EXECUTION COPY
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INDENTURE
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Dated as of May 27, 1998
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between
GETTY IMAGES, INC.
as Issuer,
and
THE BANK OF NEW YORK
as Trustee
$75,000,000
(With an Over-Allotment Option for an Additional $11,250,000)
4.75% Convertible Subordinated Notes due 2003
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<PAGE>
CROSS-REFERENCE TABLE
TIA SECTION . . . . . . . . . . . . . . INDENTURE SECTION
310(a)(1) . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . 7.8; 7.10; 13.2
(b) . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . 2.5
(b) . . . . . . . . . . . . . . . . . . . 13.3
(c) . . . . . . . . . . . . . . . . . . . 13.3
313(a) . . . . . . . . . . . . . . . . . . 7.6
(b)(1) . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . 7.6
(c) . . . . . . . . . . . . . . . . . . 7.6; 13.2
(d) . . . . . . . . . . . . . . . . . . . 7.6
314(a) . . . . . . . . . . . . . . . . 4.6; 4.7; 13.2
(b) . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . 2.2; 7.2; 8.1; 13.4
(c)(2) . . . . . . . . . . . . . . . . . 7.2; 13.4
(c)(3) . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . 13.5
(f) . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . 7.1(b)
(b) . . . . . . . . . . . . . . . . . . 7.5; 13.2
(c) . . . . . . . . . . . . . . . . . . 7.1(a)
(d) . . . . . . . . . . . . . . . 2.8; 6.11; 7.1(b)(c)
(e) . . . . . . . . . . . . . . . . . . . 6.13
316(a) (last sentence) . . . . . . . . . . . . . . 2.9
(a)(1)(A) . . . . . . . . . . . . . . . . . 6.11
(a)(1)(B) . . . . . . . . . . . . . . . . . 6.12
(a)(2) . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . 6.7; 6.8; 6.12
316(c) . . . . . . . . . . . . . . . . . . N.A.
317(a)(1) . . . . . . . . . . . . . . . . . 6.3
(a)(2) . . . . . . . . . . . . . . . . . . 6.4
(b) . . . . . . . . . . . . . . . . . . . 2.4
318(a) . . . . . . . . . . . . . . . . . . 13.1
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . 1
SECTION 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Incorporation by Reference of TIA. . . . . . . . . . . . . . . 10
SECTION 1.3. Rules of Construction. . . . . . . . . . . . . . . . . . . . . 10
ARTICLE II. THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.1. Form and Dating. . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.2. Execution and Authentication . . . . . . . . . . . . . . . . . 12
SECTION 2.3. Registrar and Paying Agent . . . . . . . . . . . . . . . . . . 13
SECTION 2.4. Paying Agent to Hold Assets in Trust . . . . . . . . . . . . . 13
SECTION 2.5. Securityholder Lists . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.6. Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.7. Replacement Securities . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.8. Outstanding Securities . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.9. Treasury Securities. . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.10. Temporary Securities . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.11. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.12. Interest and Defaulted Interest. . . . . . . . . . . . . . . . 24
SECTION 2.13 CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE III. REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.1. Right of Redemption. . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.2. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.3. Selection of Securities to Be Redeemed . . . . . . . . . . . . 26
SECTION 3.4. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.5. Effect of Notice of Redemption . . . . . . . . . . . . . . . . 28
SECTION 3.6. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . 28
SECTION 3.7. Securities Redeemed in Part. . . . . . . . . . . . . . . . . . 29
SECTION 3.8. Conversion Arrangement on Call for Redemption. . . . . . . . . 29
ARTICLE IV. COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.1. Payment of Securities. . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.2. Maintenance of Office or Agency. . . . . . . . . . . . . . . . 30
SECTION 4.3. Corporate Existence. . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.4. Payment of Taxes and Other Claims. . . . . . . . . . . . . . . 31
SECTION 4.5. Maintenance of Properties and Insurance. . . . . . . . . . . . 31
SECTION 4.6. Compliance Certificate; Notice of Default. . . . . . . . . . . 32
SECTION 4.7. Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.8. Limitation on Status as Investment Company . . . . . . . . . . 33
SECTION 4.9. Waiver of Stay, Extension and Usury Laws . . . . . . . . . . . 33
SECTION 4.10. Rule 144A Information Requirement. . . . . . . . . . . . . . . 34
SECTION 4.11. Qualification of Indenture . . . . . . . . . . . . . . . . . . 34
SECTION 4.12. Registration Rights. . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE V. SUCCESSOR CORPORATION. . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.1. Limitation on Merger, Sale or Consolidation. . . . . . . . . . 34
SECTION 5.2. Successor Corporation Substituted. . . . . . . . . . . . . . . 35
ARTICLE VI. EVENTS OF DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . 35
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SECTION 6.1. Events of Default. . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.2. Acceleration of Maturity Date; Rescission and Annulment. . . . 38
SECTION 6.3. Collection of Indebtedness and Suits for Enforcement by
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.4. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . 39
SECTION 6.5. Trustee May Enforce Claims Without Possession of Securities. . 40
SECTION 6.6. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.7. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.8. Unconditional Right of Holders to Receive Payments and to
Convert. . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.9. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . 42
SECTION 6.10. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . 42
SECTION 6.11. Control by Holders. . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.12. Waiver of Past Default. . . . . . . . . . . . . . . . . . . . 43
SECTION 6.13. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.14. Restoration of Rights and Remedies. . . . . . . . . . . . . . 44
ARTICLE VII. TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.1. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.2. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.3. Individual Rights of Trustee . . . . . . . . . . . . . . . . . 47
SECTION 7.4. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . 47
SECTION 7.5. Notice of Default. . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 7.6. Reports by Trustee to Holders. . . . . . . . . . . . . . . . . 47
SECTION 7.7. Compensation and Indemnity . . . . . . . . . . . . . . . . . . 47
SECTION 7.8. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . 48
SECTION 7.9. Successor Trustee by Merger, Etc . . . . . . . . . . . . . . . 50
SECTION 7.10. Eligibility; Disqualification. . . . . . . . . . . . . . . . . 50
SECTION 7.11. Preferential Collection of Claims Against Company. . . . . . . 50
ARTICLE VIII. SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . 50
SECTION 8.1. Satisfaction and Discharge of Indenture. . . . . . . . . . . . 50
SECTION 8.2. Repayment to the Company . . . . . . . . . . . . . . . . . . . 51
ARTICLE IX. AMENDMENTS, SUPPLEMENTS AND WAIVERS. . . . . . . . . . . . . . . 51
SECTION 9.1. Supplemental Indentures Without Consent of Holders . . . . . . 51
SECTION 9.2. Amendments, Supplemental Indentures and Waivers with Consent
of Holders . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.3. Compliance with TIA. . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.4. Revocation and Effect of Consents. . . . . . . . . . . . . . . 53
SECTION 9.5. Notation on or Exchange of Securities. . . . . . . . . . . . . 54
SECTION 9.6. Trustee to Sign Amendments, Etc. . . . . . . . . . . . . . . . 54
ARTICLE X. RIGHT TO REQUIRE REPURCHASE UPON A CHANGE OF CONTROL. . . . . . 54
SECTION 10.1. Repurchase of Securities at Option of the Holder Upon a
Change of Control. . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.2. Election to Pay Repurchase Price in Common Stock . . . . . . . 57
ARTICLE XI. SUBORDINATION. . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 11.1. Securities Subordinated to Senior Indebtedness. . . . . . . . 58
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SECTION 11.2. No Payment on Securities in Certain Circumstances. . . . . . . 59
SECTION 11.3. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization . 60
SECTION 11.4. Securityholders to Be Subrogated to Rights of Holders of
Senior Indebtedness. . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.5. Obligations of the Company Unconditional. . . . . . . . . . . 62
SECTION 11.6. Trustee Entitled to Assume Payments Not Prohibited in Absence
of Notice. . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 11.7. Application by Trustee of Assets Deposited with It. . . . . . 63
SECTION 11.8. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Indebtedness. . . . . . . . 64
SECTION 11.9. Securityholders Authorize Trustee to Effectuate Subordination
of Securities. . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 11.10. Right of Trustee to Hold Senior Indebtedness . . . . . . . . . 64
SECTION 11.11. Article XI Not to Prevent Events of Default. . . . . . . . . . 65
SECTION 11.12. No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE XII. CONVERSION OF SECURITIES . . . . . . . . . . . . . . . . . . . . 65
SECTION 12.1. Conversion Privilege . . . . . . . . . . . . . . . . . . . . . 65
SECTION 12.2. Exercise of Conversion Privilege . . . . . . . . . . . . . . . 66
SECTION 12.3. Fractional Interests . . . . . . . . . . . . . . . . . . . . . 67
SECTION 12.4. Conversion Price . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 12.5. Adjustment of Conversion Price . . . . . . . . . . . . . . . . 68
SECTION 12.6. Continuation of Conversion Privilege in Case of
Reclassification, Merger, Consolidation or Sale of Assets. . 74
SECTION 12.7. Notice of Certain Events . . . . . . . . . . . . . . . . . . . 75
SECTION 12.8. Taxes on Conversion. . . . . . . . . . . . . . . . . . . . . . 76
SECTION 12.9. Company to Provide Stock . . . . . . . . . . . . . . . . . . . 77
SECTION 12.10. Disclaimer of Responsibility for Certain Matters . . . . . . . 77
SECTION 12.11. Return of Funds Deposited for Redemption of Converted
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 78
ARTICLE XIII. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 13.1. TIA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 13.2. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 13.3. Communications by Holders with Other Holders . . . . . . . . . 79
SECTION 13.4. Certificate and Opinion as to Conditions Precedent . . . . . . 79
SECTION 13.5. Statements Required in Certificate or Opinion. . . . . . . . . 79
SECTION 13.6. Rules by Trustee, Paying Agent, Registrar. . . . . . . . . . . 80
SECTION 13.7. Payment Dates. . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 13.8. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 80
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SECTION 13.9. No Adverse Interpretation of Other Agreements . . . . . . . . 80
SECTION 13.10. No Recourse Against Others. . . . . . . . . . . . . . . . . . 80
SECTION 13.11. Successors. . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 13.12. Duplicate Originals. . . . . . . . . . . . . . . . . . . . . 81
SECTION 13.13. Severability. . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 13.14. Table of Contents, Headings, Etc. . . . . . . . . . . . . . . 81
EXHIBITS
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EXHIBIT A Form of Security. . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B Investor Letter of Representation . . . . . . . . . . . . . . . B-1
EXHIBIT C Form of Conversion Notice . . . . . . . . . . . . . . . . . . . C-1
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INDENTURE, dated as of May 27, 1998, between GETTY IMAGES, INC. a
Delaware corporation (the "Company"), and THE BANK OF NEW YORK, a New York
banking corporation, as Trustee."
