FIVE STAR QUALITY CARE, INC. and EACH OF THE GUARANTORS NAMED HEREIN and U.S. BANK NATIONAL ASSOCIATION as Trustee INDENTURE Dated as of October 18, 2006 $126,500,000 Principal Amount 3.75% Convertible Senior Notes due 2026
Exhibit
4.1
FIVE
STAR QUALITY CARE, INC.
and
EACH
OF THE GUARANTORS NAMED HEREIN
and
U.S.
BANK NATIONAL ASSOCIATION
as
Trustee
__________________________________________
Dated
as
of October 18, 2006
__________________________________________
$126,500,000
Principal Amount
3.75%
Convertible Senior Notes due 2026
CROSS-REFERENCE
TABLE
|
TIA
Section
|
Section
|
|
310(a)(1)
|
7.10
|
|
(a)(2)
|
7.10
|
|
(a)(3)
|
N.A.
|
|
(a)(4)
|
N.A.
|
|
(a)(5)
|
N.A.
|
|
(b)
|
7.08;
7.10; 12.02
|
|
(c)
|
N.A.
|
|
311(a)
|
7.11
|
|
(b)
|
7.11
|
|
(c)
|
N.A.
|
|
312(a)
|
2.05
|
|
(b)
|
12.03
|
|
(c)
|
12.03
|
|
313(a)
|
7.06
|
|
(b)(1)
|
N.A.
|
|
(b)(2)
|
7.06
|
|
(c)
|
7.06;
12.02
|
|
(d)
|
7.06
|
|
314(a)
|
4.03
|
|
(b)
|
N.A.
|
|
(c)(1)
|
12.04
|
|
(c)(2)
|
12.04
|
|
(c)(3)
|
N.A.
|
|
(d)
|
N.A.
|
|
(e)
|
12.05
|
|
(f)
|
N.A.
|
|
315(a)
|
7.01(B)
|
|
(b)
|
7.05;
12.02
|
|
(c)
|
7.01(A)
|
|
(d)
|
7.01(C)
|
|
(e)
|
6.11
|
|
316(a)
(last sentence)
|
2.09
|
|
(a)(1)(A)
|
6.05
|
|
(a)(1)(B)
|
6.04
|
|
(a)(2)
|
N.A.
|
|
(b)
|
6.07
|
|
(c)
|
N.A.
|
|
317(a)(1)
|
6.08
|
|
(a)(2)
|
6.09
|
|
(b)
|
2.04
|
|
318(a)
|
12.01
|
I
TABLE
OF CONTENTS
|
Page
|
||
|
I.
|
DEFINITIONS
AND INCORPORATION BY REFERENCE
|
1
|
|
1.01
Definitions.
|
1
|
|
|
1.02
Other Definitions.
|
6
|
|
|
1.03
Incorporation by Reference of Trust Indenture Act.
|
7
|
|
|
1.04
Rules of Construction.
|
7
|
|
|
II.
|
THE
SECURITIES
|
8
|
|
2.01
Form and Dating.
|
8
|
|
|
2.02
Execution and Authentication.
|
8
|
|
|
2.03
Registrar, Paying Agent and Conversion Agent.
|
9
|
|
|
2.04
Paying Agent to Hold Money in Trust.
|
10
|
|
|
2.05
Securityholder Lists.
|
10
|
|
|
2.06
Transfer and Exchange.
|
10
|
|
|
2.07
Replacement Securities.
|
11
|
|
|
2.08
Outstanding Securities.
|
11
|
|
|
2.09
Securities Held by the Company or an Affiliate.
|
12
|
|
|
2.10
Temporary Securities.
|
12
|
|
|
2.11
Cancellation.
|
12
|
|
|
2.12
Defaulted Interest.
|
13
|
|
|
2.13
CUSIP Numbers.
|
13
|
|
|
2.14
Deposit of Moneys.
|
13
|
|
|
2.15
Book-Entry Provisions for Global Securities.
|
14
|
|
|
2.16
Special Transfer Provisions.
|
14
|
|
|
2.17
Restrictive Legends.
|
16
|
|
|
2.18
Ranking.
|
16
|
|
|
III.
|
REDEMPTION
AND XXXXXXXXXX
|
00
|
|
3.01
Right of Redemption.
|
17
|
|
|
3.02
Notices to Trustee.
|
17
|
|
|
3.03
Selection of Securities to Be Redeemed.
|
18
|
|
|
3.04
Notice of Redemption.
|
18
|
|
|
3.05
Effect of Notice of Redemption.
|
19
|
|
|
3.06
Deposit of Redemption Price.
|
20
|
|
|
3.07
Securities Redeemed in Part.
|
20
|
|
|
3.08
Purchase of Securities at Option of the Holder.
|
20
|
|
|
3.09
Repurchase at Option of Holder Upon a Fundamental Change.
|
24
|
|
|
IV.
|
COVENANTS
|
31
|
|
4.01
Payment of Securities.
|
31
|
-i-
|
4.02
Maintenance of Office or Agency.
|
31
|
|
|
4.03
Rule 144A Information and Annual Reports.
|
32
|
|
|
4.04
Compliance Certificate.
|
33
|
|
|
4.05
Stay, Extension and Usury Laws.
|
33
|
|
|
4.06
Corporate Existence.
|
34
|
|
|
4.07
Notice of Default.
|
34
|
|
|
4.08
Further Instruments and Acts.
|
34
|
|
|
4.09
Additional Interest Notice.
|
34
|
|
|
V.
|
SUCCESSORS
|
34
|
|
5.01
When Company May Merge, etc.
|
34
|
|
|
5.02
Successor Substituted.
|
35
|
|
|
VI.
|
DEFAULTS
AND REMEDIES
|
35
|
|
6.01
Events of Default.
|
35
|
|
|
6.02
Acceleration.
|
37
|
|
|
6.03
Other Remedies.
|
38
|
|
|
6.04
Waiver of Past Defaults.
|
38
|
|
|
6.05
Control by Majority.
|
38
|
|
|
6.06
Limitation on Suits.
|
39
|
|
|
6.07
Rights of Holders to Receive Payment.
|
39
|
|
|
6.08
Collection Suit by Trustee.
|
39
|
|
|
6.09
Trustee May File Proofs of Claim.
|
40
|
|
|
6.10
Priorities.
|
40
|
|
|
6.11
Undertaking for Costs.
|
40
|
|
|
VII.
|
TRUSTEE
|
41
|
|
7.01
Duties of Trustee.
|
41
|
|
|
7.02
Rights of Trustee.
|
42
|
|
|
7.03
Individual Rights of Trustee.
|
43
|
|
|
7.04
Trustee’s Disclaimer.
|
43
|
|
|
7.05
Notice of Defaults.
|
43
|
|
|
7.06
Reports by Trustee to Holders.
|
44
|
|
|
7.07
Compensation and Indemnity.
|
44
|
|
|
7.08
Replacement of Trustee.
|
45
|
|
|
7.09
Successor Trustee by Merger, etc.
|
46
|
|
|
7.10
Eligibility; Disqualification.
|
46
|
|
|
7.11
Preferential Collection of Claims Against Company.
|
46
|
|
|
VIII.
|
DISCHARGE
OF INDENTURE
|
46
|
|
8.01
Termination of the Obligations of the Company.
|
46
|
|
|
8.02
Application of Trust Money.
|
47
|
|
|
8.03
Repayment to Company.
|
47
|
|
|
8.04
Reinstatement.
|
47
|
|
-ii-
|
IX.
|
AMENDMENTS
|
48
|
|
9.01
Without Consent of Holders.
|
48
|
|
|
9.02
With Consent of Holders.
|
48
|
|
|
9.03
Compliance with Trust Indenture Act.
|
50
|
|
|
9.04
Revocation and Effect of Consents.
|
50
|
|
|
9.05
Notation on or Exchange of Securities.
|
50
|
|
|
9.06
Trustee Protected.
|
50
|
|
|
9.07
Effect of Supplemental Indentures.
|
50
|
|
|
X.
|
CONVERSION
|
51
|
|
10.01
Conversion Privilege; Restrictive Legends.
|
51
|
|
|
10.02
Conversion Procedure.
|
51
|
|
|
10.03
Fractional Shares.
|
53
|
|
|
10.04
Taxes on Conversion.
|
53
|
|
|
10.05
Company to Provide Stock.
|
53
|
|
|
10.06
Adjustment of Conversion Rate.
|
53
|
|
|
10.07
No Adjustment.
|
59
|
|
|
10.08
Other Adjustments.
|
61
|
|
|
10.09
Adjustments for Tax Purposes.
|
61
|
|
|
10.10
Notice of Adjustment.
|
61
|
|
|
10.11
Notice of Certain Transactions.
|
61
|
|
|
10.12
Effect of Reclassifications, Consolidations, Mergers, Binding
Share
Exchanges or Sales on Conversion Privilege.
|
62
|
|
|
10.13
Trustee’s Disclaimer.
|
63
|
|
|
10.14
Rights Distributions Pursuant to Shareholders’ Rights
Plans.
|
64
|
|
|
10.15
Increased Conversion Rate Applicable to Certain Notes Surrendered
in
Connection With Make-Whole Fundamental Changes.
|
64
|
|
|
XI.
|
SUBSIDIARY
GUARANTEES
|
67
|
|
11.01
Guarantees.
|
67
|
|
|
11.02
Limitation on Guarantor Liability.
|
68
|
|
|
11.03
Execution and Delivery of Subsidiary Guarantees
|
68
|
|
|
11.04
Release, Discharge Upon Merger or Consoliation and
Termination.
|
68
|
|
|
XII.
|
MISCELLANEOUS
|
70
|
|
12.01
Trust Indenture Act Controls.
|
70
|
|
|
12.02
Notices.
|
70
|
|
|
12.03
Communication by Holders with Other Holders.
|
71
|
|
|
12.04
Certificate and Opinion as to Conditions Precedent.
|
71
|
|
|
12.05
Statements Required in Certificate or Opinion.
|
72
|
|
|
12.06
Rules by Trustee and Agents.
|
72
|
|
|
12.07
Legal Holidays.
|
72
|
|
|
12.08
Duplicate Originals.
|
72
|
-iii-
|
12.09
Governing Law.
|
72
|
|
|
12.10
No Adverse Interpretation of Other Agreements.
|
73
|
|
|
12.11
Successors.
|
73
|
|
|
12.12
Separability.
|
73
|
|
|
12.13
Table of Contents, Headings, etc.
|
73
|
|
|
12.14
Calculations in Respect of the Securities.
|
73
|
|
Exhibit
A
|
-
|
Form
of Global Security
|
|
Exhibit
B-1
|
-
|
Form
of Private Placement Legend
|
|
Exhibit
B-2
|
-
|
Form
of Legend for Global Security
|
|
Exhibit
B-3
|
-
|
Form
of Legend Regarding Registration Rights Agreement and Subsidiary
Guarantees
|
|
Exhibit
C
|
-
|
Form
of Notice of Transfer Pursuant to Registration Statement
|
|
Exhibit
D
|
-
|
Form
of Opinion of Counsel in Connection with Registration of
Securities
|
|
Exhibit
E
|
-
|
Form
of Subsidiary Guarantee
|
|
Exhibit
F
|
-
|
Form
of Supplemental Indenture to be Delivered by Subsequent
Guarantors
|
|
Schedule
1
|
-
|
Schedule
of Guarantors
|
-iv-
INDENTURE,
dated
as of October 18, 2006, among Five Star Quality Care, Inc., a Maryland
corporation (the “Company”),
each
of the Guarantors named in Schedule
1
hereto
and U.S. Bank National Association, as trustee (the “Trustee”).
Each
party agrees as follows for the benefit of the other parties and for the
equal
and ratable benefit of the Holders of the Company’s 3.75% Convertible Senior
Notes due 2026 (the “Securities”).
I. DEFINITIONS
AND INCORPORATION BY REFERENCE
1.01 Definitions.
The
term
“additional
interest”
has
the
meaning ascribed to it in the Registration Rights Agreement.
