market Price per share of the Common Stock on the Trading
Day next succeeding the Expiration Time) and (y) the product of the
number of shares of Common Stock outstanding (less any Purchased Shares)
at the Expiration Time and the Current Market Price per share of the
Common Stock on the Trading Day next succeeding the Expiration Time, such
reduction to become effective immediately prior to the opening of
business on the day following the Expiration Time. In the event that no
shares are validly accepted in such tender or exchange offer, the
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Conversion Price shall again be adjusted to be the Conversion Price which
would then be in effect if such record date had not been fixed.
(f) The Company shall have the right to reduce from time to
time the Conversion Price by any amount selected by the Company (and
determined by the Company's Board to be in its best interest) for any
period of at least 20 days, PROVIDED, that Company shall give at least
15 days' written notice of such reduction to the Trustee and the
Property Trustee. The Company may, at its option, make such
reductions in the Conversion Price, in addition to those set forth
above in Section 13.4(a), as the Board of Directors deems advisable to
avoid or diminish any income tax to holders of Common Stock resulting
from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for United States Federal
income tax purposes.
(g) Notwithstanding anything to the contrary in this Section
13.4, no adjustment of the Conversion Price will be made upon the
issuance of any shares of Common Stock (or securities convertible or
exchangeable for Common Stock), except as specifically provided above,
including pursuant to any present or future plan providing for the
reinvestment of dividends or interest payable on securities of the
Company and the investment of additional optional amounts in shares of
Common Stock under any such plan, or the issuance of any shares of
Common Stock or options or rights to purchase such shares pursuant to
any present or future employee benefit plan or program of the Company
or pursuant to any option, warrant, right, or exercisable,
exchangeable or convertible security which does not constitute an
issuance to all holders of Common Stock or class thereof of rights or
warrants entitling holders of such rights or warrants to subscribe for
or purchase Common Stock at less than the Current Market Price.
Further, such issuances shall not be deemed to constitute an issuance
of Common Stock or exercisable, exchangeable or convertible securities
by the Company to which any of the adjustment provisions described
above applies. There shall also be no adjustment of the Conversion
Price in case of the issuance of any stock (or securities convertible
into or exchangeable for stock) of the Company except as specifically
described in this Article 13. No adjustment in the Conversion Price
will be required unless such adjustment would require an increase or
decrease of at least 1% of the Conversion Price, but any adjustment
that would otherwise be required to be made shall be carried forward
and taken into account in a subsequent adjustment.
(h) If any action would require adjustment of the Conversion
Price pursuant to more than one of the provisions described above,
only one adjustment shall be made and such adjustment shall be the
amount of adjustment that has the highest absolute value to the Holder
of the Debentures.
SECTION 13.5 FUNDAMENTAL CHANGE.
(a) In the event that the Company is a party to any transaction
(including, without limitation, a merger other than a merger that does
not result in a reclassification, conversion, exchange or cancellation of
Common Stock), consolidation, continuance, sale of all or substantially
all of the assets of the Company, recapitalization, holding company
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reorganization (whether pursuant to Section 251(g) of the Delaware
General Corporation Law or otherwise) or reclassification of Common Stock
(other than a change in par value, or from par value to no par value, or
from no par value to par value or as a result of a subdivision or
combination of Common Stock) or any compulsory share exchange (each of
the foregoing being referred to as a "TRANSACTION"), in each case, as a
result of which shares of Common Stock shall be converted into the right
to receive, or shall be exchanged for, (i) in the case of any Transaction
other than a Transaction involving a Stock Fundamental Change (and
subject to funds being legally available for such purpose under
applicable law at the time of such conversion), securities, cash or other
property, each Debenture shall thereafter be convertible into the kind
and, in the case of a Transaction which does not involve a Fundamental
Change, amount of securities, cash and other property receivable upon the
consummation of such Transaction by a holder of that number of shares of
Common Stock into which a Debenture was convertible immediately prior to
such Transaction, or (ii) in the case of a Transaction involving a Stock
Fundamental Change (and subject to funds being legally available for such
purpose under applicable law at the time of such conversion), securities,
cash or other property, each Debenture shall thereafter be convertible
(in the manner described herein) into Common Stock of the kind received
by holders of Common Stock (but in each case after giving effect to any
adjustment discussed in subsections (b) and (c) relating to a Fundamental
Change if such Transaction constitutes a Fundamental Change). The
Holders of Debentures will have no voting rights with respect to any
Transaction described in this section.