Each party hereto agrees as follows for the benefit of each other party
and for the equal and ratable benefit of the Holders of the Company's 4.75%
Convertible Subordinated Notes due 2003.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. DEFINITIONS.
"Acceleration Notice" shall have the meaning specified in Section 6.2.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
For purposes of this definition, the term "control" means the power to direct
the management and policies of a Person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by
contract, or otherwise.
"Agent" means any Registrar, Paying Agent or co-Registrar or any
successor thereto.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar Federal,
state or foreign law for the relief of debtors.
"beneficial owner" for purposes of the definition of Change of
Control has the meaning attributed to it in Rules 13d-3 and 13d-5 under the
Exchange Act (as in effect on the Issue Date), whether or not applicable,
except that a "Person" shall be deemed to have "beneficial ownership" of all
shares that any such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time or upon the
occurrence of certain events.
"Board of Directors" means, with respect to any Person, the Board
of Directors of such Person or any committee of the Board of Directors of
such Person authorized, with respect to any particular matter, to exercise
the power of the Board of Directors of such Person.
"Board Resolution" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such Person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New
York, New York, are authorized or obligated by law or executive order to
close.
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"Capital Stock" means, with respect to any corporation, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that corporation.
"Capitalized Lease Obligation" means, as to any Person, the
obligation of such Person to pay rent or other amounts under a lease to which
such Person is a party that is required to be classified and accounted for as
a capital lease obligation under GAAP.
"Cash" means such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of public and
private debts.
"Change of Control" means:
(i) an event or series of events as a result of which any "person" or
"group" (as such terms are used in Sections 13(d)(3) and 14(d) of the
Exchange Act) (excluding the Company or any wholly-owned subsidiary
thereof) is or becomes, directly or indirectly, the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, whether or not
applicable) of more than 50% of the combined voting power of the then
outstanding securities entitled to vote generally in elections of
directors, managers or trustees, as applicable, of the Company or any
successor entity ("Voting Stock"); or
(ii) the completion of any consolidation with or merger of the
Company into any other Person, or conveyance, transfer or lease by the
Company of all or substantially all of its assets to any Person, or any
merger of any other Person into the Company in a single transaction or
series of related transactions, and, in the case of any such transaction or
series of related transactions, the outstanding Common Stock of the Company
is changed or exchanged as a result, unless the stockholders of the Company
immediately before such transaction own, directly or indirectly,
immediately following such transaction, at least a majority of the combined
voting power of the outstanding Voting Stock of the Person resulting from
such transaction in substantially the same proportion as their ownership of
the Voting Stock immediately before such transaction;
provided that a Change of Control shall not be deemed to have occurred if the
Last Sale Price of the Common Stock for any five Trading Days during the 10
Trading Days immediately preceding the Change of Control is at least equal to
105% of the Conversion Price in effect on each such trading day.
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"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the Company's common stock, par value $.01 per
share, or as such stock may be reconstituted from time to time.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to the Indenture, and thereafter means such
successor.
"Conversion Price" shall have the meaning specified in Section 12.4.
"Conversion Shares" shall have the meaning specified in Section
12.5(1).
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Date of Conversion" shall have the meaning specified in Section
12.2.
"Default" means any event or condition that, after notice or
passage of time or both would be, an Event of Default.
"Defaulted Interest" shall have the meaning specified in Section
2.12.
"Definitive Securities" means Securities that are in the form of
Security attached hereto as Exhibit A that do not include the information
called for by footnotes 1 and 2 thereof.
"Depositary" means, with respect to the Securities issuable or
issued in whole or in part in global form, the Person specified in Section
2.3 as the Depositary with respect to the Securities, until a successor shall
have been appointed and become such pursuant to the applicable provision of
this Indenture, and, thereafter, "Depositary" shall mean or include such
successor.
"Designated Senior Indebtedness" means the Company's obligations
under its revolving credit facility, dated 9th February 1998, with Midland
Bank plc, and the Company's obligations under any other Senior Indebtedness
in which the instrument creating or evidencing the same or any assumption or
guarantee thereof (or related agreements or documents to which the Company is
a party) expressly provides that such Senior Indebtedness shall be
"Designated Senior Indebtedness" for the purposes of this Indenture; provided
that any such instrument, agreement or other document may place limitations
and conditions on the rights of the holders of such Senior Indebtedness to
exercise the rights of the holders of Designated Senior Indebtedness.
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"Disqualified Capital Stock" means, with respect to the Company,
Capital Stock of the Company that, by its terms or by the terms of any
security into which it is convertible, exercisable or exchangeable, is, or
upon the happening of an event or the passage of time would be, required to
be redeemed or repurchased (including at the option of the holder thereof) by
the Company, in whole or in part, on or prior to the Stated Maturity of the
Notes, provided that only the portion of such Capital Stock which is so
convertible, exercisable, exchangeable or redeemable or subject to repurchase
prior to such Stated Maturity shall be deemed to be Disqualified Capital
Stock.
"Distribution Date" shall have the meaning specified in Section 12.5.
"DTC" shall have the meaning specified in Section 2.3.
"Event of Default" shall have the meaning specified in Section 6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Expiration Date" shall have the meaning specified in Section 12.5.
"GAAP" means United States generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board
("FASB") or in such other statements by such other entity as approved by a
significant segment of the accounting profession which are in effect in the
United States.
"Global Security" means a Security that contains the paragraph
referred to in footnote 1 and the additional schedule referred to in footnote
2 to the form of Security attached hereto as Exhibit A. There shall be one
or more Global Securities to evidence interests in the Securities held (x) by
"qualified institutional buyers", as defined in Rule 144A under the
Securities Act, and (y) by institutional "accredited investors" as defined in
Rule 501(a)(1), (2), (3) or (7) under Regulation D of the Securities Act.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Indebtedness" of any Person means, without duplication, (a) all
liabilities and obligations, contingent or otherwise, of any such Person, (i)
in respect of borrowed money (whether or not the lender has recourse to all
or any portion of the assets of such Person), (ii) evidenced by credit or
loan agreements, bonds, notes, debentures or similar
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instruments (including, without limitation, notes or similar instruments
given in connection with the acquisition of any business, properties or
assets of any kind), (iii) evidenced by bankers' acceptances or similar
instruments issued or accepted by banks, (iv) for the payment of money
relating to a Capitalized Lease Obligation, or (v) evidenced by a letter of
credit or reimbursement obligation of such Person with respect to any letter
of credit; (b) all obligations 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);
(c) all net obligations of such Person under Interest Swap and Hedging
Obligations; (d) all liabilities of others of the kind described in the
preceding clause (a), (b) or (c) that such Person has guaranteed or that is
otherwise its legal liability, or which is secured by a lien on property of
such Person; and (e) any and all deferrals, renewals, extensions,
modifications, replacements, restatements, refinancings and refundings
(whether direct or indirect) of, or any indebtedness or obligation issued in
exchange for, any liability of the kind described in any of the preceding
clauses (a), (b), (c) or (d), or this clause (e), whether or not between or
among the same parties.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"interest" means and includes stated interest on the Securities
and, to the extent applicable, Liquidated Damages.
"Institutional Accredited Investor" means any Person that is an
institutional "accredited investor" as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act.
"Initial Purchasers" means the Persons designated as such in the
Purchase Agreement.
"Interest Payment Date" means the stated due date of an installment
of interest on the Securities.
"Interest Swap and Hedging Obligations" means the obligations of
any Person under any interest rate protection agreement, interest rate future
agreement, interest rate option agreement, interest rate swap agreement,
interest rate cap agreement or other interest rate hedge agreement, interest
rate collar agreement or other similar agreement or arrangement to which such
Person is a party or beneficiary.
"Issue Date" means the date of first issuance of the Securities
under this Indenture.
"Junior Securities" means any Qualified Capital Stock and any
Indebtedness of the Company that is at least as subordinated in right of
payment to Senior Indebtedness as the Securities and has no scheduled
installment of principal due,
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by redemption, sinking fund payment or otherwise, on or prior to the Stated
Maturity of the Securities.
"Last Sale Price" shall have the meaning specified in Section 12.3.
"Lien" means any mortgage, lien, pledge, charge, security interest
or other encumbrance of any kind, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement and any lease deemed to constitute a security interest
and any option or other agreement to give any security interest).
"Liquidated Damages" shall have the meaning specified in the
Registration Rights Agreement.