“Affiliate”
means,
with respect to a specified person, any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified person. For this purpose, “control” shall mean the power to
direct the management and policies of a person through the ownership of
securities, by contract or otherwise.
“Agent”
means
any Registrar, Paying Agent, Conversion Agent or co-Registrar or
co-agent.
“Board
of Directors”
means
the Board of Directors of the Company or any committee thereof authorized
to act
for it hereunder.
“Board
Resolution”
means
a
copy of a resolution certified by the Secretary or an Assistant Secretary
of the
Company to have been duly adopted by the Board of Directors and to be in
full
force and effect on the date of such certification, and delivered to the
Trustee.
“Capital
Stock”
of
any
Person means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of such Person and all warrants or
options
to acquire such capital stock.
“Change
in Control Make-Whole Fundamental Change”
means
a
Change
in Control (other than an Acquisition of Voting Control).
“Closing
Sale Price”
means
the price of a share of Common Stock on the relevant date, determined (a)
on the
basis of the closing sale price per share of Common Stock (or if no closing
sale
price per share of Common Stock is reported, the average of the bid and ask
prices per share of Common Stock or, if more than one in either case, the
average of the average bid and the average ask prices per share of Common
Stock)
on such date on the U.S. principal national securities exchange on which
the
Common Stock is listed; or (b) if the Common Stock is not listed on a U.S.
national securities exchange, as reported by the National Association of
Securities Dealers Automated Quotation System; or (c) if not so quoted, as
reported by Pink Sheets or a similar organization. In the absence of a
quotation, the Closing Sale Price shall be the average of the mid-point of
the
last bid and ask prices for the Common Stock on the relevant
-1-
date
from
each of at least three nationally recognized independent investment banking
firms selected by the Company for this purpose.
“Common
Stock”
means
the common shares, $0.01 par value per share, of the Company, or such other
Capital Stock of the Company into which the Company’s common stock is
reclassified or changed.
“Common
Stock Change Make-Whole Fundamental Change”
means
any transaction or series of related transactions in connection with which
(whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization, asset
sale, lease of assets or otherwise) the Common Stock is exchanged for, converted
into, acquired for or constitutes solely the right to receive other securities,
other property, assets or cash (other than any transaction or series of related
transactions as a result of which the notes, pursuant to Section
10.12,
become
convertible solely into consideration 90% or more of which (other than cash
payments for fractional shares or pursuant to statutory appraisal rights)
will
consist of common stock and any associated rights traded on a US national
securities exchange (or which will be so traded when issued or exchanged
in
connection with such transaction or series of transactions)).
“Company”
means
the party named as such above until a successor replaces it pursuant to the
applicable provision hereof and thereafter means the successor. The foregoing
sentence shall likewise apply to any such successor or subsequent
successor.
“Company
Order”
or
“Company
Request”
means
a
written request or order signed on behalf of the Company by its Chairman
of the
Board, its Chief Executive Officer, its President, its Chief Operating Officer,
its Chief Financial Officer, any Executive Vice President or any Senior Vice
President and by its Treasurer or an Assistant Treasurer or its Secretary
or an
Assistant Secretary, and delivered to the Trustee.
“Conversion
Price” means,
as
of any date of determination, the dollar amount derived by dividing one thousand
dollars ($1,000) by the Conversion Rate in effect on such date.
“Conversion
Rate” means
the
number of shares of Common Stock issuable upon conversion of a Security per
$1,000 principal amount, which Conversion Rate shall initially be 76.9231
shares
of Common Stock per $1,000 principal amount of Securities, subject to adjustment
as provided in Article
X.
“Corporate
Trust Office of the Trustee”
shall
be at the address of the Trustee specified in Section
12.02
or such
other address as the Trustee may give notice of to the Company.
“Default”
means
any event which is, or after notice or passage of time or both would be,
an
Event of Default.
“Depositary”
means
The Depository Trust Company, its nominees and successors.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the SEC thereunder.
-2-
“Guarantee”
means
a
direct or indirect guarantee by any Person of any Indebtedness of any other
Person and includes, without limitation, any obligation, direct or indirect,
contingent or otherwise, of such Person (1) to purchase or pay (or advance
or
supply funds for the purchase or payment of) Indebtedness of such other Person
(whether arising by virtue of partnership arrangements or by arrangements
or
agreements to keep-well, to purchase assets, goods, securities or services
(unless such purchase arrangements or agreements are on arm’s-length terms and
are entered into in the ordinary course of business), to take-or-pay or to
maintain financial statement conditions or otherwise); or (2) entered into
for
purposes of assuring in any other manner the obligee of such Indebtedness
of the
payment thereof or to protect such obligee against loss in respect thereof
(in
whole or in part).
“Guarantors”
means
each party named in Schedule 1 hereto until a successor replaces it pursuant
to
the applicable provision hereof and thereafter means the successor. The
foregoing sentence shall likewise apply to any such successor or subsequent
successor.
“Holder”
or
“Securityholder”
means
a
person in whose name a Security is registered on the Registrar’s
books.
“Indebtedness”
of
a
person means the principal of, premium, if any, and interest on, and all
other
obligations in respect of (a) all indebtedness of such person for borrowed
money
(including all indebtedness evidenced by notes, bonds, debentures or other
securities), (b) all obligations incurred by such person in the acquisition
(whether by way of purchase, merger, consolidation or otherwise and whether
by
such person or another person) of any business, real property or other assets,
(c) all reimbursement obligations of such person with respect to letters
of
credit, bankers’ acceptances or similar facilities issued for the account of
such person, (d) all capital lease obligations of such person, (e) all net
obligations of such person under interest rate swap, currency exchange or
similar agreements of such person, (f) all obligations and other liabilities,
contingent or otherwise, under any lease or related document, including a
purchase agreement, conditional sale or other title retention agreement,
in
connection with the lease of real property or improvements thereon (or any
personal property included as part of any such lease) which provides that
such
person is contractually obligated to purchase or cause a third party to purchase
the leased property or pay an agreed-upon residual value of the leased property,
including such person’s obligations under such lease or related document to
purchase or cause a third party to purchase such leased property or pay an
agreed-upon residual value of the leased property to the lessor, (g) guarantees
by such person of indebtedness described in clauses
(a) through (f)
of
another person, and (h) all renewals, extensions, refundings, deferrals,
restructurings, amendments and modifications of any indebtedness, obligation,
guarantee or liability of the kind described in clauses
(a) through (g).
“Indenture”
means
this Indenture as amended or supplemented from time to time.
“Initial
Purchasers means
UBS
Securities LLC, RBC Capital Markets Corporation, Wachovia Capital Markets,
LLC,
Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxxxxxx & Company LLC and
Xxxxxx, Xxxxx Xxxxx, Incorporated.
“Issue
Date”
means
October 18, 2006.
-3-
“Make-Whole
Fundamental Change”
means
a
Change
in Control Make-Whole Fundamental Change or
a
Common
Stock Change Make-Whole Fundamental Change, in each case that occurs before
October 20, 2011.
“Market
Disruption Event”
means
the occurrence or existence during the one-half hour period ending on the
scheduled close of trading on any trading day for the Common Stock of any
material suspension or limitation imposed on trading (by reason of movements
in
price exceeding limits permitted by the stock exchange or otherwise) in the
Common Stock or in any options, contracts or future contracts relating to
the
Common Stock.
“Maturity
Date”
means
October 15, 2026.
“Officer”
means
the Chairman of the Board, the Chief Executive Officer, the President, the
Chief
Operating Officer, the Chief Financial Officer, any Executive Vice President,
any Senior Vice President, the Treasurer or the Secretary of the
Company.
“Officers’
Certificate”
means
a
certificate signed by two (2) Officers or by an Officer and an Assistant
Treasurer or an Assistant Secretary of the Company.
“Opinion
of Counsel”
means
a
written opinion from legal counsel who may be an employee of or counsel for
the
Company, or other counsel reasonably acceptable to the Trustee.
“Person”
or
“person”
means
any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization
or
government or other agency or political subdivision thereof.
“Purchase
Agreement”
means
the Purchase Agreement dated October 12, 2006 among the Company, the Guarantors
and the Initial Purchasers.
“Purchase
Notice”
means
a
Purchase Notice in the form set forth in the Securities.
“Redemption
Date”
means
the date specified for Redemption of the Securities in accordance with the
terms
of the Securities and this Indenture.
“Redemption
Price”
means,
with respect to a Security to be redeemed by the Company in accordance with
Article
III,
one
hundred percent (100%) of the outstanding principal amount of such Security
to
be redeemed.
“Registration
Rights Agreement”
means
the Registration Rights Agreement dated as of the date hereof among the Company,
the Guarantors and the Initial Purchasers.
“Responsible
Officer”
shall
mean, when used with respect to the Trustee, any officer within the corporate
trust department of the Trustee, including any vice president, assistant
vice
president, assistant secretary, assistant treasurer, trust officer or any
other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person’s
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
-4-
“Restricted
Security”
means
a
Security that constitutes a “restricted security” within the meaning of Rule
144(a)(3) under the Securities Act; provided,
however,
that
the Trustee shall be entitled to request and conclusively rely on an Opinion
of
Counsel with respect to whether any Security constitutes a Restricted
Security.
“Rights
Agreement”
means
that certain Rights Agreement between the Company and Xxxxx Fargo Bank, National
Association, as successor to Equiserve Trust Company, N.A., as rights agent,
dated March 10, 2004, as the same may be amended, supplemented or
superseded.
“Rule
144A” means
Rule 144A under the Securities Act.
“SEC”
means
the Securities and Exchange Commission.
“Securities”
means
the 3.75% Convertible Senior Notes due 2026 issued by the Company pursuant
to
this Indenture.
“Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations of
the SEC
thereunder.
“Significant
Subsidiary”
with
respect to any person means any subsidiary of such person that constitutes
a
“significant subsidiary” within the meaning of Rule 1-02(w) of Regulation S-X
under the Securities Act, as such regulation is in effect on the date of
this
Indenture.
“Subsidiary”
means
(i) a corporation a majority of whose Capital Stock with voting power, under
ordinary circumstances, to elect directors is at the time, directly or
indirectly, owned by the Company, by one or more subsidiaries of the Company
or
by the Company and one or more of its subsidiaries or (ii) any other person
(other than a corporation) in which the Company, one or more of its
subsidiaries, or the Company and one or more of its subsidiaries, directly
or
indirectly, at the date of determination thereof, own at least a majority
ownership interest.
“Subsidiary
Guarantee”
means
the Guarantee by each Guarantor of the Company’s payment obligations under this
Indenture and the Registration Rights Agreement and on the Securities, executed
pursuant to the provisions of this Indenture.
“TIA”
means
the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as amended and in
effect from time to time.
“Trading
Day”
means
any day during which all of the following conditions are satisfied: (i) trading
in the Common Stock generally occurs; (ii) there is no Market Disruption
Event;
and (iii) a closing sale price for the Common Stock is provided on the American
Stock Exchange or, if the Common Stock is not then listed on American Stock
Exchange, on the principal other U.S. national or regional securities exchange
on which the Common Stock is then listed or, if the Common Stock is not listed
on a U.S. national or regional securities exchange, on the principal other
market on which the Common Stock is then traded.
-5-
“Trustee”
means
the party named as such in this Indenture until a successor replaces it in
accordance with the provisions hereof and thereafter means the
successor.
“Voting
Stock”
of
any
Person means the total outstanding voting power of all classes of the Capital
Stock of such Person entitled to vote generally in the election of directors
of
such Person.