(b) If any Fundamental Change occurs, then the Conversion
Price in effect will be adjusted immediately after such Fundamental
Change as described in paragraph (c) below. In addition, in the event
of a Stock Fundamental Change, each Debenture shall be convertible
solely into common stock of the kind received by holders of Common
Stock as a result of such Stock Fundamental Change.
(c) The Conversion Price in the case of any Transaction
involving a Fundamental Change will be adjusted immediately after such
Fundamental Change:
(i) in the case of a Non-Stock Fundamental Change, the
Conversion Price immediately following such Non-Stock Fundamental
Change will be the lower of (A) the Conversion Price in effect
immediately prior to such Non-Stock Fundamental Change (after
giving effect to any other prior adjustments), and (B) the result
obtained by multiplying the greater of the Applicable Price and
the then applicable Reference Market Price by a fraction of which
the numerator will be 100 and of which the denominator will be an
amount based upon the date such Non-Stock Fundamental Change
occurs. For the 12-month period beginning June 30, 1998 (and
during the period from June 9, 1998 to June 30, 1998), the
denominator used in the immediately preceding sentence will be
106.75%, and such denominator will decrease by 0.675% during each
successive 12-month period, provided that in no event shall the
denominator be less than 100%; and
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(ii) in the case of a Stock Fundamental Change, the
Conversion Price immediately following such Stock Fundamental
Change will be the Conversion Price in effect immediately prior to
such Stock Fundamental Change (after giving effect to any other
prior adjustments) as adjusted by multiplying such Conversion
Price by a fraction, of which the numerator will be the Purchaser
Stock Price and of which the denominator will be the Applicable
Price; provided, however, that in the event of a holding company
reorganization of the Company (whether effected in accordance with
Section 251(g) of the Delaware General Corporation Law or
otherwise) or in the event of a Stock Fundamental Change in which
(A) 100% of the value of the consideration received by a holder of
Common Stock is Common Stock of the successor, acquiror or other
third party (and cash, if any, is paid only with respect to any
fractional interests in such Common Stock resulting from such
Stock Fundamental Change) and (B) all of the Common Stock will
have been exchanged for, converted into, or acquired for Common
Stock (and cash with respect to fractional interests) of the
successor, acquiror, or other third party, the Conversion Price
immediately following such Stock Fundamental Change will be the
Conversion Price in effect immediately prior to such Stock
Fundamental Change as adjusted by multiplying such Conversion
Price by a fraction, of which the numerator will be one and the
denominator will be the number of shares of Common Stock of the
holding company, successor, acquiror or other third party received
by a holder of one share of Common Stock as a result of such Stock
Fundamental Change.
SECTION 13.6 NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
Whenever the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion price and
shall prepare a certificate signed by the Chief Financial Officer or the
Treasurer of the Company setting forth the adjusted conversion price and
showing in reasonable detail the facts upon which such adjustment is
based, and such certificate shall forthwith be filed with the Trustee,
the Conversion Agent and the transfer agent for the Preferred Securities
and the Debentures; and
(b) a notice stating the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall as soon as practicable
be mailed by the Company to all record holders of Preferred Securities
and the Debentures at their last addresses as they appear upon the stock
transfer books of the Company and the Trust and the Securities Registrar.
SECTION 13.7 PRIOR NOTICE OF CERTAIN EVENTS. In case:
(a) the Company shall (i) declare any dividend (or any other
distribution) on its Common Stock, other than (A) a dividend payable in
shares of Common Stock or (B) a dividend payable in cash that would not
require an adjustment pursuant to Section 13.4(c) or (d) or (ii)
authorize a tender or exchange offer that would require an adjustment
pursuant to Section 13.4(e);
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(b) the Company shall authorize the granting to all holders
of Common Stock of rights or warrants to subscribe for or purchase any
shares of stock of any class or series or of any other rights or
warrants;
(c) of any reclassification of Common Stock (other than a
subdivision or combination of the outstanding Common Stock, or a change
in par value, or from par value to no par value, or from no par value to
par value), or of any consolidation or merger to which the Company is a
party and for which approval of stockholders of the Company shall be
required, or of the sale or transfer of all or substantially all of the
assets of the Company or of any compulsory share exchange whereby Common
Stock is converted into other securities, cash or other property; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall (A) if any Preferred Securities are outstanding under the
Declaration, cause to be filed with the transfer agent for the Preferred
Securities, and shall cause to be mailed to the holders of record of the
Preferred Securities, at their last addresses as they shall appear upon the
stock transfer books of the Trust or (B) shall cause to be mailed to all Holders
at their last addresses as they shall appear in the Security Register, at least
15 days prior to the applicable record or effective date hereinafter specified,
a notice stating (x) the date on which a record (if any) is to be taken for the
purpose of such dividend, distribution, rights or warrants or, if a record is
not to be taken, the date as of which the holders of Common Stock of record to
be entitled to such dividend, distribution, rights or warrants are to be
determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer, share exchange, dissolution, liquidation or winding up
is expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up (but no failure to mail such notice or
any defect therein or in the mailing thereof shall affect the validity of the
corporate action required to be specified in such notice).