"non-electing share" shall have the meaning specified in Section
12.6.
"Non-Payment Default" shall have the meaning specified in Section
11.2.
"Notice of Default" shall have the meaning specified in Section
6.1(3).
"Offer" shall have the meaning specified in Section 12.5.
"Officer" means, with respect to the Company, the Chairman or any
Co-Chairman, the Chief Executive Officer, the President, any Vice President,
the Chief Financial Officer, the Treasurer, the Controller or the Secretary
of the Company.
"Officers' Certificate" means, with respect to the Company, a
certificate signed by two Officers or by an Officer and an Assistant
Secretary of the Company and otherwise complying with the requirements of
Section 2.2, if applicable, and the applicable provisions of Sections 13.4
and 13.5.
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee and which complies with the
applicable requirements of Sections 13.4 and 13.5.
"Paying Agent" shall have the meaning specified in Section 2.3.
"Payment Blockage Notice" shall have the meaning specified in
Section 11.2.
"Payment Blockage Period" shall have the meaning specified in
Section 11.2.
"Payment Default" shall have the meaning specified in Section 11.2.
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"Person" means any corporation, individual, limited liability
company, joint stock company, joint venture, partnership, unincorporated
association, governmental regulatory entity, country, state or political
subdivision thereof, trust, municipality or other entity.
"PORTAL Market" means the Private Offerings, Resales and Trading
through Automated Linkages Market operated by the National Association of
Securities Dealers, Inc. or any successor thereto.
"property" means any right or interest in or to property or assets
of any kind whatsoever, whether real, personal or mixed and whether tangible
or intangible.
"Purchase Agreement" means that certain Purchase Agreement, dated
May 20, 1998, by and among the Company and the Initial Purchasers, as such
agreement may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
"Purchased Shares" shall have the meaning specified in Section 12.5.
"Qualified Capital Stock" means any Capital Stock of the Company
that is not Disqualified Capital Stock.
"QIB" means a Person that is a "qualified institutional buyer" as
defined in Rule 144A under the Securities Act.
"Record Date" means a Record Date specified in the Securities
whether or not such Record Date is a Business Day.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to Article III of
this Indenture and the form of Security.
"Redemption Price," when used with respect to any Security to be
redeemed, means the redemption price for such redemption pursuant to
Paragraph 5 in the form of Security, which shall include, without
duplication, in each case, accrued and unpaid interest, if any, to and
including the Redemption Date.
"Registrar" shall have the meaning specified in Section 2.3.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated the date hereof, by and among the Initial Purchasers and the
Company, as such agreement may be amended, modified or supplemented from time
to time in accordance with the terms thereof.
"Repurchase Date" shall have the meaning specified in Section 10.1.
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"Repurchase Offer" shall have the meaning specified in Section 10.1.
"Repurchase Offer Period" shall have the meaning specified in
Section 10.1.
"Repurchase Price" shall have the meaning specified in Section 10.1.
"Repurchase Put Date" shall have the meaning specified in Section
10.1.
"Restricted Security" means a Security, unless or until it has been
(i) disposed of in a transaction effectively registered under the Securities
Act or (ii) distributed to the public pursuant to Rule 144 (or any similar
provision then in force) under the Securities Act.
"SEC" means the Securities and Exchange Commission and any other
Person hereafter succeeding to the duties thereof under the Securities Act,
the TIA or the Exchange Act.
"Securities" means, collectively, the 4.75% Convertible
Subordinated Notes due 2003, as supplemented from time to time in accordance
with the terms hereof, issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"Securities Custodian" means the Trustee, as custodian with respect
to the Securities in global form, or any successor entity thereto.
"Senior Indebtedness" means all obligations of the Company to pay
the principal of, premium, if any, interest (including all interest accruing
subsequent to the commencement of any bankruptcy or similar proceeding,
whether or not a claim for post-petition interest is allowable as a claim in
any such proceeding) on, and all fees, costs, expenses and other amounts
accrued or due on or in connection with, any Indebtedness of the Company,
whether outstanding on the date of this Indenture or thereafter created,
incurred, assumed, guaranteed or in effect guaranteed by the Company, unless
the instrument creating or evidencing such Indebtedness provides that such
Indebtedness is not senior or superior in right of payment to the Securities
or is pari passu with, or subordinated to, the Securities; provided that in
no event shall Senior Indebtedness include (a) Indebtedness of the Company
owed or owing to any Subsidiary of the Company or any officer, director or
employee of the Company or any Subsidiary of the Company, (b) Indebtedness
representing or with respect to any account payable or other accrued current
liability or obligation incurred in the ordinary course of business in
connection with the obtaining of materials or services or (c) any liability
for taxes owed or owing by the Company or any Subsidiary of the Company.
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"Shelf Registration Statement" shall have the meaning specified in
the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" of the Company within the meaning of Rule 1-02(w) of
Regulation S-X under the Securities Act promulgated by the Commission as in
effect as of the date of the Indenture.
"Special Record Date" for payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 2.12.
"Stated Maturity" when used with respect to any Security, means
June 1, 2003.
"Subsidiary" with respect to any Person, means (i) a corporation a
majority of whose Capital Stock with voting power normally entitled to vote
in the election of directors is at the time, directly or indirectly, owned by
such Person, by such Person and one or more Subsidiaries of such Person or by
one or more Subsidiaries of such Person, (ii) a partnership in which such
Person or a Subsidiary of such Person is, at the time, a general partner and
owns alone or together with one or more Subsidiaries of such Person a
majority of the partnership interests, or (iii) any other Person (other than
a corporation) in which such Person, one or more Subsidiaries of such Person,
or such Person and one or more Subsidiaries of such Person, directly or
indirectly, at the date of determination thereof, has at least majority
ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa- 77bbbb) as in effect on the date of the execution of this
Indenture unless otherwise specified herein.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which securities are not traded on the NASDAQ
National Market (or, if the Common Stock is not admitted to trading thereon,
on the principal national securities exchange on which the Common Stock is at
the time listed or admitted to trading).
"Transfer Restricted Securities" means Securities that bear or are
required to bear the legend set forth in Section 2.6 hereof.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer within the corporate trust
division (or any successor group) of the Trustee or any other officer of the
Trustee customarily performing functions similar to those performed by the
Persons who at that time shall be such officers, and also means, with respect
to a particular corporate trust matter, any other
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officer of the Trustee to whom such trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"U.S. Government Obligations" means direct non-callable obligations
of, or non-callable obligations that are fully guaranteed by, the United
States of America, for the payment of which obligation or guarantee the full
faith and credit of the United States of America is pledged.
"Voting Stock" means the then outstanding securities entitled to
vote generally in elections of directors, managers or trustees, as
applicable, of the Company or any successor entity.
SECTION 1.2. INCORPORATION BY REFERENCE OF TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture securityholder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and
not otherwise defined herein have the meanings assigned to them thereby.
SECTION 1.3. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
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(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(7) references to Sections or Articles mean references to such
Section or Article in this Indenture, unless stated otherwise; and
(8) references to statutes or regulations include successor
provisions thereto and recodifications thereof unless the context otherwise
expressly requires.
ARTICLE II.
THE SECURITIES
SECTION 2.1. FORM AND DATING.
The Securities and the Trustee's certificate of authentication in
respect thereof, shall be substantially in the form of Exhibit A hereto,
which Exhibit is part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Company shall approve the form of the Securities and any notation, legend or
endorsement on them. Any such notations, legends or endorsements not
contained in the form of Security attached as Exhibit A hereto shall be
delivered in writing to the Trustee. Each Security shall be dated the date
of its authentication.
The terms and provisions contained in the forms of Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to
the extent applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and
to be bound thereby.
Every Security shall bear interest from the date of initial
issuance, at the annual rate as specified on the face of the Form of Note
attached as Exhibit A hereto. Interest on Securities shall be paid on June 1
and December 1, commencing December 1, 1998, to Holders of record at the
close of business on the immediately preceding Record Date unless redeemed,
repurchased or converted earlier pursuant to the terms of this Indenture.
Interest on the Securities shall be computed on the basis of a 360-day year
comprised of twelve 30 day months.
The Person in whose name any Security (or its predecessor Security)
is registered at the close of business on any Record Date with respect to any
Interest Payment Date (including any security that is converted after the
Record Date and on or before the Interest Payment Date) shall be
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entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Security upon any transfer, exchange
or conversion subsequent to the Record Date and on or prior to such Interest
Payment Date. Interest may, at the option of the Company, be paid by check
mailed to the address of such Person on the Security register; provided that,
with respect to any Holder of Securities with an aggregate principal amount
equal to or in excess of $5,000,000, at the request of such Holder in writing
to the Company at least fifteen (15) days prior to the date set for payment
of interest (who shall then furnish written notice to such effect to the
Trustee), interest on such Holder's Securities shall be paid by wire transfer
in immediately available funds in accordance with the wire transfer
instructions supplied by such Holder to the Trustee and paying agent (if
different from the Trustee).
SECTION 2.2. EXECUTION AND AUTHENTICATION.
Two Officers shall sign, or one Officer shall sign and one Officer
shall attest to, the Securities for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Security was an Officer at
the time of such execution but no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless
and the Company shall nevertheless be bound by the terms of the Securities
and this Indenture.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security, but
such signature shall be conclusive evidence that the Security has been
authenticated pursuant to the terms of this Indenture.
The Trustee shall authenticate the Securities for original issue in
the aggregate principal amount of up to $86,250,000 upon receipt of one or
more written orders of the Company in the form of an Officers' Certificate.
The Officers' Certificate shall specify the amount of Securities to be
authenticated and the date on which the Securities are to be authenticated.