1.02 Other
Definitions.
|
Term
|
Defined
in Section
|
|
“Acquisition
of Voting Control”
|
3.09
|
|
“Aggregate
Amount”
|
10.06
|
|
“Applicable
Price”
|
10.15
|
|
“Asset
Sale Control Change”
|
3.09
|
|
“Bankruptcy
Law”
|
6.01
|
|
“BCF
Adjustment Cap”
|
10.07
|
|
“BCF
Make-Whole Cap”
|
10.15
|
|
“Business
Day”
|
12.07
|
|
“Change
in Control”
|
3.09
|
|
“Collective
Election”
|
10.12
|
|
“Conversion
Agent”
|
2.03
|
|
“Conversion
Date”
|
10.02
|
|
“Conversion
Shares”
|
10.06
|
|
“Custodian”
|
6.01
|
|
“Determination
Date”
|
10.06
|
|
“Distribution
Date”
|
10.06
|
|
“Effective
Date”
|
10.15
|
|
“Event
of Default”
|
6.01
|
|
“Ex
Date”
|
10.06
|
|
“Expiration
Date”
|
10.06
|
|
“Expiration
Time”
|
10.06
|
|
“Fundamental
Change”
|
3.09
|
|
“Fundamental
Change Notice”
|
3.09
|
|
“Fundamental
Change Repurchase Date”
|
3.09
|
|
“Fundamental
Change Repurchase Price”
|
3.09
|
|
“Fundamental
Change Repurchase Right”
|
3.09
|
|
“Global
Security”
|
2.01
|
|
“Legal
Holiday”
|
12.07
|
|
“Listed
Stock Business Combination”
|
3.09
|
|
“Make-Whole
Applicable Increase”
|
10.15
|
|
“Make-Whole
Conversion Period”
|
10.15
|
|
“Make-Whole
Consideration”
|
10.15
|
|
“Notice
of Default”
|
6.01
|
|
“Option
Purchase Date”
|
3.08
|
|
“Option
Purchase Notice”
|
3.08
|
|
“Option
Purchase Price”
|
3.08
|
-6-
|
“Participants”
|
2.15
|
|
“Paying
Agent”
|
2.03
|
|
“Physical
Securities”
|
2.01
|
|
“Private
Placement Legend”
|
2.17
|
|
“Purchase
at Holder’s Option”
|
3.01
|
|
“Purchased
Shares”
|
10.06
|
|
“Redemption”
|
3.01
|
|
“Reference
Property”
|
10.12
|
|
“Registrar”
|
2.03
|
|
“Repurchase
Upon Fundamental Change”
|
3.01
|
|
“Resale
Restriction Termination Date”
|
2.17
|
|
“Rights”
|
10.06
|
|
“Sale
and leaseback”
|
3.09
|
|
“Termination
of Trading”
|
3.09
|
|
“Underlying
Shares”
|
10.06
|
1.03 Incorporation
by Reference of Trust Indenture Act.
Whenever
this Indenture refers to a provision of the TIA, the 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
security holder”
means
a
Securityholder or a Holder;
“indenture
to be qualified”
means
this Indenture;
“indenture
trustee”
or
“institutional
trustee”
means
the Trustee; and
“obligor”
on
the
indenture securities means the Company or any successor.
All
other
terms used in this Indenture that are defined by the TIA, defined by the
TIA by
reference to another statute or defined by SEC rule under the TIA and not
otherwise defined herein have the meanings so assigned to them.
1.04 Rules
of Construction.
Unless
the context otherwise requires:
(i) a
term
has the meaning assigned to it;
(ii) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with U.S. generally accepted accounting principles in effect from
time to time;
(iii) “or”
is
not exclusive;
(iv) “including”
means “including without limitation”;
-7-
(v) words
in
the singular include the plural and in the plural include the
singular;
(vi) provisions
apply to successive events and transactions;
(vii) the
term
“interest”
includes additional interest, unless the context otherwise requires or, in
the
case of additional interest, unless the terms of the Registration Rights
Agreement provide otherwise;
(viii) “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 of this
Indenture; and
(ix) references
to currency shall mean the lawful currency of the United States of America,
unless the context requires otherwise.
II. THE
SECURITIES
2.01 Form
and Dating.
The
Securities and the Trustee’s certificate of authentication shall be
substantially in the form set forth in Exhibit
A,
which
is incorporated in and forms a part of this Indenture. The Securities may
have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication.
Securities
offered and sold in reliance on Rule 144A shall be issued initially in the
form
of one or more Global Securities, substantially in the form set forth in
Exhibit A
(the
“Global
Security”),
deposited with the Trustee, as custodian for the Depositary, duly executed
by
the Company and authenticated by the Trustee as hereinafter provided and
bearing
the legends set forth in Exhibits B-1
and
B-2.
The
aggregate principal amount of the Global Security may from time to time be
increased or decreased by adjustments made on the records of the Trustee,
as
custodian for the Depositary, as hereinafter provided; provided,
that in
no event shall the aggregate principal amount of the Global Security or
Securities exceed $126,500,000.
Securities
issued in exchange for interests in a Global Security pursuant to Section 2.15
may
be
issued in the form of permanent certificated Securities in registered form
in
substantially the form set forth in Exhibit A
(the
“Physical
Securities”)
and,
if applicable, bearing any legends required by Section
2.17.
The
Securities shall bear the legends set forth in Exhibit
B-3.
2.02 Execution
and Authentication.
One
duly
authorized Officer shall sign the Securities for the Company by manual or
facsimile signature.
-8-
A
Security’s validity shall not be affected by the failure of an Officer whose
signature is on such Security to hold, at the time the Security is
authenticated, the same office at the Company.
A
Security shall not be valid until duly authenticated by manual signature
of the
Trustee. The signature shall be conclusive evidence that the Security has
been
authenticated under this Indenture.
Upon
a
written order of the Company signed by one Officer of the Company, the Trustee
shall authenticate Securities for original issue in the aggregate principal
amount of $126,500,000. The aggregate principal amount of Securities outstanding
at any time may not exceed $126,500,000 except as provided in this Section 2.02.
Upon
a
written order of the Company signed by two (2) Officers or by an Officer
and an
Assistant Treasurer of the Company, the Trustee shall authenticate Securities
not bearing the Private Placement Legend to be issued to the transferee when
sold pursuant to an effective registration statement under the Securities
Act as
set forth in Section 2.16(B).
The
Trustee shall act as the initial authenticating agent. Thereafter, the Trustee
may appoint an authenticating agent acceptable to the Company to authenticate
Securities. An authenticating agent may authenticate Securities whenever
the
Trustee may do so. Each reference in this Indenture to authentication by
the
Trustee includes authentication by such authenticating agent. An authenticating
agent has the same rights as an Agent to deal with the Company and its
Affiliates.
If
a
written order of the Company pursuant to this Section
2.02
has
been, or simultaneously is, delivered, any instructions by the Company to
the
Trustee with respect to endorsement, delivery or redelivery of a Security
issued
in global form shall be in writing but need not comply with Section
12.04
hereof
and need not be accompanied by an Opinion of Counsel.
The
Securities shall be issuable only in registered form without interest coupons
and only in denominations of $1,000 principal amount and any integral multiple
thereof.
2.03 Registrar,
Paying Agent and Conversion Agent.
The
Company shall maintain, or shall cause to be maintained, (i) an office or
agency
in the Borough of Manhattan, The City of New York, where Securities may be
presented for registration of transfer or for exchange (“Registrar”),
(ii)
an office or agency in the Borough of Manhattan, The City of New York, where
Securities may be presented for payment (“Paying
Agent”)
and
(iii) an office or agency in the Borough of Manhattan, The City of New York,
where Securities may be presented for conversion (“Conversion
Agent”).
The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may appoint or change one or more co-Registrars, one
or
more additional paying agents and one or more additional conversion agents
without notice and may act in any such capacity on its own behalf. The term
“Registrar”
includes any co-Registrar; the term “Paying
Agent”
includes any additional paying agent; and the term “Conversion
Agent”
includes any additional conversion agent.
-9-
The
Company shall enter into an appropriate agency agreement with any Agent not
a
party to this Indenture. The agreement shall implement the provisions of
this
Indenture that relate to such Agent. The Company shall notify the Trustee
of the
name and address of any Agent not a party to this Indenture. If the Company
fails to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee
shall act as such.
The
Company initially appoints the Trustee as Paying Agent, Registrar and Conversion
Agent.
2.04 Paying
Agent to Hold Money in Trust.
Each
Paying Agent shall hold in trust for the benefit of the Securityholders or
the
Trustee all moneys and, if applicable, other property held by the Paying
Agent
for the payment of the Securities, and shall notify the Trustee of any Default
by the Company in making any such payment. While any such Default continues,
the
Trustee may require a Paying Agent to pay all money and, if applicable, other
property held by it to the Trustee. The Company at any time may require a
Paying
Agent to pay all money and, if applicable, other property held by it to the
Trustee and account for any funds so paid by it. Upon payment over to the
Trustee, the Paying Agent shall have no further liability for such money
and, if
applicable, other property. If the Company acts as Paying Agent, it shall
segregate and hold as a separate trust fund all money and, if applicable,
other
property held by it as Paying Agent.
2.05 Securityholder
Lists.
The
Trustee shall preserve in as current a form as is reasonably practicable
the
most recent list available to it of the names and addresses of Securityholders.
If the Trustee is not the Registrar, the Company shall furnish, or shall
cause
to be furnished, to the Trustee on or before each interest payment date and
at
such other times as the Trustee may request in writing a list, in such form
and
as of such date as the Trustee may reasonably require, of the names and
addresses of Securityholders appearing in the security register of the
Registrar.
2.06 Transfer
and Exchange.
Subject
to Sections
2.15
and
2.16
hereof,
where Securities are presented to the Registrar with a request to register
their
transfer or to exchange them for an equal principal amount of Securities
of
other authorized denominations, the Registrar shall register the transfer
or
make the exchange if its requirements for such transaction are met. To permit
registrations of transfer and exchanges, the Trustee shall authenticate
Securities at the Registrar’s request or upon the Trustee’s receipt of a Company
Order therefor. The Company or the Trustee, as the case may be, shall not
be
required to register the transfer of or exchange any Security (i) for a period
of fifteen (15) days before selecting, pursuant to Section
3.03,
Securities to be redeemed or (ii) during a period beginning at the opening
of
business fifteen (15) days before the mailing of a notice of redemption of
the
Securities selected for Redemption under Section 3.04
and
ending at the close of business on the day of such mailing or (iii) that
has
been selected for Redemption or for which a Purchase Notice has been delivered,
and not withdrawn, in accordance with this Indenture, except the unredeemed
or
unrepurchased portion of Securities being redeemed or repurchased in
part.
-10-
No
service charge shall be made for any transfer, exchange or conversion of
Securities, but the Company may require payment of a sum sufficient to cover
any
transfer tax or similar governmental charge that may be imposed in connection
with any transfer, exchange or conversion of Securities, other than exchanges
pursuant to Sections 2.10,
9.05 or
10.02,
or
Article
III,
not
involving any transfer.
2.07 Replacement
Securities.
If
the
Holder of a Security claims that the Security has been mutilated, lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security upon surrender to the Trustee of the
mutilated Security, or upon delivery to the Trustee of evidence of the loss,
destruction or theft of the Security satisfactory to the Trustee and the
Company. In the case of a lost, destroyed or wrongfully taken Security, if
required by the Trustee or the Company, indemnity must be provided by the
Holder
that is reasonably satisfactory to the Trustee and the Company to indemnify
and
hold harmless the Company, the Trustee or any Agent from any loss which any
of
them may suffer if such Security is replaced. The Trustee and the Company
may
charge such Holder for their expenses in replacing a Security.
In
case
any such mutilated, lost, destroyed or wrongfully taken Security has become
or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security when due.
Every
replacement Security is an additional obligation of the Company only as provided
in Section 2.08.
2.08 Outstanding
Securities.
Securities
outstanding at any time are all the Securities authenticated by the Trustee
except for those converted, those cancelled by it, those delivered to it
for
cancellation and those described in this Section 2.08
as not
outstanding. Except to the extent provided in Section
2.09,
a
Security does not cease to be outstanding because the Company or one of its
Subsidiaries or Affiliates holds the Security.
If
a
Security is replaced pursuant to Section 2.07,
it
ceases to be outstanding unless the Trustee receives proof satisfactory to
it,
or a court holds, that the replaced Security is held by a protected purchaser
within the meaning of the New York Uniform Commercial Code.