SECTION 13.8 CERTAIN ADDITIONAL RIGHTS. In case the Company
shall, by dividend or otherwise, declare or make a distribution on its Common
Stock referred to in Section 13.4(c) or 13.4(d) (including, without
limitation, dividends or distributions referred to in the last sentence of
Section 13.4(c)), the Holders of the Debentures, upon the conversion thereof
subsequent to the close of business on the date fixed for the determination
of stockholders entitled to receive such distribution and prior to the
effectiveness of the Conversion Price adjustment in respect of such
distribution, shall also be entitled to receive for each share of Common
Stock into which the Debentures are converted, the portion of the shares of
Common Stock, rights, warrants, evidences of indebtedness, shares of capital
stock, cash and assets so distributed applicable to one share of Common
Stock; PROVIDED, HOWEVER, that, at the election of the Company (whose
election shall be evidenced by a resolution of the Board of Directors) with
respect to all Holders so converting, the Company may, in lieu of
distributing to such Holder any portion of such distribution not consisting
of cash or securities of the Company, pay such Holder an amount in cash equal
to the fair market
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value thereof (as determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the Board
of Directors). If any conversion of Debentures described in the immediately
preceding sentence occurs prior to the payment date for a distribution to
holders of Common Stock which the Holder of Debentures so converted is
entitled to receive in accordance with the immediately preceding sentence,
the Company may elect (such election to be evidenced by a resolution of the
Board of Directors) to distribute to such Holder a due xxxx for the shares of
Common Stock, rights, warrants, evidences of indebtedness, shares of capital
stock, cash or assets to which such Holder is so entitled, PROVIDED, that
such due xxxx (i) meets any applicable requirements of the principal national
securities exchange or other market on which Common Stock is then traded and
(ii) requires payment or delivery of such shares of Common Stock, rights,
warrants, evidences of indebtedness, shares of capital stock, cash or assets
no later than the date of payment or delivery thereof to holders of shares of
Common Stock receiving such distribution.
SECTION 13.9 RESTRICTIONS ON COMMON STOCK ISSUABLE UPON
CONVERSION.
(a) Shares of Common Stock to be issued upon conversion of a
Debenture in respect of Preferred Securities shall bear such restrictive
legends as the Company may provide in accordance with applicable law.
(b) If shares of Common Stock to be issued upon conversion of a
Debenture in respect of Preferred Securities are to be registered in a
name other than that of the Holder of such Preferred Security, then the
Person in whose name such shares of Common Stock are to be registered
must deliver to the Conversion Agent a certificate satisfactory to the
Company and signed by such Person, as to compliance with the restrictions
on transfer applicable to such Preferred Security. Neither the Trustee
nor any Conversion Agent or Registrar shall be required to register in a
name other than that of the Holder shares of Common Stock issued upon
conversion of any such Debenture in respect of such Preferred Securities
not so accompanied by a properly completed certificate.
SECTION 13.10 TRUSTEE NOT RESPONSIBLE FOR DETERMINING
CONVERSION PRICE OR ADJUSTMENTS.
Neither the Trustee nor any Conversion Agent shall at any time be under
any duty or responsibility to any Holder of any Debenture or to any holder of a
Preferred Security to determine whether any facts exist which may require any
adjustment of the Conversion Price, or with respect to the nature or extent of
any such adjustment when made, or with respect to the method employed, or herein
or in any supplemental indenture provided to be employed, in making the same.
Neither the Trustee nor any Conversion Agent shall be accountable with respect
to the validity or value (or the kind of account) of any shares of Common Stock
or of any securities or property, which may at any time be issued or delivered
upon the conversion of any Debenture; and neither the Trustee nor any Conversion
Agent makes any representation with respect thereto. Neither the Trustee nor
any Conversion Agent shall be responsible for any failure of the Company to make
any cash payment or to issue, transfer or deliver any shares of Common Stock or
stock certificates or other securities or property upon the surrender of any
Debenture for the purpose of conversion, or, except as
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expressly herein provided, to comply with any of the covenants of the Company
contained in Article 10 or this Article 13.
* * * * *
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Subordinated
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.
TOWER AUTOMOTIVE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Chief
Financial Officer
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
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