The aggregate principal amount of Securities outstanding at any time may not
exceed $86,250,000, except as provided in Section 2.7; provided, that
Securities in excess of $75,000,000 shall not be issued other than pursuant
to the over-allotment option granted by the Company to the Initial Purchasers
as provided in the Purchase Agreement. Upon the written order of the Company
in the form of an Officers' Certificate, the Trustee shall authenticate
Securities in substitution of Securities originally issued to reflect any
name change of the Company; provided, however, that in connection with the
Company order for authentication of Securities dated the date hereof, the
Officers' Certificate and Opinion of Counsel pursuant to Section 13.4 shall
not be required.
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The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company, any Affiliate of the
Company, or any of their respective Subsidiaries.
Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 2.3. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where Securities may be presented for
registration of transfer, conversion or for exchange ("Registrar") and an
office or agency where Securities may be presented for payment ("Paying
Agent") and where notices and demands to or upon the Company in respect of
the Securities may be served. The Company may act as Registrar or Paying
Agent, except that, for the purposes of Articles III, VIII and X and as
otherwise specified in the Indenture, neither the Company nor any Affiliate
of the Company shall act as Paying Agent. The Registrar shall keep a
register of the Securities and of their transfer and exchange and conversion.
The Company may have one or more co-Registrars and one or more additional
Paying Agents. The term "Paying Agent" includes any additional Paying Agent.
The Company hereby initially appoints the Trustee as Registrar, Paying Agent
and conversion agent, and the Trustee hereby initially agrees so to act.
The Company shall enter into an appropriate written agency
agreement with any Agent not a party to this Indenture, which agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall promptly notify the Trustee in writing of the name and address
of any such Agent. If the Company fails to maintain a Registrar or Paying
Agent, the Trustee shall act as such.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as Securities
Custodian with respect to the Global Securities.
SECTION 2.4. PAYING AGENT TO HOLD ASSETS IN TRUST.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that each Paying Agent shall hold in trust for the
benefit of Holders and the Trustee all assets held by the Paying Agent for
the payment of any amounts due on the Securities (whether such assets have
been delivered to it by the Company or any other obligor on the
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Securities), and shall notify the Trustee in writing of any Default in making
any such payment. If either of the Company or a Subsidiary of the Company
acts as Paying Agent, it shall segregate such assets and hold them as a
separate trust fund for the benefit of the Holders and the Trustee. The
Company at any time may require a Paying Agent to deliver all assets held by
it to the Trustee and account for any assets disbursed and the Trustee may at
any time during the continuance of any payment Default, upon written request
to a Paying Agent, require such Paying Agent to deliver all assets held by it
to the Trustee and to account for any assets delivered to it. Upon delivery
to the Trustee of all assets that shall have been delivered by the Company to
the Paying Agent, the Paying Agent (if other than the Company or an Affiliate
of the Company) shall have no further liability for such assets.
SECTION 2.5. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Holders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee on or before the third Business Day preceding each Interest
Payment Date and at such other times as the Trustee may request in writing a
list in such form and as of such date as the Trustee reasonably may require
of the names and addresses of Holders.
SECTION 2.6. TRANSFER AND EXCHANGE.
(a) GLOBAL SECURITIES. So long as the Securities are eligible for
book-entry settlement with the Depositary, unless otherwise required by law,
all Securities (i) to be traded on the PORTAL Market or (ii) sold (A) to a
QIB or (B) to an Institutional Accredited Investor that, prior to such
transfer, is required to furnish to the Trustee a signed letter containing
certain representations and agreements relating to the restrictions on
transfer of the Security ("Investment Letter"), shall be represented by one
or more Global Securities registered in the name of the Depositary or the
nominee of the Depositary. The transfer and exchange of beneficial interests
in any Global Security, which does not involve the issuance of a Security in
certificated form, shall be effected through the Depositary, in accordance
with this Indenture (including restrictions on transfer set forth herein) and
the procedures of the Depositary therefor.
At any time at the request of the beneficial owner of an interest
in Global Security to obtain a Security in certificated form, such beneficial
owner shall be entitled to obtain a Security in certificated form upon
written request to the Trustee in accordance with the standing instructions
and procedures existing between the Trustee and Depositary for the issuance
thereof. Upon receipt of any such request, the Trustee will cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Trustee, the aggregate principal amount of the Global
Security to be reduced by the principal amount of the Security issued in
certificated form upon such request to such
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beneficial owner and, following such reduction, the Company will execute and
the Trustee will authenticate and make available for delivery to such
beneficial owner (or its nominee) a Security or Securities in certificated
form in the appropriate aggregate principal amount in the name of such
beneficial owner (or its nominee) as the Holder thereof and bearing such
restrictive legends as may be required by this Indenture.
Any transfer of a beneficial interest in the Global Security which
cannot be effected through book-entry settlement must be effected by the
delivery to the transferee (or its nominee) of a Security or Securities in
certificated form registered in the name of the transferee (or its nominee)
on the books maintained by the Registrar in accordance with the transfer
restrictions set forth herein. With respect to any such transfer, the
Trustee will cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Trustee, the aggregate
principal amount of the Global Security to be reduced by the principal amount
of the respective beneficial interest in the Global Security being
transferred and, following such reduction, the Company will execute and the
Trustee will authenticate and make available for delivery to the transferee
(or such transferee's nominee, as the case may be), a Security or Securities
in certificated form (bearing such restrictive legends as may be required by
this Indenture) in the appropriate aggregate principal amount in the name of
such transferee (or its nominee) as the Holder thereof may request.
(b) TRANSFER. So long as the Securities are eligible for
book-entry settlement, or unless otherwise required by law, upon any transfer
of a Security in certificated form to a QIB in accordance with Rule 144A or
an Institutional Accredited Investor that is required to deliver an
Investment Letter, and upon receipt of the Security or Securities in
certificated form being so transferred, together with a certification from
the transferor that the transferee is a QIB or an Institutional Accredited
Investor (and, in the case of an Institutional Accredited Investor, that such
transferee has delivered an Investment Letter), the Trustee shall make an
endorsement on the Global Security to reflect an increase in the aggregate
principal amount of the Securities represented by the Global Security, and
the Trustee shall cancel such Security or Securities in certificated form and
cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Trustee, the aggregate principal amount of
Securities represented by the Global Security to be increased accordingly;
provided that no Security in certificated form, or portion thereof, in
respect of which the Company or an Affiliate of the Company held any
beneficial interest shall be included in the Global Security until such
Security in certificated form is freely tradable in accordance with Rule
144(k) and provided, further, that the Trustee shall issue Securities in
certificated form upon any transfer of a beneficial interest in the Global
Security to the Securities or an Affiliate of the Company."
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Any Global Security may be endorsed with or have incorporated in
the text thereof such legends or recitals or changes not inconsistent with
the provisions of this Indenture as may be required by the Depositary or by
the National Association of Securities Dealers, Inc. in order for the
Securities to be tradable on the PORTAL Market or as may be required for the
Securities to be tradable on any other market developed for trading of
securities pursuant to Rule 144A under the Securities Act or required to
comply with any applicable law or any regulation thereunder or with the rules
and regulations of any securities exchange or automated quotation system upon
which the Securities may be listed or traded or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions
to which any particular Securities are subject.
(c) LEGEND ON SECURITIES. Every Security that bears or is
required under this Section 2.6(c) to bear the legend set forth in this
Section 2.6(c) (together with any Common Stock issued upon conversion of the
Securities and required to bear the legend set forth in Section 2.6(d)),
shall be subject to the restrictions on transfer set forth in this Section
2.6(c) (including those set forth in the legend set forth below) unless such
restrictions on transfer shall be waived by written consent of the Company
(with written notice to the Trustee), and the Holder of each such Restricted
Security, by such Securityholder's acceptance thereof, agrees to be bound by
all such restrictions on transfer. As used in Section 2.6(c) and 2.6(d), the
term "transfer" encompasses any sale, pledge, transfer or other disposition
whatsoever of any Restricted Security.
Until two years after the original issuance date of any Security,
any certificate evidencing such Security (and all Securities in exchange
therefor or substitution thereof, other than Common Stock, if any, issued
upon conversion thereof, which shall bear the legend set forth in Section
2.6(d), if applicable) shall bear a legend in substantially the following
form, unless otherwise agreed by the Company in writing, with written notice
thereof to the Trustee:
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD, EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF, THE HOLDER: (1) REPRESENTS THAT (A) IT IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN COMPLIANCE WITH RULE 144A OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER
THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR"); (2) AGREES THAT
IT WILL NOT PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(k)
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UNDER THE SECURITIES ACT (THE "RESTRICTION TERMINATION DATE") RESELL OR
OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK
ISSUABLE UPON CONVERSION OF SUCH SECURITY EXCEPT (A) TO THE COMPANY OR
ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE,
AS APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY
EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRUSTEE OR A SUCCESSOR TRUSTEE, AS APPLICABLE), (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM REGISTRATION PROVIDED UNDER THE SECURITIES ACT,
OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE
AT THE TIME OF SUCH TRANSFER); 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
BEFORE THE RESTRICTION TERMINATION DATE, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THIS SECURITY TO THE BANK OF NEW YORK, AS TRUSTEE
(OR A SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFER IS
PURSUANT TO CLAUSE (C) OR (D) ABOVE, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR
TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS IT 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 UPON THE EARLIER OF THE TRANSFER OF THE
SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE 2(E) ABOVE OR UPON THE
RESTRICTION TERMINATION DATE.