If
the
Paying Agent (other than the Company) holds on an Option Purchase Date,
Redemption Date, Fundamental Change Repurchase Date or Maturity Date, money
sufficient to pay the aggregate Option Purchase Price, Redemption Price,
Fundamental Change Repurchase Price or principal amount, as the case may
be,
with respect to all Securities to be redeemed, purchased or paid upon Purchase
at Holder’s Option, Redemption, Repurchase Upon Fundamental Change or on the
Maturity Date, as the case may be, in each case plus, if applicable, accrued
and
unpaid interest, if any, payable as herein provided upon Purchase at Holder’s
Option, Redemption, Repurchase Upon Fundamental Change or on the Maturity
Date,
then (unless there shall be a Default in the payment of such aggregate Option
Purchase Price, Redemption Price, Fundamental Change Repurchase Price or
principal amount, or of such accrued and unpaid interest), except as otherwise
provided herein, on and after such date such
-11-
Securities
shall be deemed to be no longer outstanding, interest on such Securities
shall
cease to accrue, and such Securities shall be deemed paid whether or not
such
Securities are delivered to the Paying Agent. Thereafter, all rights of the
Holders of such Securities shall terminate with respect to such Securities,
other than the right to receive the Option Purchase Price, Redemption Price,
Fundamental Change Repurchase Price or principal amount, as the case may
be,
plus, if applicable, such accrued and unpaid interest, in accordance with
this
Indenture. Notwithstanding the foregoing, a Holder shall be entitled to convert
a Security on the close of business on the Business Day immediately preceding
the Maturity Date.
If
a
Security is converted in accordance with Article
X,
then,
from and after the time of such conversion on the Conversion Date, such Security
shall cease to be outstanding, and interest, if any, shall cease to accrue
on
such Security unless there shall be a Default in the payment or delivery
of the
consideration payable hereunder upon such conversion.
2.09 Securities
Held by the Company or an Affiliate.
In
determining whether the Holders of the required aggregate principal amount
of
Securities have concurred in any direction, waiver or consent, Securities
owned
by the Company or any of its Subsidiaries or Affiliates shall be considered
as
though not outstanding, except that, for the purposes of determining whether
the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Securities which the Trustee actually knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may
be
considered to be outstanding for purposes of this Section
2.09
if the
pledgee establishes, to the satisfaction of the Trustee, the pledgee’s right so
to concur with respect to such Securities and that the pledgee is not, and
is
not acting at the direction or on behalf of, the Company, any other obligor
on
the Securities, an Affiliate of the Company or an affiliate of any such other
obligor. In the event of a dispute as to whether the pledgee has established
the
foregoing, the Trustee may conclusively rely on the advice of counsel or
on an
Officers’ Certificate.
2.10 Temporary
Securities.
Until
definitive Securities are ready for delivery, the Company may prepare and
the
Trustee shall, upon receipt of a Company Order therefor, authenticate temporary
Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee, upon receipt of a Company Order therefor,
shall
authenticate definitive Securities in exchange for temporary Securities.
Until
so exchanged, each temporary Security shall in all respects be entitled to
the
same benefits under this Indenture as definitive Securities, and such temporary
Security shall be exchangeable for definitive Securities in accordance with
the
terms of this Indenture.
2.11 Cancellation.
The
Company at any time may deliver Securities to the Trustee for cancellation.
The
Registrar, Paying Agent and Conversion Agent shall forward to the Trustee
any
Securities surrendered to them for transfer, exchange, payment or conversion.
The Trustee shall promptly cancel all Securities surrendered for transfer,
exchange, payment, conversion or cancellation in
-12-
accordance
with its customary procedures. The Company may not issue new Securities to
replace Securities that it has paid or delivered to the Trustee for cancellation
or that any Securityholder has converted pursuant to Article X.
All
cancelled Securities held by the Trustee shall be disposed of in accordance
with
its customary procedure for the disposal of cancelled securities, and
certification of such disposal shall be delivered by the Trustee to the Company
unless the Company shall, by a Company Order, direct that cancelled Securities
be returned to it.
The
Company may, to the extent permitted by law, purchase Securities in the open
market or by tender offer at any price or by private agreement. The Company
may,
at its option and to the extent permitted by law, reissue, resell or surrender
to the Trustee for cancellation any Securities it purchased in this manner.
Securities surrendered to the Trustee for cancellation may not be reissued
or
resold and will be promptly cancelled.
2.12 Defaulted
Interest.
If
and to
the extent the Company defaults in a payment of interest on the Securities,
the
Company shall pay in cash the defaulted interest in any lawful manner plus,
to
the extent not prohibited by applicable statute or case law, interest on
such
defaulted interest at the rate provided in the Securities (as accrued from
the
date when such defaulted interest was due until paid). The Company may pay
the
defaulted interest (plus interest on such defaulted interest) to the persons
who
are Securityholders on a subsequent special record date. The Company shall
fix
such record date and payment date. At least fifteen (15) calendar days before
the record date, the Company shall mail to Securityholders a notice that
states
the record date, payment date and amount of interest to be paid. Upon the
due
payment in full, interest shall no longer accrue on such defaulted interest
pursuant to this Section
2.12.
2.13 CUSIP
Numbers.
The
Company in issuing the Securities may use one or more “CUSIP” numbers, and, if
so, the Trustee shall use the CUSIP numbers in notices as a convenience to
Holders; provided,
however,
that no
representation is hereby deemed to be made by the Trustee as to the correctness
or accuracy of the CUSIP numbers printed on the notice or on the Securities;
provided
further,
that
reliance may be placed only on the other identification numbers printed on
the
Securities, and the effectiveness of any such notice shall not be affected
by
any defect in, or omission of, such CUSIP numbers. The Company shall promptly
notify the Trustee of any change in the CUSIP numbers.
2.14 Deposit
of Moneys.
Prior
to
10:00 A.M., New York City time, on each interest payment date, Maturity Date,
Redemption Date, Option Purchase Date or Fundamental Change Repurchase Date,
the
Company shall have deposited with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust in accordance with
Section 2.04)
money,
in funds immediately available on such date, sufficient to make cash payments,
if any, due on such interest payment date, Maturity Date, Redemption Date,
Option Purchase Date or Fundamental Change Repurchase Date, as the case may
be,
in a timely manner which permits the Paying Agent to remit payment to the
Holders on such interest payment date, Maturity Date,
-13-
Redemption
Date, Option Purchase Date or Fundamental Change Repurchase Date, as the
case
may be.
2.15 Book-Entry
Provisions for Global Securities.
(A) The
Global Securities initially shall (i) be registered in the name of the
Depositary or the nominee of the Depositary, (ii) be delivered to the Trustee
as
custodian for the Depositary and (iii) bear legends as set forth in Section 2.17.
Members
of, or participants in, the Depositary (“Participants”)
shall
have no rights under this Indenture with respect to any Global Security held
on
their behalf by the Depositary, or the Trustee as its custodian, or under
the
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of the
Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company
or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and Participants, the operation of customary practices governing the exercise
of
the rights of a Holder of any Security.
(B) Transfers
of Global Securities shall be limited to transfers in whole, but not in part,
to
the Depositary, its successors or their respective nominees. In addition,
Physical Securities shall be transferred to all beneficial owners, as identified
by the Depositary, in exchange for their beneficial interests in Global
Securities only if (i) the Depositary notifies the Company that the Depositary
is unwilling or unable to continue as depositary for any Global Security
(or the
Depositary ceases to be a “clearing agency” registered under Section 17A of the
Exchange Act) and a successor Depositary is not appointed by the Company
within
ninety (90) days of such notice or cessation or (ii) an Event of Default
has
occurred and is continuing and the Registrar has received a written request
from
the Depositary to issue Physical Securities.
(C) In
connection with the transfer of a Global Security in its entirety to beneficial
owners pursuant to Section 2.15(B),
such
Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall upon written
instructions from the Company authenticate and deliver, to each beneficial
owner
identified by the Depositary in exchange for its beneficial interest in such
Global Security, an equal aggregate principal amount of Physical Securities
of
authorized denominations.
(D) Any
Physical Security constituting a Restricted Security delivered in exchange
for
an interest in a Global Security pursuant to Section 2.15(B)
shall,
except as otherwise provided by Section 2.16,
bear
the Private Placement Legend.
(E) The
Holder of any Global Security may grant proxies and otherwise authorize any
Person, including Participants and Persons that may hold interests through
Participants, to take any action which a Holder is entitled to take under
this
Indenture or the Securities.
2.16 Special
Transfer Provisions.
(A) Restrictions
on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture, but except as provided
in Section
2.15(B),
a
Global
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Security
may not be transferred except as a whole by the Depositary to a nominee of
the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(B) Private
Placement Legend.
Upon
the transfer, exchange or replacement of Securities not bearing the Private
Placement Legend, the Registrar or co-Registrar shall deliver Securities
that do
not bear the Private Placement Legend. Upon the transfer, exchange or
replacement of Securities bearing the Private Placement Legend, the Registrar
or
co-Registrar shall deliver only Securities that bear the Private Placement
Legend unless (i) the requested transfer is after the Resale Restriction
Termination Date, (ii) there is delivered to the Trustee and the Company
an
opinion of counsel reasonably satisfactory to the Company and addressed to
the
Company (and expressly permitting reliance by the Trustee or accompanied
by a
separate letter from such counsel to the Trustee permitting the Trustee to
rely
on such opinion) to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with
the
provisions of the Securities Act or (iii) such Security has been sold pursuant
to an effective registration statement under the Securities Act and the Holder
selling such Securities has delivered to the Registrar or co-Registrar a
notice
in the form of Exhibit C
hereto.
Upon the effectiveness, under the Securities Act, of the “Shelf Registration
Statement” (as defined in the Registration Rights Agreement), the Company shall
deliver to the Trustee a notice of effectiveness, a Global Security or Global
Securities, which do not bear the Private Placement Legend, an authentication
order in accordance with Section 2.02
and an
Opinion of Counsel in the form of Exhibit D
hereto,
and, if required by the Depositary, the Company shall deliver to the Depositary
a letter of representations in a form reasonably acceptable to the
Depositary.
Upon the
effectiveness of any post-effective amendment to the “Shelf Registration
Statement” (as defined in the Registration Rights Agreement) and upon the
effectiveness, under the Securities Act, of any “Subsequent Shelf Registration
Statement” (as defined in the Registration Rights Agreement), the Company shall
deliver to the Trustee a notice of effectiveness and an Opinion of Counsel
in
the form of Exhibit D
hereto.
Upon any sale, pursuant to a Shelf Registration Statement, of a beneficial
interest in a Global Security that theretofore constituted a Restricted Security
and delivery of appropriate evidence thereof to the Trustee, and upon any
sale
or transfer of a beneficial interest in connection with which the Private
Placement Legend will be removed in accordance with this Indenture, the Trustee
shall increase the principal amount of the Global Security that does not
constitute a Restricted Security by the principal amount of such sale or
transfer and likewise reduce the principal amount of the Global Security
that
does constitute a Restricted Security.
(C) General.
By its
acceptance of any Security bearing the Private Placement Legend, each Holder
of
such a Security acknowledges the restrictions on transfer of such Security
set
forth in this Indenture and in the Private Placement Legend and agrees that
it
will transfer such Security only as provided in this Indenture and as permitted
by applicable law.
The
Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.15
or this
Section 2.16.
The
Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
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(D) Transfers
of Securities Held by Affiliates.
Any
certificate (i) evidencing a Security that has been transferred to an Affiliate
within two (2) years after the Issue Date, as evidenced by a notation on
the
assignment form for such transfer or in the representation letter delivered
in
respect thereof or (ii) evidencing a Security that has been acquired from
an
Affiliate (other than by an Affiliate) in a transaction or a chain of
transactions not involving any public offering, shall, until two (2) years
after
the last date on which the Company or any Affiliate was an owner of such
Security (or such longer period of time as may be required under the Securities
Act or applicable state securities laws), in each case, bear the Private
Placement Legend, unless otherwise agreed by the Company (with written notice
thereof to the Trustee).