Any Security (or security issued in exchange or substitution therefor)
as to which such restrictions on transfer shall have expired in accordance with
their terms or as to which the conditions for removal of the foregoing legend
set forth therein have been satisfied may, upon surrender of such Security for
exchange to the Registrar in accordance with the provisions of this Section 2.6,
be exchanged for a new Security or Securities, of like tenor and aggregate
principal amount and authorized denominations, which shall not bear the
restrictive legend required by this Section 2.6(c).
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Notwithstanding any other provisions of this Indenture (other than
the provisions set forth in the second paragraph of Section 2.6(a) and in
this Section 2.6(c)), a Global Security may not be transferred as a whole or
in part except by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary.
The Depositary shall be a clearing agency registered under the
Exchange Act. The Company initially appoints The Depository Trust Company to
act as Depositary with respect to the Global Securities. Initially, the
Global Security shall be issued to the Depositary, registered in the name of
Cede & Co., as the nominee of the Depositary, and deposited with the
Securities Custodian on behalf of Cede & Co.
The Trustee is hereby authorized and requested to execute and
deliver a Letter of Representation to the Depositary and, in connection with
any successor nominee for the Depositary or any successor Depositary, enter
into comparable arrangements, and shall have the same rights with respect to
its actions thereunder as it has with respect to its actions under this
Indenture.
If at any time the Depositary for the Global Security notifies the
Company that it is unwilling or unable to continue as Depositary for the
Security, the Company may appoint a successor Depositary with respect to such
Security. If a successor Depositary is not appointed by the Company within
90 days after the Company receives such notice, the Company will execute, and
the Trustee, upon receipt of an Officers' Certificate for the authentication
and delivery of Securities, will authenticate and make available for
delivery, Securities in certificated form, in an aggregate principal amount
equal to the outstanding principal amount of the Global Security, in exchange
for the Global Security.
If a Security in certificated form is issued in exchange for any
portion of a Global Security after the close of business at the office or
agency where such exchange occurs on any Record Date and before the opening
of business at such office or agency on the next succeeding Interest Payment
Date, interest will not be payable to the Holder on such Interest Payment
Date in respect of such Security, but will be payable on such Interest
Payment Date only to the Person to whom interest in respect of such portion
of such Global Security is payable in accordance with the provisions of this
Indenture.
Securities in certificated form issued in exchange for all or a
part of a Global Security pursuant to this Section 2.6 shall be registered in
such names and in such authorized denominations as the Depositary, pursuant
to instruction from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. Upon execution and authentication, the
Trustee shall make such Securities available for delivery in certificated
form to the
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Person in whose names such Securities in certificated form are so registered.
At such time as all interests in a Global Security have been
redeemed, repurchased, converted, canceled, exchanged for Securities in
certificated form, or transferred to a transferee who receives Securities in
certificated form, such Global Security shall, upon receipt thereof, be
canceled by the Trustee. At any time prior to such cancellation, if any
interest in a Global Security is exchanged for Securities in certificated
form, redeemed, converted, repurchased or canceled, or transferred to a
transferee who receives Securities in certificated form therefor or any
Security in certificated form is exchanged or transferred for part of a
Global Security, the principal amount of such Global Security shall, in
accordance with the standing procedures and instructions existing between the
Depositary and the Custodian, be appropriately reduced or increased, as the
case may be, and an endorsement shall be made on such Global Security, by the
Trustee, to reflect such reduction or increase. In the event of any transfer
of any beneficial interest between one Global Security and another in
accordance with the standing procedures and instructions between the
Depositary and the Trustee and the transfer restrictions required herein, the
aggregate principal amount of each Global Security shall be appropriately
increased or decreased, as the case may be, and an endorsement shall be made
on each Global Security by the Trustee or the Securities Custodian, at the
direction of the Trustee, to reflect such reduction or increase.
(d) LEGEND ON COMMON STOCK. Until two years after the original
issuance date of any Security, any stock certificate representing Common
Stock issued upon conversion of such Security shall bear a legend in
substantially the following form, unless such Common Stock has been
transferred pursuant to a registration statement that has been declared
effective under the Securities Act (and which continues to be effective at
the time of such transfer) or such Common Stock has been issued upon
conversion of Securities that have been transferred pursuant to a
registration statement that has been declared effective under the Securities
Act, or unless otherwise agreed by the Company in writing with written notice
thereof to the transfer agent:
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD, EXCEPT
AS SET FORTH IN THE FOLLOWING SENTENCE.
THE HOLDER HEREOF AGREES THAT UNTIL THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE
144(k) UNDER THE SECURITIES ACT (THE "RESTRICTION TERMINATION DATE"):
(1)IT WILL NOT RESELL OR OTHERWISE TRANSFER THE COMMON STOCK EVIDENCED
HEREBY
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EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN COMPLIANCE WITH RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE BANK OF
NEW YORK, AS TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT, AS
APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE COMMON STOCK
EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRANSFER AGENT OR A SUCCESSOR TRANSFER AGENT, AS APPLICABLE), (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION PROVIDED UNDER
THE SECURITIES ACT, OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER); (2) PRIOR TO
SUCH TRANSFER BEFORE THE RESTRICTION TERMINATION DATE (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE 1(E) ABOVE), IT WILL FURNISH THE BANK OF NEW
YORK, AS TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT, AS APPLICABLE),
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT 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 AND (3) IT WILL DELIVER
TO EACH PERSON TO WHOM THE COMMON STOCK EVIDENCED HEREBY IS TRANSFERRED
(OTHER THAN A TRANSFER PURSUANT TO CLAUSE 1(E) ABOVE) A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE
COMMON STOCK EVIDENCED HEREBY PURSUANT TO CLAUSE 1(E) ABOVE OR UPON THE
RESTRICTION TERMINATION DATE.
Any such Common Stock as to which such restrictions on transfer
shall have expired in accordance with their terms or as to which the
conditions for removal of the foregoing legend set forth therein have been
satisfied may, upon surrender of the certificates representing such shares of
Common Stock for exchange in accordance with the procedures of the transfer
agent for the Common Stock, be exchanged for a new certificate or
certificates for a like number of shares of Common Stock, which shall not
bear the restrictive legend required by this Section 2.6(d).
(e) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL SECURITY. At such
time as all beneficial interests in a Global Security have either been
exchanged for Definitive Securities, redeemed, repurchased or canceled, such
Global Security shall be returned to or retained and canceled by the Trustee.
At any time prior to such cancellation, if any beneficial interest in a
Global Security is exchanged for Definitive Securities, redeemed, repurchased
or canceled, the
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principal amount of Securities represented by such Global Security shall be
reduced and an endorsement shall be made on such Global Security, by the
Trustee or the Securities Custodian, at the direction of the Trustee, to
reflect such reduction.
(f) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF
DEFINITIVE SECURITIES AND GLOBAL SECURITIES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Definitive
Securities and Global Securities at the Registrar's or co-Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any transfer tax, assessments, or similar governmental charge
payable in connection therewith (other than any such transfer taxes,
assessments, or similar governmental charge payable upon exchanges or
transfers pursuant to Section 2.2 (fourth paragraph), 2.10, 3.7, 9.5 or 10.1
(final paragraph)).
(iii) The Registrar or co-Registrar shall not be required to
register the transfer or exchange of (a) any Definitive Security selected for
redemption in whole or in part pursuant to Article III, except the unredeemed
portion of any Definitive Security being redeemed in part, (b) any Security
for a period beginning 15 days before the mailing of a notice of a Repurchase
Offer pursuant to Article X hereof or the mailing of a notice of redemption
of Securities pursuant to Article III hereof and ending at the close of
business on the day of such mailing or (c) any Security or portion thereof
surrendered for conversion pursuant to Article XII.
Each Holder of a Security agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Security in violation of any provision of this
Indenture and/or applicable United States federal or state securities law.
The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under
this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture (including to the extent such
requirement is at the discretion of the Company), and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
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SECTION 2.7. REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims and submits an affidavit or other evidence,
satisfactory to the Trustee, to the Trustee to the effect that the Security
has been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Security (bearing a number not
contemporaneously outstanding) if the Trustee's requirements are met. Such
Holder must provide an indemnity bond or other indemnity, sufficient in the
judgment of both the Company and the Trustee, to protect the Company, the
Trustee or any Agent from any loss which any of them may suffer if a Security
is replaced. The Company may charge such Holder for its reasonable,
out-of-pocket expenses in replacing a Security.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion,
but subject to any conversion rights, may, instead of issuing a new Security,
pay such Security, upon satisfaction of the conditions set forth in the
preceding paragraph.
Every new Security issued pursuant to this Section 2.7 in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and such new Security shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.
The provisions of this Section 2.7 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies of any Holder with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 2.8. OUTSTANDING SECURITIES.
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee (including any Security represented by a
Global Security) except those canceled by it, those delivered to it for
cancellation or conversion, those paid pursuant to Section 2.7, those
reductions in the interest in a Global Security effected by the Trustee
hereunder and those described in this Section 2.8 as not outstanding. A
Security does not cease to be outstanding because the Company or an Affiliate
of the Company holds the Security, except as provided in Section 2.9.
If a Security is replaced pursuant to Section 2.7 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced
Security is held by a protected purchaser. A mutilated Security ceases to be
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outstanding upon surrender of such Security and replacement thereof pursuant
to Section 2.7.
If on a Redemption Date the Paying Agent (other than the Company or
an Affiliate of the Company) holds Cash or U.S. Government Obligations
sufficient to pay all of the principal and interest due on the Securities
payable on that date in accordance with Section 3.6 hereof and payment of the
Securities called for redemption is not otherwise prohibited pursuant to
Article XI hereof or otherwise, then on and after that date such Securities
cease to be outstanding and interest on them ceases to accrue.