(E) Compliance
with Laws. Notwithstanding
any term contained herein to the contrary, neither the Trustee nor the Registrar
shall be under any obligation to determine or monitor whether any transfer
or
exchange of the Securities complies with the Securities Act or any other
state
or federal securities laws that may be applicable; provided, however, that
if a
certificate or opinion is specifically required by the express terms of this
Section
2.16
to be
delivered to the Trustee or the Registrar prior to registration of a transfer,
the Trustee or the Registrar, as the case may be, shall be under a duty to
receive the same, and to examine such certificate or opinion to determine
whether it conforms on its face with the applicable requirements of this
Section
2.16.
2.17 Restrictive
Legends.
Each
Global Security and Physical Security that constitutes a Restricted Security
shall bear the legend (the “Private
Placement Legend”)
as set
forth in Exhibit B-1
on
the
face thereof until after the second anniversary of the later of (i) the Issue
Date and (ii) the last date on which the Company or any Affiliate was the
owner
of such Security (or any predecessor security) (or such shorter period of
time
as permitted by Rule 144(k) under the Securities Act or any successor provision
thereunder) (or such longer period of time as may be required under the
Securities Act or applicable state securities laws, as set forth in an Opinion
of Counsel, unless otherwise agreed between the Company and the Holder thereof)
(such date, the “Resale
Restriction Termination Date”).
The
Trustee shall be entitled to receive, and may rely conclusively upon, an
Officer’s Certificate signed by one Officer of the Company as to the occurrence
of the date described in clause (ii) of the preceding sentence.
Each
Global Security shall also bear the legend as set forth in Exhibit B-2.
2.18 Ranking.
The
indebtedness of the Company arising under or in connection with this Indenture
and every outstanding Security issued under this Indenture from time to time
constitutes and will constitute a senior unsecured obligation of the Company,
ranking equally with other existing and future senior unsecured indebtedness
of
the Company and ranking senior to any existing or future subordinated
indebtedness of the Company.
The
indebtedness of each Guarantor arising under or in connection with this
Indenture and every outstanding Security issued under this Indenture from
time
to time constitutes and will constitute a senior unsecured obligation of
each
Guarantor, ranking equally with other existing
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and
future senior unsecured indebtedness of each Guarantor and ranking senior
to any
existing or future subordinated indebtedness of each Guarantor.
For
the
avoidance of doubt, the Securities are not and will not become subordinated
to
the payment of existing or future unsecured indebtedness of the Company or
any
Guarantor.
III. REDEMPTION
AND REPURCHASE
3.01 Redemption
and Repurchase.
(A) (i)
Redemption of the Securities at the Company’s option, as permitted by this
Indenture, shall be made in accordance with paragraphs
6 and 7 of
the
Securities (a “Redemption”),
(ii)
repurchases at the Holder’s option, as permitted by this Indenture, shall be
made in accordance with paragraph
8
of the
Securities (a “Purchase
at Holder’s Option”)
and
(iii) repurchases upon a Fundamental Change, as permitted by this Indenture,
shall be made in accordance with paragraph
9
of the
Securities (a “Repurchase
Upon Fundamental Change”),
in
each case in accordance with the applicable provisions of this Article
III.
(B) The
Company will comply with all federal and state securities laws, and the
applicable laws of any foreign jurisdiction, in connection with any offer
to
sell or solicitations of offers to buy Securities pursuant to this Article
III.
(C) The
Company shall not have the right to redeem any Securities prior to October
20,
2011. The
Company shall have the right, at the Company’s option, at any time, and from
time to time, on a Redemption Date on or after October 20, 2011, to redeem
all
or any part of the Securities at a price payable in cash equal to the Redemption
Price plus accrued and unpaid interest, if any, to, but excluding, the
Redemption Date; provided,
however,
that in
no event shall any Redemption Date be a Legal Holiday; provided
further,
that if
the Redemption Date with respect to a Security is after a record date for
the
payment of an installment of interest and on or before the related interest
payment date, then accrued and unpaid interest to, but excluding, such interest
payment date shall be paid, on such interest payment date, to the Holder
of
record of such Security at the close of business on such record date, and
the
Holder surrendering such Security for Redemption shall not be entitled to
any
such interest unless such Holder was also the Holder of record of such Security
at the close of business on such record date.
(D) Securities
in denominations larger than $1,000 principal amount may be redeemed in part
but
only in integral multiples of $1,000 principal amount.
3.02 Notices
to Trustee.
If
the
Company elects to redeem Securities pursuant to paragraph
6
of the
Securities, it shall notify the Trustee in writing of the Redemption Date,
the
applicable provision of this Indenture pursuant to which the Redemption is
to be
made and the aggregate principal amount of Securities to be redeemed, which
notice shall be provided to the Trustee by the Company at least fifteen (15)
days prior to the mailing, in accordance with Section
3.04,
of the
notice of Redemption (unless a shorter notice period shall be satisfactory
to
the Trustee).
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3.03 Selection
of Securities to Be Redeemed.
If
the
Company has elected to redeem less than all the Securities pursuant to
paragraph
6
of the
Securities, the Trustee shall, within five (5) Business Days after receiving
the
notice specified in Section
3.02,
select
the Securities to be redeemed by lot, on a pro
rata
basis or
in accordance with any other method the Trustee considers fair and appropriate.
The Trustee shall make such selection from Securities then outstanding and
not
already to be redeemed by virtue of having been previously called for
Redemption. The Trustee may select for Redemption portions of the principal
amount of Securities that have denominations larger than $1,000 principal
amount. Securities and portions of them the Trustee selects for Redemption
shall
be in amounts of $1,000 principal amount or integral multiples of $1,000
principal amount. The Trustee shall promptly notify the Company in writing
of
the Securities selected for Redemption and the principal amount thereof to
be
redeemed.
The
Registrar need not register the transfer of or exchange any Securities that
have
been selected for Redemption, except the unredeemed portion of the Securities
being redeemed in part.
3.04 Notice
of Redemption.
At
least
thirty (30) days but not more than sixty (60) days before a Redemption Date,
the
Company shall mail, or cause to be mailed, by first-class mail a notice of
Redemption to each Holder whose Securities are to be redeemed, at the address
of
such Holder appearing in the security register.
The
notice shall identify the Securities and the aggregate principal amount thereof
to be redeemed pursuant to the Redemption and shall state:
(i) the
Redemption Date;
(ii) the
Redemption Price plus accrued and unpaid interest, if any, to, but excluding,
the Redemption Date;
(iii) the
Conversion Rate and the Conversion Price;
(iv) the
names
and addresses of the Paying Agent and the Conversion Agent;
(v) that
the
right to convert the Securities called for Redemption will terminate at the
close of business on the third Business Day immediately preceding the Redemption
Date, unless there shall be a Default in the payment of the Redemption Price
or
accrued and unpaid interest, if any, payable as herein provided upon
Redemption;
(vi) that
Holders who want to convert Securities must satisfy the requirements of
Article X;
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(vii) the
paragraph of the Securities pursuant to which the Securities are to be
redeemed;
(viii) that
Securities called for Redemption must be surrendered to the Paying Agent
to
collect the Redemption Price plus accrued and unpaid interest, if any, payable
as herein provided upon Redemption;
(ix) that,
unless there shall be a Default in the payment of the Redemption Price or
accrued and unpaid interest, if any, payable as herein provided upon Redemption
(including, where the Redemption Date is after a record date for the payment
of
an installment of interest and on or before the related interest payment
date,
the payment, on such interest payment date, of accrued and unpaid interest
to,
but excluding, such interest payment date to the Holder of record at the
close
of business on such record date), interest on Securities called for Redemption
ceases to accrue on and after the Redemption Date, except as otherwise provided
herein, such Securities will cease to be convertible after the close of business
on the third Business Day immediately preceding the Redemption Date, and
all
rights of the Holders of such Securities shall terminate on and after the
Redemption Date, other than the right to receive, upon surrender of such
Securities and in accordance with this Indenture, the amounts due hereunder
on
such Securities upon Redemption (and the rights of the Holder(s) of record
of
such Securities to receive, on the applicable interest payment date, accrued
and
unpaid interest in accordance herewith in the event the Redemption Date is
after
a record date for the payment of an installment of interest and on or before
the
related interest payment date; and
(x) the
CUSIP
number or numbers, as the case may be, of the Securities.
The
right, pursuant to Article
X,
to
convert Securities called for Redemption shall terminate at the close of
business on the third Business Day immediately preceding the Redemption Date,
unless there shall be a Default in the payment of the Redemption Price or
accrued and unpaid interest, if any, payable as herein provided upon
Redemption.
At
the
Company’s request, the Trustee shall mail the notice of Redemption in the
Company’s name and at the Company’s expense; provided,
however,
that
the form and content of such notice shall be prepared by the
Company.
3.05 Effect
of Notice of Redemption.
Once
notice of Redemption is mailed, Securities called for Redemption become due
and
payable on the Redemption Date at the consideration set forth herein, and,
on
and after such Redemption Date (unless there shall be a Default in the payment
of such consideration), except as otherwise provided herein, such Securities
shall cease to bear interest, and all rights of the Holders of such Securities
shall terminate, other than the right to receive such consideration upon
surrender of such Securities to the Paying Agent.
If
any
Security shall not be fully and duly paid in accordance herewith upon
Redemption, the principal of, and accrued and unpaid interest on, such Security
shall, until paid, bear interest
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at
the
rate borne by such Security on the principal amount of such Security, and
such
Security shall continue to be convertible pursuant to Article
X.
Notwithstanding
anything herein to the contrary, the Company shall not redeem any Securities
on
any date if the principal amount of the Securities has been accelerated,
and
such acceleration has not been rescinded on or prior to Redemption Date (except
in the case of an acceleration resulting from a Default by the Company in
the
payment of the Redemption Price with respect to such Securities).
3.06 Deposit
of Redemption Price.
Prior
to
10:00 A.M., New York City time on the Redemption Date, the Company shall
deposit
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust in accordance with Section 2.04)
money,
in funds immediately available on the Redemption Date, sufficient to pay
the
consideration payable as herein provided upon Redemption on all Securities
to be
redeemed on that date. The Paying Agent shall return to the Company, as soon
as
practicable, any money not required for that purpose.
3.07 Securities
Redeemed in Part.
Any
Security to be submitted for Redemption only in part shall be delivered pursuant
to Section 3.05
(with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly
executed by, the Holder thereof or its attorney duly authorized in writing),
and
the Company shall execute, and the Trustee shall authenticate and make available
for delivery to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, of the same tenor and in aggregate principal amount equal to the
portion
of such Security not submitted for Redemption.
If
any
Security selected for partial Redemption is converted in part, the principal
of
such Security subject to Redemption shall be reduced by the principal amount
of
such Security that is converted.
3.08 Purchase
of Securities at Option of the Holder.
(A) At
the
option of the Holder thereof, Securities (or portions thereof that are integral
multiples of $1,000 in principal amount) shall be purchased by the Company
pursuant to paragraph
8
of the
Securities on October 15, 2013, October 15, 2016 and October 15, 2021 (each,
an
“Option
Purchase Date”),
at a
purchase price, payable in cash, equal to one hundred percent (100%) of the
principal amount of the Securities (or such portions thereof) to be so purchased
(the “Option
Purchase Price”),
plus
accrued and unpaid interest, if any, to, but excluding, the applicable Option
Purchase Date (provided,
that
such accrued and unpaid interest shall be paid to the Holder of record of
such
Securities at the close of business on the record date immediately preceding
such Option Purchase Date), upon:
(i) delivery
to the Company (if it is acting as its own Paying Agent), or to a Paying
Agent
designated by the Company for such purpose in the Option Purchase Notice,
by
such Holder, at any time from the opening of business on the date that
is
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twenty
(20) Business Days prior to the applicable Option Purchase Date until the
close
of business on the Business Day immediately preceding the applicable Option
Purchase Date, of a Purchase Notice, in the form set forth in the Securities
or
any other form of written notice substantially similar thereto, in each case,
duly completed and signed, with appropriate signature guarantee,
stating:
(a) the
CUSIP
number for the Securities the Holder will deliver to be purchased, and the
certificate number(s) of the Securities which the Holder will deliver to
be
purchased, if such Securities are in certificated form;
(b) the
principal amount of Securities to be purchased, which must be $1,000 or an
integral multiple thereof; and
(c) that
such
principal amount of Securities are to be purchased as of the applicable Option
Purchase Date pursuant to the terms and conditions specified in paragraph
8 of
the
Securities and in this Indenture; and
(ii) delivery
to the Company (if it is acting as its own Paying Agent), or to a Paying
Agent
designated by the Company for such purpose in the Option Purchase Notice,
at any
time after delivery of such Purchase Notice, of such Securities (together
with
all necessary endorsements), such delivery being a condition to receipt by
the
Holder of the Option Purchase Price therefor plus accrued and unpaid interest,
if any, payable as herein provided upon Purchase at Holder’s Option
(provided,
however,
that
the Holder of record of such Securities on the record date immediately preceding
such Option Purchase Date need not surrender such Securities in order to
be
entitled to receive, on the Option Purchase Date, the accrued and unpaid
interest due thereon).
If
such
Securities are held in book-entry form through the Depositary, the Purchase
Notice shall comply with applicable procedures of the Depositary.
Upon
such
delivery of Securities to the Company (if it is acting as its own Paying
Agent)
or such Paying Agent, such Holder shall be entitled to receive from the Company
or such Paying Agent, as the case may be, a nontransferable receipt of deposit
evidencing such delivery.
Notwithstanding
anything herein to the contrary, any Holder that has delivered the Purchase
Notice contemplated by this Section
3.08(A) to
the
Company (if it is acting as its own Paying Agent) or to a Paying Agent
designated by the Company for such purpose in the Option Purchase Notice
shall
have the right to withdraw such Purchase Notice by delivery, at any time
prior
to the close of business on the Business Day immediately preceding the
applicable Option Purchase Date, of a written notice of withdrawal to the
Company (if acting as its own Paying Agent) or the Paying Agent, which notice
shall contain the information specified in Section
3.08(B)(vii).
The
Paying Agent shall promptly notify the Company of the receipt by it of any
Purchase Notice or written notice of withdrawal thereof.
(B) The
Company shall give written notice (the “Option
Purchase Notice”)
on a
date not less than twenty (20) Business Days prior to each Option Purchase
Date
to each Holder at its
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address
shown in the register of the Registrar and to each beneficial owner as required
by applicable law. Such notice shall state:
(i) the
Option Purchase Price plus accrued and unpaid interest, if any, to, but
excluding, such Option Purchase Date and the Conversion Rate;
(ii) the
names
and addresses of the Paying Agent and the Conversion Agent;
(iii) that
Securities with respect to which a Purchase Notice is given by a Holder may
be
converted pursuant to Article
X
only if
such Purchase Notice has been withdrawn in accordance with this Section
3.08
or if
there shall be a Default in the payment of such Option Purchase Price or
in
accrued and unpaid interest, if any, payable as herein provided upon Purchase
at
Holder’s Option;
(iv) that
Securities must be surrendered to the Paying Agent to collect payment of
the
Option Purchase Price plus (if such Holder was the Holder of record of the
applicable Security at the close of business on the record date immediately
preceding the Option Purchase Date) accrued and unpaid interest, if any,
payable
as herein provided upon Purchase at Holder’s Option;
(v) that
the
Option Purchase Price, plus accrued and unpaid interest, if any, to, but
excluding, such Option Purchase Date, for any Security as to which a Purchase
Notice has been given and not withdrawn will be paid as promptly as practicable,
but in no event later than the third Business Day after the later of such
Option
Purchase Date or the time of delivery of the Security as described in
clause
(iv)
above;
provided,
however,
that
such accrued and unpaid interest shall be paid, on the applicable interest
payment date, to the Holder of record of such Security at the close of business
on the record date immediately preceding such Option Purchase Date;
(vi) the
procedures the Holder must follow to exercise rights under this Section
3.08
(including the name and address of the Paying Agent) and a brief description
of
those rights;
(vii) that
a
Holder will be entitled to withdraw its election in the Purchase Notice if
the
Company (if acting as its own Paying Agent) or the Paying Agent receives,
at any
time prior to the close of business on the Business Day immediately preceding
the applicable Option Purchase Date, or such longer period as may be required
by
law, a letter or telegram, telex or facsimile transmission (receipt of which
is
confirmed and promptly followed by a letter) setting forth (I) the name of
such
Holder, (II) a statement that such Holder is withdrawing its election to
have
Securities purchased by the Company on such Option Purchase Date pursuant
to a
Purchase at Holder’s Option, (III) the certificate number(s) of such Securities
to be so withdrawn, if such Securities are in certificated form, (IV) the
principal amount of the Securities of such Holder to be so withdrawn, which
amount must be $1,000 or an integral multiple thereof and (V) the principal
amount, if any, of the Securities of such Holder
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that
remain subject to the Purchase Notice delivered by such Holder in accordance
with this Section
3.08,
which
amount must be $1,000 or an integral multiple thereof;
(viii) that,
except as otherwise provided herein, on and after the applicable Option Purchase
Date (unless there shall be a Default in the payment of the consideration
payable as herein provided upon a Purchase at Holder’s Option), interest on
Securities subject to Purchase at Holder’s Option will cease to accrue, and all
rights of the Holders of such Securities shall terminate, other than the
right
to receive, in accordance herewith, the consideration payable as herein provided
upon a Purchase at Holder’s Option; and
(ix) the
CUSIP
number or numbers, as the case may be, of the Securities.
At
the
Company’s request, the Trustee shall mail such Option Purchase Notice in the
Company’s name and at the Company’s expense; provided,
however,
that
the form and content of such Option Purchase Notice shall be prepared by
the
Company.
No
failure of the Company to give an Option Purchase Notice shall limit any
Holder’s right to exercise its rights to require the Company to purchase such
Holder’s Securities pursuant to a Purchase at Holder’s Option.
(C) Subject
to the provisions of this Section
3.08,
the
Company shall pay, or cause to be paid, the Option Purchase Price, plus accrued
and unpaid interest, if any, to, but excluding, the applicable Option Purchase
Date, with respect to each Security subject to Purchase at Holder’s Option to
the Holder thereof as promptly as practicable, but in no event later than
the
later of the applicable Option Purchase Date and the time such Security
(together with all necessary endorsements) is surrendered to the Paying Agent;
provided,
however,
that
such accrued and unpaid interest shall be paid, on the applicable interest
payment date, to the Holder of record of such Security at the close of business
on the record date immediately preceding such Option Purchase Date.
(D) Prior
to
10:00 A.M., New York City time on the applicable Option Purchase Date, the
Company shall deposit with a Paying Agent (or, if the Company is acting as
its
own Paying Agent, segregate and hold in trust in accordance with Section 2.04)
money,
in funds immediately available on the applicable Option Purchase Date,
sufficient to pay the Option Purchase Price, plus accrued and unpaid interest,
if any, to, but excluding, such Option Purchase Date, of all of the Securities
that are to be purchased by the Company on such Option Purchase Date pursuant
to
a Purchase at Holder’s Option. The Paying Agent shall return to the Company, as
soon as practicable, any money not required for that purpose.
(E) Once
the
Purchase Notice has been duly delivered in accordance with this Section 3.08,
the
Securities to be purchased pursuant to the Purchase at Holder’s Option shall, on
the applicable Option Purchase Date, become due and payable in accordance
herewith, and, on and after such date (unless there shall be a Default in
the
payment of the consideration payable as herein provided upon a Purchase at
Holder’s Option), except as otherwise herein provided, such Securities
shall cease to bear interest, and all rights of the Holders of such Securities
shall terminate, other than the right to receive, in accordance herewith,
the
such consideration.
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(F) Securities
with respect to which a Purchase Notice has been duly delivered in accordance
with this Section 3.08
may be
converted pursuant to Article
X,
if
otherwise convertible in accordance with Article
X,
only if
such Purchase Notice has been withdrawn in accordance with this Section
3.08
or if
there shall be a Default in the payment of the consideration payable as herein
provided upon a Purchase at Holder’s Option.
(G) If
any
Security subject to Purchase at Holder’s Option shall not be paid in accordance
herewith, the principal of, and accrued and unpaid interest on, such Security
shall, until paid, bear interest, payable in cash, at the rate borne by such
Security on the principal amount of such Security, and such Security shall
continue to be convertible pursuant to Article
X.
(H) Any
Security which is to be submitted for Purchase at Holder’s Option only in part
shall be delivered pursuant to this Section 3.08
(with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly
executed by, the Holder thereof or its attorney duly authorized in writing),
and
the Company shall execute, and the Trustee shall authenticate and make available
for delivery to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, of the same tenor and in aggregate principal amount equal to the
portion
of such Security not submitted for Purchase at Holder’s Option.
(I) Notwithstanding
anything herein to the contrary, no Securities shall be purchased by the
Company
at the option of the Holders on any Option Purchase Date if the principal
amount
of the Securities has been accelerated, and such acceleration has not been
rescinded, on or prior to such Option Purchase Date (except in the case of
an
acceleration resulting from a Default by the Company in the payment of the
Option Purchase Price with respect to such Securities). The Paying Agent
will
promptly return to the respective Holders thereof any Securities held by
it
during the continuance of such acceleration.
(J) Notwithstanding
anything herein to the contrary, if the option granted to Holders to require
the
purchase of the Securities on the applicable Option Purchase Date is determined
to constitute a tender offer, the Company shall comply with all applicable
tender offer rules to the extent required under the Exchange Act, including
Rule
13e-4 and Regulation 14E thereunder, and with all other applicable laws,
and to
the extent required will file a Schedule TO or any other schedules required
under the Exchange Act or any other applicable laws.
3.09 Repurchase
at Option of Holder Upon a Fundamental Change.
(A) In
the
event any Fundamental Change (as defined below) shall occur, each Holder
of
Securities shall have the right (the “Fundamental
Change Repurchase Right”),
at
such Holder’s option, to require the Company to repurchase all of such Holder’s
Securities (or portions thereof that are integral multiples of $1,000 in
principal amount), on a date selected by the Company (the “Fundamental
Change Repurchase Date”),
which
Fundamental Change Repurchase Date shall be no later than thirty five (35)
days,
nor earlier than twenty (20) days, after the date the Fundamental Change
Notice
(as defined below) is mailed in accordance with Section
3.09(B),
at a
price, payable in cash, equal to one hundred percent (100%) of the principal
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amount
of
the Securities (or portions thereof) to be so repurchased (the “Fundamental
Change Repurchase Price”),
plus
accrued and unpaid interest, if any, to, but excluding, the Fundamental Change
Repurchase Date, upon:
(i) delivery
to the Company (if it is acting as its own Paying Agent), or to a Paying
Agent
designated by the Company for such purpose in the Fundamental Change Notice,
no
later than the close of business on the Business Day immediately preceding
the
Fundamental Change Repurchase Date, of a Purchase Notice, in the form set
forth
in the Securities or any other form of written notice substantially similar
thereto, in each case, duly completed and signed, with appropriate signature
guarantee, stating:
(a) the
certificate number(s) of the Securities which the Holder will deliver to
be
repurchased, if such Securities are in certificated form;
(b) the
principal amount of Securities to be repurchased, which must be $1,000 or
an
integral multiple thereof; and
(c) that
such
principal amount of Securities are to be repurchased pursuant to the terms
and
conditions specified in paragraph
9 of
the
Securities and in this Indenture; and
(ii) delivery
to the Company (if it is acting as its own Paying Agent), or to a Paying
Agent
designated by the Company for such purpose in the Fundamental Change Notice,
at
any time after the delivery of such Purchase Notice, of such Securities
(together with all necessary endorsements) with respect to which the Fundamental
Change Repurchase Right is being exercised;
provided,
however,
that if
such Fundamental Change Repurchase Date is after a record date for the payment
of an installment of interest and on or before the related interest payment
date, then the accrued and unpaid interest, if any, to, but excluding, such
interest payment date will be paid on such interest payment date to the Holder
of record of such Securities at the close of business on such record date
(without any surrender of such Securities by such Holder), and the Holder
surrendering such Securities for repurchase will not be entitled to any such
accrued and unpaid interest unless such Holder was also the Holder of record
of
such Securities at the close of business on such record date.