SECTION 2.9. TREASURY SECURITIES.
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, amendment, supplement, waiver
or consent, Securities owned by the Company or an Affiliate of the Company
shall be disregarded, except that, for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, amendment,
supplement, waiver or consent, only Securities that a Trust Officer of the
Trustee actually knows are so owned shall be disregarded.
SECTION 2.10. TEMPORARY SECURITIES.
Pending the preparation of Definitive Securities in certificated
form, the Company may execute and the Trustee or an authenticating agent
appointed by the Trustee shall, upon the written request of the Company,
authenticate and make available for delivery, temporary Securities.
Temporary Securities shall be issuable in any authorized denomination, and
substantially in the form of the Definitive Securities in certificated form,
but with such omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Company.
Every such temporary Security shall be executed by the Company and
authenticated by the Trustee or such authenticating agent upon the same
conditions and in substantially the same manner, and with the same effect, as
the Definitive Securities in certificated form. Without unreasonable delay
the Company will execute and deliver to the Trustee or such authenticating
agent Definitive Securities in certificated form (other than in the case of
Securities in global form) and thereupon any or all temporary Securities
(other than in the case of Securities in global form) may be surrendered in
exchange therefor, at each office or agency maintained by the Company
pursuant to Section 4.2 and the Trustee or such authenticating agent shall
authenticate and make available for delivery in exchange for such temporary
Securities an equal aggregate principal amount of Definitive Securities in
certificated form. Such exchange shall be made by the Company at its own
expense and without any charge therefor.
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Until so exchanged, the temporary Securities shall in all respects
be entitled to the same benefits and subject to the same limitations under
this Indenture as Definitive Securities in certificated form authenticated
and delivered hereunder.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee, or at the direction of the Trustee, the Registrar or the Paying
Agent (other than the Company or an Affiliate of the Company), and no one
else, shall cancel and dispose of all Securities surrendered for transfer,
exchange, payment or cancellation in accordance with its customary practices,
unless otherwise requested by the Company; provided, however, that the
Trustee shall not be required to destroy such canceled Securities. Subject
to Section 2.7, the Company may not issue new Securities to replace
Securities that have been paid or delivered to the Trustee for cancellation.
No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section 2.11, except as expressly
permitted in the form of Securities and as permitted by this Indenture.
SECTION 2.12. INTEREST AND DEFAULTED INTEREST.
Interest and any Liquidated Damages on any Security which are
payable, and are punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one
or more predecessor Securities) is registered at the close of business on the
Record Date immediately preceding such Interest Payment Date.
Any interest or Liquidated Damages on any Security which are
payable, but are not punctually paid or duly provided for, on any Interest
Payment Date plus, to the extent lawful, any interest payable on such
defaulted amounts (collectively, herein called "Defaulted Interest") shall
forthwith cease to be payable to the registered Holder on the relevant Record
Date, and such Defaulted Interest shall be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their respective
predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of Cash equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to
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the Trustee for such deposit prior to the date of the proposed payment, such
Cash when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as provided in this clause (1).
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder at his
address as it appears in the Security register not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Securities (or their respective predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange or automated quotation system on which the Securities may be listed
or quoted and upon such notice as may be required by such exchange or
automated quotation system, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.12, each
Security delivered under this Indenture upon transfer of or in exchange for
or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such predecessor Security.
SECTION 2.13 CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; PROVIDED that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of
a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
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ARTICLE III.
REDEMPTION
SECTION 3.1. RIGHT OF REDEMPTION.
Redemption of Securities, as permitted by any provision of this
Indenture, shall be made in accordance with Paragraph 5 of the Securities and
this Article III. The Company will not have the right to redeem any
Securities prior to June 1, 2001. On or after June 1, 2001, the Company will
have the right to redeem all or any part of the Securities at the Redemption
Prices specified in Paragraph 5 of the Securities under the caption
"Redemption", in each case including accrued and unpaid interest and any
Liquidated Damages to, but excluding, the Redemption Date.
SECTION 3.2. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities, it shall notify the
Trustee in writing of the Redemption Date and the principal amount of
Securities to be redeemed and whether it wants the Trustee to give notice of
redemption to the Holders.
If the Company elects to reduce the principal amount of Securities
to be redeemed by crediting against any such redemption Securities it has not
previously delivered to the Trustee for cancellation, it shall so notify the
Trustee of the amount of the reduction and deliver such Securities with such
notice.
The Company shall give each notice to the Trustee provided for in
this Section 3.2 at least 45 days before the Redemption Date (unless a
shorter notice shall be satisfactory to the Trustee). Any such notice may be
canceled at any time prior to notice of such redemption being mailed to any
Holder and shall thereupon be void and of no effect.
SECTION 3.3. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the outstanding Securities are to be redeemed
on any Redemption Date, the Trustee shall select the Securities or portions
thereof to be redeemed by lot, on a pro rata basis or by such other method as
the Trustee shall determine to be fair and appropriate and in such manner as
complies with any applicable depositary, legal and stock exchange or
automated quotation system requirements.
The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption and shall promptly
notify the Company in writing of the Securities or portions thereof selected
for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed. Securities in
denominations of $1,000 may be redeemed only in whole. The Trustee may
select for redemption portions (equal to $1,000 or any integral multiple
thereof) of the principal of Securities that have denominations larger than
$1,000.
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Provisions of this Indenture that apply to Securities called for redemption
also apply to portions of Securities called for redemption.
SECTION 3.4. NOTICE OF REDEMPTION.
At least 20 days prior to a Redemption Date, the Company shall send
a notice of redemption to the Trustee and each Holder whose Securities are to
be redeemed. At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. Each notice
for redemption shall identify the Securities or portions thereof to be
redeemed and shall state:
(1) the Redemption Date, and that the Securities called for
redemption may not be converted after the close of business on the
Business Day immediately prior to the Redemption Date (unless the
Company defaults in the payment of the Redemption Price);
(2) the Redemption Price, including the amount of accrued and
unpaid interest and any Liquidated Damages to be paid upon such
redemption;
(3) the name, address and telephone number of the Paying Agent;"
(4) that Securities called for redemption must be surrendered to
the Paying Agent at the address specified in such notice to collect the
Redemption Price;
(5) that, unless (a) the Company defaults in its obligation to
deposit Cash with the Paying agent in accordance with Section 3.6 hereof
or (b) such redemption payment is prohibited pursuant to Article XI
hereof or otherwise, interest and any Liquidated Damages on Securities
called for redemption ceases to accrue on and after the Redemption Date
and the only remaining right of the Holders of such Securities is to
receive payment of the Redemption Price, including accrued and unpaid
interest and any Liquidated Damages to, but excluding, the Redemption
Date, upon surrender to the Paying Agent of the Securities called for
redemption and to be redeemed;
(6) if any Security is being redeemed in part, the portion of the
principal amount, equal to $1,000 or any integral multiple thereof, of
such Security to be redeemed and that, after the Redemption Date, and
upon surrender of such Security, a new Security or Securities in
aggregate principal amount equal to the unredeemed portion thereof will
be issued;
(7) if less than all the Securities are to be redeemed, the
identification of the particular Securities (or portions thereof) to be
redeemed, as
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well as the aggregate principal amount of such Securities to be redeemed
and the aggregate principal amount of Securities to be outstanding after
such partial redemption;
(8) the CUSIP number of the Securities to be redeemed; and
(9) that the notice is being sent pursuant to this Section 3.4 and
pursuant to the redemption provisions of Paragraph 5 of the Securities.
SECTION 3.5. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.4,
Securities called for redemption shall become due and payable on the
Redemption Date at the Redemption Price, including accrued and unpaid
interest and any Liquidated Damages to, but excluding, the Redemption Date.
Upon surrender to the Trustee or Paying Agent, such Securities called for
redemption shall be paid at the Redemption Price, including accrued and
unpaid interest and any Liquidated Damages to, but excluding, the Redemption
Date; provided that if the Redemption Date is after a Record Date and on or
prior to the corresponding Interest Payment Date, accrued interest and any
Liquidated Damages shall be payable to the Holder of the redeemed Securities
at the close of business on the relevant Record Date; and provided, further,
that if a Redemption Date is not a Business Day, payment shall be made on the
next succeeding Business Day and no interest shall accrue for the period from
such Redemption Date to such succeeding Business Day.
SECTION 3.6. DEPOSIT OF REDEMPTION PRICE.
On or prior to 10:30 a.m. New York City time, on the Redemption
Date, the Company shall deposit with the Paying Agent (other than the Company
or an Affiliate of the Company) Cash sufficient to pay all amounts due on all
Securities to be redeemed on such Redemption Date (other than Securities or
portions thereof called for redemption on that date that have been delivered
by the Company to the Trustee for cancellation). The Paying Agent shall
promptly return to the Company any Cash so deposited which is not required
for that purpose upon the written request of the Company.
If the Company complies with the preceding paragraph and the other
provisions of this Article III and payment of the Securities called for
redemption is not prohibited under Article XI or otherwise, interest and any
Liquidated Damages on the Securities to be redeemed will cease to accrue on and
after the applicable Redemption Date, whether or not such Securities are
presented for payment. Notwithstanding anything herein to the contrary, if any
Security surrendered for redemption in the manner provided in the Securities
shall not be so paid upon surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest and, if applicable,
Liquidated Damages shall continue
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to accrue and be paid from the Redemption Date until such payment is made on
the unpaid principal, and, to the extent lawful, on any interest not paid on
such unpaid principal, in each case at the rate and in the manner provided in
Section 4.1 hereof and the Security.