If
such
Securities are held in book-entry form through the Depositary, the Purchase
Notice shall comply with applicable procedures of the Depositary.
Upon
such
delivery of Securities to the Company (if it is acting as its own Paying
Agent)
or such Paying Agent, such Holder shall be entitled to receive from the Company
or such Paying Agent, as the case may be, a nontransferable receipt of deposit
evidencing such delivery.
Notwithstanding
anything herein to the contrary, any Holder that has delivered the Purchase
Notice contemplated by this Section
3.09(A) to
the
Company (if it is acting as its own Paying Agent) or to a Paying Agent
designated by the Company for such purpose in the Fundamental Change Notice
shall have the right to withdraw such Purchase Notice by delivery,
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at
any
time prior to the close of business on the Business Day immediately preceding
the Fundamental Change Repurchase Date, of a written notice of withdrawal
to the
Company (if acting as its own Paying Agent) or the Paying Agent, which notice
shall contain the information specified in Section
3.09(B)(xi).
The
Paying Agent shall promptly notify the Company of the receipt by it of any
Purchase Notice or written notice of withdrawal thereof.
(B) Within
twenty (20) Business Days after the occurrence of a Fundamental Change, the
Company shall mail, or cause to be mailed, to all Holders of record of the
Securities at their addresses shown in the register of the Registrar, and
to
beneficial owners as required by applicable law, a notice (the “Fundamental
Change Notice”)
of the
occurrence of such Fundamental Change and the Fundamental Change Repurchase
Right arising as a result thereof. The Company shall deliver a copy of the
Fundamental Change Notice to the Trustee and shall cause a copy to be published
at the expense of the Company in The
New York Times
or
The
Wall Street Journal or
another newspaper of national circulation.
Each
Fundamental Change Notice shall state:
(i) the
events causing the Fundamental Change;
(ii) the
date
of such Fundamental Change;
(iii) the
Fundamental Change Repurchase Date;
(iv) the
date
by which the Fundamental Change Repurchase Right must be exercised;
(v) the
Fundamental Change Repurchase Price plus accrued and unpaid interest, if
any,
to, but excluding, the Fundamental Change Repurchase Date;
(vi) the
names
and addresses of the Paying Agent and the Conversion Agent;
(vii) a
description of the procedures which a Holder must follow to exercise the
Fundamental Change Repurchase Right;
(viii) that,
in
order to exercise the Fundamental Change Repurchase Right, the Securities
must
be surrendered for payment of the Fundamental Change Repurchase Price plus
accrued and unpaid interest, if any, payable as herein provided upon Repurchase
Upon Fundamental Change;
(ix) that
the
Fundamental Change Repurchase Price, plus accrued and unpaid interest, if
any,
to, but excluding, the Fundamental Change Repurchase Date, forany Security
as to
which a Purchase Notice has been given and not withdrawn will be paid as
promptly as practicable, but in no event more than the later of such Fundamental
Change Repurchase Date and the time of delivery of the Security (together
with
all necessary endorsements) as described in clause
(viii)
above;
provided,
however,
that if
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such
Fundamental Change Repurchase Date is after a record date for the payment
of an
installment of interest and on or before the related interest payment date,
then
the accrued and unpaid interest, if any, to, but excluding, such interest
payment date will be paid on such interest payment date to the Holder of
record
of such Security at the close of business on such record date (without any
surrender of such Securities by such Holder), and the Holder surrendering
such
Security for repurchase will not be entitled to any such accrued and unpaid
interest unless such Holder was also the Holder of record of such Security
at
the close of business on such record date;
(x) that,
except as otherwise provided herein, on and after such Fundamental Change
Repurchase Date (unless there shall be a Default in the payment of the
consideration payable as herein provided upon Repurchase Upon Fundamental
Change), interest on Securities subject to Repurchase Upon Fundamental Change
will cease to accrue, and all rights of the Holders of such Securities shall
terminate, other than the right to receive, in accordance herewith, the
consideration payable as herein provided upon Repurchase Upon Fundamental
Change;
(xi) that
a
Holder will be entitled to withdraw its election in the Purchase Notice if
the
Company (if acting as its own Paying Agent), or the Paying Agent receives,
prior
to the close of business on the Business Day immediately preceding the
Fundamental Change Repurchase Date, or such longer period as may be required
by
law, a letter or telegram, telex or facsimile transmission (receipt of which
is
confirmed and promptly followed by a letter) setting forth (I) the name of
such
Holder, (II) a statement that such Holder is withdrawing its election to
have
Securities purchased by the Company on such Fundamental Change Repurchase
Date
pursuant to a Repurchase Upon Fundamental Change, (III) the certificate
number(s) of such Securities to be so withdrawn, if such Securities are in
certificated form, (IV) the principal amount of the Securities of such Holder
to
be so withdrawn, which amount must be $1,000 or an integral multiple thereof
and
(V) the principal amount, if any, of the Securities of such Holder that remain
subject to the Purchase Notice delivered by such Holder in accordance with
this
Section
3.09,
which
amount must be $1,000 or an integral multiple thereof;
(xii) the
Conversion Rate and any adjustments to the Conversion Rate that will result
from
such Fundamental Change;
(xiii) that
Securities with respect to which a Purchase Notice is given by a Holder may
be
converted pursuant to Article
X
only if
such Purchase Notice has been withdrawn in accordance with this Section
3.09
or if
there shall be a Default in the payment of the Fundamental Change Repurchase
Price or in the accrued and unpaid interest, if any, payable as herein provided
upon Repurchase Upon Fundamental Change; and
(xiv) the
CUSIP
number or numbers, as the case may be, of the Securities.
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At
the
Company’s request, the Trustee shall mail such Fundamental Change Notice in the
Company’s name and at the Company’s expense; provided,
however,
that
the form and content of such Fundamental Change Notice shall be prepared
by the
Company.
No
failure of the Company to give a Fundamental Change Notice shall limit any
Holder’s right to exercise a Fundamental Change Repurchase Right.
(C) Subject
to the provisions of this Section
3.09,
the
Company shall pay, or cause to be paid, the Fundamental Change Repurchase
Price,
plus accrued and unpaid interest, if any, to, but excluding, the Fundamental
Change Repurchase Date, with respect to each Security as to which the
Fundamental Change Repurchase Right shall have been exercised to the Holder
thereof as promptly as practicable, but in no event later than the later
of the
Fundamental Change Repurchase Date and the time such Security is surrendered
to
the Paying Agent; provided,
however,
that if
such Fundamental Change Repurchase Date is after a record date for the payment
of an installment of interest and on or before the related interest payment
date, then the accrued and unpaid interest, if any, to, but excluding, such
interest payment date will be paid on such interest payment date to the Holder
of record of such Security at the close of business on such record date,
and the
Holder surrendering such Security for repurchase will not be entitled to
any
such accrued and unpaid interest unless such Holder was also the Holder of
record of such Security at the close of business on such record
date.
(D) Prior
to
10:00 A.M., New York City time on a Fundamental Change Repurchase Date, the
Company shall deposit with a Paying Agent (or, if the Company is acting as
its
own Paying Agent, segregate and hold in trust in accordance with Section 2.04)
money,
in funds immediately available on the Fundamental Change Repurchase Date,
sufficient to pay the consideration payable as herein provided upon Repurchase
Upon Fundamental Change for all of the Securities that are to be repurchased
by
the Company on such Fundamental Change Repurchase Date pursuant to a Repurchase
Upon Fundamental Change. The Paying Agent shall return to the Company, as
soon
as practicable, any money not required for that purpose.
(E) Once
the
Fundamental Change Notice and the Purchase Notice have been duly given in
accordance with this Section 3.09,
the
Securities to be repurchased pursuant to a Repurchase Upon Fundamental Change
shall, on the Fundamental Change Repurchase Date, become due and payable
in
accordance herewith, and, on and after such date (unless there shall be a
Default in the payment of the consideration payable as herein provided upon
Repurchase Upon Fundamental Change), except as otherwise herein provided,
such
Securities shall cease to bear interest, and all rights of the Holders of
such
Securities shall terminate, other than the right to receive, in accordance
herewith, such consideration.
(F) Securities
with respect to which a Purchase Notice has been duly delivered in accordance
with this Section 3.09
may be
converted pursuant to Article
X,
if
otherwise convertible in accordance with Article
X,
only if
such Purchase Notice has been withdrawn in accordance with this Section
3.09
or if
there shall be a Default in the payment of the consideration payable as herein
provided upon Repurchase Upon Fundamental Change.
(G) If
any
Security shall not be paid upon surrender thereof for Repurchase Upon
Fundamental Change, the principal of, and accrued and unpaid interest on,
such
Security shall,
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until
paid, bear interest, payable in cash, at the rate borne by such Security
on the
principal amount of such Security, and such Security shall continue to be
convertible pursuant to Article
X.
(H) Any
Security which is to be submitted for Repurchase Upon Fundamental Change
only in
part shall be delivered pursuant to this Section 3.09
(with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly
executed by, the Holder thereof or its attorney duly authorized in writing),
and
the Company shall execute, and the Trustee shall authenticate and make available
for delivery to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, of the same tenor and in aggregate principal amount equal to the
portion
of such Security not duly submitted for Repurchase Upon Fundamental
Change.
(I) Notwithstanding
anything herein to the contrary, no Securities shall be repurchased by the
Company at the option of the Holders upon a Fundamental Change pursuant to
this
Section
3.09 if
the
principal amount of the Securities has been accelerated, and such acceleration
has not been rescinded, on or prior to the Fundamental Change Repurchase
Date
(except in the case of an acceleration resulting from a Default by the Company
in the payment of the Fundamental Change Repurchase Price with respect to
such
Securities). The Paying Agent will promptly return to the respective Holders
thereof any Securities held by it during the continuance of such
acceleration.
(J) Notwithstanding
anything herein to the contrary, if the option granted to Holders to require
the
repurchase of the Securities upon the occurrence of a Fundamental Change
is
determined to constitute a tender offer, the Company shall comply with all
applicable tender offer rules to the extent required under the Exchange Act,
including Rule 13e-4 and Regulation 14E thereunder, and with all other
applicable laws, and to the extent required will file a Schedule TO or any
other
schedules required under the Exchange Act or any other applicable
laws.
(K) As
used
herein and in the Securities,
a
“Fundamental
Change”
shall
be deemed to have occurred upon the occurrence of either a “Change in Control”
or a “Termination of Trading.”
(i) A
“Change
in Control”
shall
be deemed to have occurred at such time as:
(a) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the “beneficial owner” (as such term is used in Rule
13d-3 under the Exchange Act), directly or indirectly, of fifty percent (50%)
or
more of the Company’s Voting Stock (such an event, an “Acquisition
of Voting Control”);
or
(b) there
occurs a sale (other than a “sale
and leaseback”
transaction (as defined below) relating to one or more senior living or other
healthcare-related facilities), transfer, lease (the Company as lessor, but
not
as lessee), conveyance or other disposition of all or substantially all of
the
property or assets of the
-29-
Company,
or of all or substantially all of the property or assets of the Company and
the
Subsidiaries on a consolidated basis, to any “person” or “group” (as such terms
are used in Sections 13(d) and 14(d) of the Exchange Act), including any
group
acting for the purpose of acquiring, holding, voting or disposing of securities
within the meaning of Rule 13d-5(b)(1) under the Exchange Act (such an event,
an
“Asset
Sale Control Change”);
or
(c) the
Company consolidates with, or merges with or into, another person or any
person
consolidates with, or merges with or into, the Company, unless
either:
(1) the
persons that “beneficially owned” (as such term is used in Rule 13d-3 under the
Exchange Act), directly or indirectly, the shares of the Company’s Voting Stock
immediately prior to such consolidation or merger, “beneficially own,” directly
or indirectly, immediately after such consolidation or merger, shares of
the
surviving or continuing corporation’s Voting Stock representing at least a
majority of the total outstanding voting power of all outstanding classes
of the
Voting Stock of the surviving or continuing corporation in substantially
the
same proportion as such ownership immediately prior to such consolidation
or
merger; or
(2) at
least
ninety percent (90%) of the consideration (other than cash payments for
fractional shares or pursuant to statutory appraisal rights) in such
consolidation or merger consists of common stock and any associated rights
traded on a U.S. national securities exchange (or which will be so traded
or
quoted when issued or exchanged in connection with such consolidation or
merger), and, as a result of such consolidation or merger, the Securities
become
convertible solely into such common stock and associated rights
(such a
consolidation or merger that satisfies the conditions set forth in this
clause (2),
a
“Listed
Stock Business Combination”);
or
(d) the
following persons cease for any reason to constitute a majority of the Company’s
Board of Directors:
(1) individuals
who on the Issue Date constituted the Company’s Board of Directors;
and
(2) any
new
directors whose election to the Company’s Board of Directors or whose nomination
for election by the Company’s shareholders was approved by at least a majority
of the directors of the Company then still in office either who were directors
of the Company on the Issue Date or whose election or nomination for election
was previously so approved; or
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(e) the
Company is liquidated or dissolved or the holders of the Company’s Capital Stock
approve any plan or proposal for the liquidation or dissolution of the
Company.