SECTION 3.7. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is to be redeemed in part, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder, without service charge to the Holder, a new Security or Securities
equal in principal amount to the unredeemed portion of the Security
surrendered.
SECTION 3.8. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.
In connection with any redemption of the Securities, the Company may
arrange for the purchase and conversion of any of the Securities by an agreement
with one or more investment bankers or other purchasers to purchase such
Securities by paying to the Trustee in trust for the Holders, on or before the
date fixed for redemption, an amount not less than the applicable Redemption
Price, together with interest accrued and any Liquidated Damages to (but
excluding) that Redemption Date, of such Securities. Notwithstanding anything
to the contrary contained in this Article III, the obligation of the Company to
pay the Redemption Price of such Securities, together with interest accrued and
any Liquidated Damages to (but excluding) the date fixed for redemption, shall
be deemed to be satisfied and discharged to the extent such amount is so paid by
such purchasers. If such an agreement is entered into (a copy of which shall be
filed with the Trustee prior to the date fixed for redemption), any Securities
not duly surrendered for conversion by the Holders thereof, may, at the option
of the Company, be deemed, to the fullest extent permitted by law, acquired by
such purchasers from such Holders and surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the
Redemption Date (and the right to convert any such Securities shall be extended
through such time), subject to payment of the above amount as aforesaid. At the
written direction of the Company, the Trustee shall hold and dispose of any such
amount paid to it in the same manner as it would moneys deposited with it by the
Company for the redemption of the Securities. Without the Trustee's prior
written consent, no arrangement between the Company and such purchasers for the
purchase and conversion of any Securities shall increase or otherwise affect any
of the powers, duties, responsibilities or obligations of the Trustee as set
forth in this Indenture, and the Company agrees to indemnify the Trustee from,
and hold it harmless against, any loss, liability or expense arising out of or
in connection with any such arrangement for the purchase and conversion of any
of the Securities between the Company and such purchasers to which the Trustee
has not consented in writing, including the costs and expenses, including
reasonable legal fees, incurred by the Trustee in the defense of any claim or
liability arising out of or in connection with the exercise or performance of
any of its
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powers, duties, responsibilities or obligations under this Indenture.
ARTICLE IV.
COVENANTS
SECTION 4.1. PAYMENT OF SECURITIES.
The Company shall pay the principal, Redemption Price or Repurchase
Price of and interest and any Liquidated Damages on the Securities on the
dates and in the manner provided in the Securities and, in the case of
Liquidated Damages, in the Registration Rights Agreement. A payment of any
amount due on the Securities shall be considered paid on the date it is due
if the Trustee or Paying Agent (other than the Company or an Affiliate of the
Company) holds for the benefit of the Holders, on or before 10:00 a.m. New
York City time on that date, Cash deposited and designated for and sufficient
to pay the applicable amount.
The Company shall pay interest on overdue principal, Redemption
Price or Repurchase Price and on overdue installments of interest and any
Liquidated Damages at the rate specified in the Securities, compounded
semi-annually, to the extent lawful.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration
of transfer or exchange and for conversion and where notices and demands to
or upon the Company in respect of the Securities and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 13.2.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency. The Company hereby initially designates the principal corporate trust
office of the Trustee as such office.
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SECTION 4.3. CORPORATE EXISTENCE.
Subject to Article V, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate or other existence of each of its Significant
Subsidiaries in accordance with the respective organizational documents of
each of them and the rights (charter and statutory) and corporate franchises
of the Company and each of its Significant Subsidiaries; provided, however,
that the Company shall not be required to preserve, with respect to itself,
any right or franchise, and with respect to any of its Significant
Subsidiaries, any such existence, right or franchise, if (a) the Company
shall, in good faith, reasonably determine that the preservation thereof is
no longer desirable in the conduct of the business of such entity and (b) the
loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 4.4. PAYMENT OF TAXES AND OTHER CLAIMS.
Except with respect to immaterial items, the Company shall, and
shall cause each of its Subsidiaries to, pay or discharge or cause to be paid
or discharged, before the same shall become delinquent, (i) all taxes,
assessments and governmental charges (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed upon the
Company or any of its Subsidiaries or any of their respective properties and
(ii) all lawful claims, whether for labor, materials, supplies, services or
anything else, which have become due and payable and which by law have or may
become a Lien upon the property and assets of the Company or any of its
Subsidiaries; provided, however, that neither the Company nor any Subsidiary
shall 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 and for which
disputed amounts adequate reserves have been established in accordance with
GAAP.
SECTION 4.5. MAINTENANCE OF PROPERTIES AND INSURANCE.
The Company shall cause all material properties used or useful to
the conduct of its business and the business of each of its Subsidiaries to
be maintained and kept in good condition, repair and working order
(reasonable wear and tear excepted) and supplied with all necessary equipment
and shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in its reasonable good faith
judgment may be necessary, so that the business carried on in connection
therewith may be properly conducted at all times; provided, however, that
nothing in this Section 4.5 shall prevent the Company or any Subsidiary from
discontinuing any operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is (a) in the
judgment of the Company, desirable in the conduct of the business of such
entity and (b) not disadvantageous in any material respect to the Holders.
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The Company shall provide, or cause to be provided, for itself and
each of its Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith
judgment of the Company is adequate and appropriate for the conduct of the
business of the Company and such Subsidiaries in a prudent manner, with
(except for self-insurance) reputable insurers or with the government of the
United States of America or an agency or instrumentality thereof, in such
amounts, with such deductibles, and by such methods as shall be customary, in
the reasonable, good faith judgment of the Company and adequate and
appropriate for the conduct of the business of the Company and such
Subsidiaries in a prudent manner for entities similarly situated in the
industry, unless failure to provide such insurance (together with all other
such failures) would not have a material adverse effect on the financial
condition or results of operations of the Company and the Subsidiaries, taken
as a whole.
SECTION 4.6. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) The Company shall deliver to the Trustee within 90 days after
the end of its fiscal year an Officers' Certificate, one of the signers of
which shall be the principal executive officer, principal financial officer
or principal accounting officer of the Company, complying with Section
314(a)(4) of the TIA and stating that a review of its activities and the
activities of its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining
whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, whether or not the signer knows of any failure by
the Company or any Subsidiary of the Company to comply with any conditions or
covenants in this Indenture (determined without regard to any period of grace
or requirement of notice) and, if such signer does know of such a failure to
comply, the certificate shall describe such failure with particularity. The
Officers' Certificate shall also notify the Trustee should the relevant
fiscal year end on any date other than the current fiscal year end date.
(b) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, promptly upon becoming aware of any
Default, Event of Default or fact which would prohibit the making of any
payment to or by the Trustee in respect of the Securities, an Officers'
Certificate specifying such Default, Event of Default or fact and what action
the Company is taking or proposes to take with respect thereto. The Trustee
shall not be deemed to have knowledge of any Default, any Event of Default or
any such fact unless one of its Trust Officers receives notice thereof from
the Company or any of the Holders.
SECTION 4.7. REPORTS.
Whether or not the Company is subject to the reporting requirements of
Section 13 or 15(d) of the Exchange
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Act, the Company shall deliver to the Trustee and to each Holder and to
prospective purchasers of Securities identified to the Company by an Initial
Purchaser, within 15 days after it is or would have been required to file
such with the SEC, annual and quarterly consolidated financial statements
substantially equivalent to financial statements that would have been
included in reports filed with the SEC if the Company were subject to the
requirements of Section 13 or 15(d) of the Exchange Act, including, with
respect to annual information only, a report thereon by the Company's
independent certified public accountants as such would be required in such
reports to the SEC and, in each case, together with a management's discussion
and analysis of financial condition and results of operations which would be
so required. In addition, the Company shall file with the Trustee and the
SEC, and transmit to holders of Securities, such information, documents and
other reports and such summaries thereof, as may be required pursuant to the
TIA at the times and in the manner provided pursuant to such Act.
Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall
not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.8. LIMITATION ON STATUS AS INVESTMENT COMPANY.
Neither the Company nor any of its Subsidiaries shall become an
"investment company" (as that term is defined in the Investment Company Act
of 1940 as amended), or otherwise become subject to regulation under the
Investment Company Act.
SECTION 4.9. WAIVER OF STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law which would prohibit or forgive the Company from paying all or any
portion of the principal Redemption Price or Repurchase Price of, or interest
on, the Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so) the Company 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.
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SECTION 4.10. RULE 144A INFORMATION REQUIREMENT.
If at any time there are Transfer Restricted Securities outstanding
and the Company shall cease to have a class of equity securities registered
under Section 12(g) of the Exchange Act or shall cease to be subject to
Section 15(d) of the Exchange Act, the Company shall furnish to the Holders
or beneficial holders of the Securities or the underlying Common Stock and
prospective purchasers of Securities or the underlying Common Stock
designated by the Holders of Transfer Restricted Securities, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act until such time as the Shelf Registration Statement
has become effective under the Securities Act. The Company shall also
furnish such information during the pendency of any suspension of
effectiveness of the Shelf Registration Statement.
SECTION 4.11. QUALIFICATION OF INDENTURE.
The Company shall qualify this Indenture under the TIA in
accordance with the terms and conditions of the Registration Rights Agreement
and shall pay all costs and expenses (including attorneys' fees and expenses
for the Company and the Trustee) incurred in connection therewith, including,
but not limited to, costs and expenses of qualification of the Indenture and
the Securities and printing this Indenture and the Securities.
SECTION 4.12. REGISTRATION RIGHTS.
The Holders of the Securities are entitled to certain registration
rights with respect to such Securities and Common Stock pursuant to, and
subject to the terms of, the Registration Rights Agreement. The Company
hereby covenants to perform all such obligations under the Registration
Rights Agreement for the benefit of such Holders.
ARTICLE V.
SUCCESSOR CORPORATION
SECTION 5.1. LIMITATION ON MERGER, SALE OR CONSOLIDATION.
(a) The Company shall not, directly or indirectly, consolidate
with or merge with or into another Person or sell, lease, convey or transfer
all or substantially all of its assets (other than to a wholly-owned
Subsidiary or Subsidiaries), whether in a single transaction or a series of
related transactions, to another Person or group of affiliated Persons,
unless (i) either (a) in the case of a merger or consolidation, the Company
is the surviving entity or (b) the resulting, surviving or transferee entity
is a corporation organized under the laws of the United States (including any
state thereof or the District of Columbia), Canada or any other country that
is a member of the European Union; provided that with respect to any
corporation organized under the laws of any European Union country other than
the United Kingdom,
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such corporation must be listed on the New York Stock Exchange or the
American Stock Exchange or quoted on the Nasdaq National Market, and
expressly assumes by supplemental indenture all of the obligations of the
Company in connection with the Securities and the Indenture; and (ii) no
Default or Event of Default shall exist or shall occur immediately after
giving effect to such transaction; and (iii) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and, if a supplemental indenture is
required, such supplemental indenture comply with this Indenture and that all
conditions precedent relating to such transaction have been satisfied.
(b) For purposes of clause (a) of this Section 5.1 and Section
12.6, the sale, lease, conveyance, assignment, transfer, or other disposition
of all or substantially all of the properties and assets of one or more
Subsidiaries of the Company, which properties and assets, if held by the
Company instead of such Subsidiaries, would constitute all or substantially
all of the properties and assets of the Company on a consolidated basis,
shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
SECTION 5.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger or any sale, lease, conveyance or
transfer of all or substantially all of the assets of the Company in
accordance with the foregoing, the successor corporation formed by such
consolidation or into which the Company is merged or to which such sale,
lease, conveyance or transfer is made, shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under the
Indenture with the same effect as if such successor corporation had been
named therein as the Company, and when a successor corporation duly assumes
all of the obligations of the Company pursuant hereto and pursuant to the
Securities, the predecessor shall be released from such obligations (except
with respect to any obligations that arise from or as a result of such
transaction).
ARTICLE VI.
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether
it shall be caused voluntarily or involuntarily or effected, without
limitation, 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):
(1) failure to pay any installment of interest on, or any
Liquidated Damages with respect to, the
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Securities as and when the same becomes due and payable, whether or not
such payment is prohibited by Article XI, or to perform any conversion
of the Securities required under this Indenture, and the continuance of
such failure for a period of 30 days;
(2) failure to pay all or any part of the principal of, or
premium, if any on the Securities when and as the same become due and
payable at maturity, redemption, by acceleration or otherwise,
including, without limitation, failure to pay all or any part of the
Repurchase Price on the Repurchase Date in accordance with Article X,
whether or not such payment is prohibited by Article XI;
(3) failure by the Company to observe or perform any covenant or
agreement contained in the Securities or this Indenture (other than a
default in the performance of any covenant or agreement which is
specifically dealt with elsewhere in this Section 6.1), and continuance
of such failure for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee, or to the
Company and the Trustee by Holders of at least 25% in aggregate
principal amount of the then outstanding Securities, a written notice
specifying such failure, requesting it to be remedied and stating that
such notice is a "Notice of Default" hereunder;
(4) failure by the Company or any Significant Subsidiary to pay at
final maturity (either at its stated maturity or upon acceleration
thereof) any Indebtedness of the Company or any Significant Subsidiary
in a principal amount then outstanding in excess of $10,000,000, and
such Indebtedness is not discharged, or such acceleration is not
rescinded or annulled within a period of 30 days after the giving of a
Notice of Default;
(5) a decree, judgment or order by a court of competent
jurisdiction shall have been entered adjudging the Company or any of its
Significant Subsidiaries as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization of the Company or any
of its Significant Subsidiaries under any Bankruptcy Law, and such
decree, judgment or order shall have continued undischarged and unstayed
for a period of 60 days; or a decree or order of a court of competent
jurisdiction over the appointment of a receiver, liquidator, trustee or
assignee in bankruptcy or insolvency of the Company, any of its
Significant Subsidiaries, or of the property of any such Person, or for
the winding up or liquidation of the affairs of any such Person, shall
have been entered, and such decree, judgment or order shall have
remained
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in force undischarged and unstayed for a period of 60 days;
(6) the Company or any of its Significant Subsidiaries shall
institute proceedings to be adjudicated a voluntary bankrupt, or shall
consent to the filing of a bankruptcy proceeding against it, or shall
file a petition or answer of consent seeking reorganization under any
Bankruptcy Law, or shall consent to the filing of any such petition, or
shall consent to the appointment of a custodian, receiver, liquidator,
trustee or assignee in bankruptcy or insolvency of it or any of its
assets or property, or shall make a general assignment for the benefit
of creditors; or take any corporate action in furtherance of or to
facilitate, conditionally or otherwise, any of the foregoing; or
(7) final unsatisfied judgments not covered by insurance,
aggregating in excess of $10,000,000 at any one time shall have been
rendered against the Company or any of its Significant Subsidiaries and
not have been stayed, bonded or discharged for a period (during which
execution shall not be effectively stayed) of 60 days (or, in the case
of any such final judgment which provides for payment over time, which
shall so remain unstayed, unbonded or undischarged beyond any applicable
payment date provided therein).
Notwithstanding the 60-day period and notice requirement contained in Section
6.1(3) above, with respect to a default under Article X the 60-day period
referred to in Section 6.1(3) shall be deemed to have begun as of the date
the Change of Control notice is required to be sent in the event that the
Company has not complied with the provisions of Section 10.1 and the Trustee
or Holders of at least 25% in principal amount of the outstanding Securities
thereafter have given the Notice of Default referred to in Section 6.1(3) to
the Company and, if applicable, the Trustee; provided, however, that if the
breach or default is a result of a default in the payment when due of the
Repurchase Price on the Repurchase Date, such Event of Default shall be
deemed, for purposes of this Section 6.1, to arise no later than on the last
Repurchase Date.
If a Default shall occur and be continuing and be known to the
Trustee, the Trustee shall, within 90 days after the occurrence of such Default,
give to the Holders notice of such Default; provided that the Trustee shall be
protected in withholding such notice if it in good faith determines that the
withholding of such notice is in the best interest of the Holders, except in the
case of a Default in the payment of any amounts due on the Securities
(including, without limitation, principal of, premium, if any, interest on, or
any Liquidated Damages, with respect to, any of the Securities when due, or in
the payment of Redemption Price or the Repurchase Price).
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SECTION 6.2. ACCELERATION OF MATURITY DATE; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in
Section 6.1(5) or (6) relating to the Company) occurs and is continuing,
then, in every such case, unless the principal of all of the Securities shall
have already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of then outstanding Securities,
by a notice in writing to the Company (and to the Trustee if given by
Holders) (an "Acceleration Notice"), may declare all of the principal of the
Securities (or the Repurchase Price if the Event of Default includes failure
to pay the Repurchase Price, determined as set forth below), including in
each case accrued interest and any Liquidated Damages thereon, to be due and
payable immediately. If an Event of Default specified in Section 6.1(5) or
(6) relating to the Company occurs, all amounts due thereon will be
immediately due and payable on all outstanding Securities without any
declaration or other act on the part of Trustee or the Holders.
At any time after such a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article VI, the
Holders of not less than a majority in aggregate principal amount of then
outstanding Securities, by written notice to the Company and the Trustee, may
rescind, on behalf of all Holders, any such declaration of acceleration if:
(1) the Company has paid or deposited with the Trustee Cash
sufficient to pay
(A) All overdue interest and Liquidated Damages on all
Securities
(B) the principal, Redemption Price or Repurchase Price of any
Securities which would then be due otherwise than by such declaration
of acceleration, and interest thereon at the rate borne by the
Securities
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest and overdue Liquidated Damages at the
rate borne by the Securities
(D) all sums paid or advanced by the Trustee hereunder and the
compensation, expenses, disbursements and advances of the Trustee, its
agent and counsel, and
(2) all Events of Default, other than the non-payment of the
principal, Redemption Price or Repurchase Price of, and interest and any
Liquidated
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Damages on, the Securities that have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 6.12, including, if applicable, any Event of Default relating to
the covenants contained in Section 10.1.
Notwithstanding the previous sentence of this Section 6.2, no
waiver shall be effective against any Holder for any Default or Event of
Default with respect to any covenant or provision which cannot be modified or
amended without the consent of the Holder of each outstanding Security
affected thereby, unless all such affected Holders agree, in writing, to
waive such Default or Event of Default. No such waiver shall cure or waive
any subsequent Default or Event of Default or impair any right consequent
thereon.
SECTION 6.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if an Event of Default in payment of any
amount specified in clause (1) or (2) of Section 6.1 occurs and is
continuing, the Company shall, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities and, to the extent that payment of such interest
shall be legally enforceable, interest on any such overdue amounts, including
any overdue interest and Liquidated Damages, at the rate borne by the
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the reasonable costs and expenses of collection,
including compensation to, and reasonable expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust in
favor of the Holders, may institute a judicial proceeding for the collection
of the sums so due and unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the Company or any other
obligor upon the Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or
any other obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of
the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 6.4. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization,
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arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of su