A
“sale
and leaseback”
transaction means any arrangement, in the ordinary course of business and
consistent with past practice, between the Company and/or any of the
Subsidiaries and a real estate investment trust, bank, commercial lender
or
other third party that finances real estate assets, providing for the leasing
by
the Company and/or any of the Subsidiaries on a long-term basis of one or
more
senior living or other healthcare-related facilities being sold or transferred
by the Company and/or any of the Subsidiaries to such third party.
(ii) A
“Termination
of Trading”
is
deemed to occur if the Common Stock of the Company (or other common stock
into
which the Securities are then convertible) is neither listed for trading
on a
U.S. national securities exchange nor approved for trading on an established
automated over-the-counter trading market in
the
United States.
IV. COVENANTS
4.01 Payment
of Securities.
The
Company shall pay all amounts due with respect to the Securities on the dates
and in the manner provided in the Securities and this Indenture. All such
amounts shall be considered paid on the date due if the Paying Agent holds
(or,
if the Company is acting as Paying Agent, the Company has segregated and
holds
in trust in accordance with Section 2.04)
on that
date money sufficient to pay the amount then due with respect to the Securities
(unless there shall be a Default in the payment of such amounts to the
respective Holder(s)). The Company will pay, in money of the United States
that
at the time of payment is legal tender for payment of public and private
debts,
all amounts due in cash with respect to the Securities, which amounts shall
be
paid (A) in the case of a Security that is in global form, by wire transfer
of
immediately available funds to the account designated by the Depositary or
its
nominee; (B) in the case of a Security that is held, other than global form,
by
a Holder of more than five million dollars ($5,000,000) in aggregate principal
amount of Securities, by wire transfer of immediately available funds to
the
account specified by such Holder or, if such Holder does not specify an account,
by mailing a check to the address of such Holder set forth in the register
of
the Registrar; and (C) in the case of a Security that is held, other than
global
form, by a Holder of five million dollars ($5,000,000) or less in aggregate
principal amount of Securities, by mailing a check to the address of such
Holder
set forth in the register of the Registrar.
The
Company shall pay, in cash, interest on any overdue amount (including, to
the
extent permitted by applicable law, overdue interest) at the rate borne by
the
Securities.
4.02 Maintenance
of Office or Agency.
The
Company will maintain, or cause to be maintained, in the Borough of Manhattan,
The City of New York, an office or agency (which may be an office of the
Trustee
or an affiliate
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of
the
Trustee, Registrar or co-Registrar) where Securities may be surrendered for
registration of transfer or exchange, payment or conversion and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain, or fail to cause
to
maintain, any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices
and
demands may be made or served at the Corporate Trust Office of the
Trustee.
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 will give prompt written notice
to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
The
Company hereby designates the Corporate Trust Office of the Trustee as an
agency
of the Company in accordance with Section 2.03;
and
designates U.S. Bank National Association, c/o U.S. Bank Trust National
Association, 000 Xxxx Xxxxxx , Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 as an
agency
in the Borough of Manhattan, The City of New York where Securities may be
surrendered pursuant to the requirements of the first paragraph of
this
Section 4.02.
4.03 Rule
144A Information and Annual Reports.
(A) At
any
time when the Company is not subject to, or is in violation of, Sections
13 or
15(d) of the Exchange Act, the Company and the Guarantors shall promptly
provide
to the Trustee and shall, upon request, provide to any Holder, beneficial
owner
or prospective purchaser of Securities or shares of Common Stock issued upon
conversion of any Securities, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such
Securities or shares of Common Stock pursuant to Rule 144A. The Company and
the
Guarantors shall take such further action as any Holder or beneficial holder
of
such Securities or shares of Common Stock may reasonably request in writing
to
the extent required from time to time to enable such Holder or beneficial
holder
to sell its Securities or shares of Common Stock in accordance with Rule
144A,
as such rule may be amended from time to time.
(B) The
Company shall deliver to the Trustee, no later than the time such report
is
required to be filed with the SEC pursuant to the Exchange Act (including,
without limitation, to the extent applicable, any extension permitted by
Rule
12b-25 under the Exchange Act), a copy of each report the Company is required
to
file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act;
provided,
however,
that
the Company shall not be required to deliver to the Trustee any material
for
which the Company has sought and received confidential treatment by the SEC;
provided
further,
each
such report will be deemed to be so delivered to the Trustee if the Company
files such report with the SEC through the SEC’s XXXXX database no later than
the time such report is required to be filed with the SEC pursuant to the
Exchange Act
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(including,
without limitation, to the extent applicable, any extension permitted by
Rule
12b-25 under the Exchange Act). In the event the Company is at any time no
longer subject to the reporting requirements of Section 13 or Section 15(d)
of
the Exchange Act, the Company shall continue to provide to the Trustee and,
upon
request, to any Holder, within the time period that the Company would have
been
required to file such reports with the SEC (including, without limitation,
to
the extent applicable, any extension permitted by Rule 12b-25 under the Exchange
Act), 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 reporting requirements
of
Section 13 or Section 15(d) of the Exchange Act, including, with respect
to
annual information only, a report thereon by the Company’s certified independent
public accountants as such would be required in such reports filed with 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.
The
Company also shall comply with the other provisions of TIA § 314(a). Delivery of
such reports, information and documents to the Trustee is for informational
purposes only, and the Trustee’s receipt thereof 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).
4.04 Compliance
Certificate.
The
Company and each Guarantor (to the extent that such Guarantor is so required
under the TIA) shall deliver to the Trustee, within ninety (90) calendar
days
after the end of each fiscal year of the Company, or, if earlier, by the
date
the Company is, or would be, required to file with the SEC the Company’s annual
report (whether on Form 10-K under the Exchange Act or another appropriate
form)
for such fiscal year, an Officers’ Certificate stating whether or not the
signatories to such Officers’ Certificate know of any Default or Event of
Default by the Company in performing any of its obligations under this Indenture
or the Securities. If such signatories do know of any such Default or Event
of
Default, then such Officers’ Certificate shall describe the Default or Event of
Default and its status. As of the date hereof, the Company’s fiscal year end is
December 31; and the Company shall give prompt written notice to the Trustee
in
the event it shall at any time change its fiscal year.
4.05 Stay,
Extension and Usury Laws.
The
Company and each Guarantor 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, extension or usury law
wherever enacted, now or at any time hereafter in force, which may affect
the
covenants or the performance of this Indenture; and the Company and each
Guarantor (in each case, to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants
that it
will not, by resort to any such law, 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 has been
enacted.
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4.06 Corporate
Existence.
Subject
to Article
V,
the
Company will do or cause to be done all things necessary to preserve and
keep in
full force and effect its corporate existence and the corporate existence
of
each of its Subsidiaries, in accordance with the respective organizational
documents of the Company and of each Subsidiary, and the rights (charter
and
statutory), licenses and franchises of the Company and its Subsidiaries;
provided,
however,
that
the Company shall not be required to preserve any such right, license or
franchise, or the corporate existence of any Subsidiary, if in the good faith
judgment of the Board of Directors (i) such preservation or existence is
not
material to the conduct of business of the Company and (ii) the loss of such
right, license or franchise or the dissolution of such Subsidiary does not
have
a material adverse impact on the Holders.
4.07 Notice
of Default.
In
the
event that any Default or Event of Default shall occur, the Company shall
give
prompt written notice of such Default or Event of Default, and any remedial
action proposed to be taken, to the Trustee.
4.08 Further
Instruments and Acts.
Upon
request of the Trustee, the Company and each Guarantor shall execute and
deliver
such further instruments and do such further acts as may be reasonably necessary
or proper to carry out more effectively the purposes of this
Indenture.
4.09 Additional
Interest Notice.
In
the
event that the Company is required to pay additional interest to holders
of
Securities pursuant to the Registration Rights Agreement, the Company will
provide written notice (“Additional
Interest Notice”)
to the
Trustee of its obligation to pay additional interest no later than fifteen
(15)
calendar days prior to the proposed payment date for the additional interest
(or, if the applicable Event (as defined in the Registration Rights Agreement)
giving rise to the obligation to pay such additional interest occurs on or
after
the fifteenth (15th) calendar day before such payment date, no later than
the
Business Day after the date such Event occurs). Each Additional Interest
Notice
shall set forth the amount of Additional Interest to be paid by the Company
on
such payment date.
V. SUCCESSORS
5.01 When
Company May Merge, etc.
The
Company shall not consolidate with, or merge with or into, or sell, transfer,
lease, convey or otherwise dispose of all or substantially all of the property
or assets of the Company, or all or substantially all of the property or
assets
of the Company and the Subsidiaries on a consolidated basis, to another person,
whether in a single transaction or series of related transactions, unless
(i)
such other person is a corporation organized and existing under the laws
of the
United States, any State thereof or the District of Columbia; (ii) such person
assumes by
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supplemental
indenture all the obligations of the Company under the Securities and this
Indenture; and (iii) immediately after giving effect to such transaction
or
series of transactions, no Default or Event of Default shall exist.
The
Company shall deliver to the Trustee prior to the consummation of the proposed
transaction an Officers’ Certificate to the foregoing effect and an Opinion of
Counsel (which may rely upon such Officers’ Certificate as to the absence of
Defaults and Events of Default) stating that the proposed transaction and
such
supplemental indenture will, upon consummation of the proposed transaction,
comply with this Indenture.
5.02 Successor
Substituted.
Upon
any
consolidation, merger or any sale, transfer, lease, conveyance or other
disposition of all or substantially all of the property or assets of the
Company, or of all or substantially all of the property or assets of the
Company
and the Subsidiaries on a consolidated basis, the successor person formed
by
such consolidation or into which the Company is merged or to which such sale,
transfer, lease, conveyance or other disposition is made shall succeed to,
and,
except in the case of a lease, be substituted for, and may exercise every
right
and power of, and shall assume every duty and obligation of, the Company
under
this Indenture with the same effect as if such successor had been named as
the
Company herein. When the successor assumes all obligations of the Company
hereunder, except in the case of a lease, all obligations of the predecessor
shall terminate.
VI. DEFAULTS
AND REMEDIES
6.01 Events
of Default.
An
“Event
of Default”
occurs
if:
(i) the
Company fails to pay the principal of, or premium, if any, on, any Security
when
the same becomes due and payable, whether at maturity, upon Redemption, on
an
Option Purchase Date with respect to a Purchase at Holder’s Option, on a
Fundamental Change Repurchase Date with respect to a Repurchase Upon Fundamental
Change or otherwise;
(ii) the
Company fails to pay an installment of interest or additional interest on
any
Security when due, if such failure continues for thirty (30) days after the
date
when due;
(iii) the
Company fails to satisfy its conversion obligations upon exercise of a Holder’s
conversion rights pursuant hereto;
(iv) the
Company fails to timely provide a Fundamental Change Notice or an Option
Purchase Notice, as required by the provisions of this Indenture, or fails
to
timely provide any notice pursuant to, and in accordance with, Section
10.15(D);
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(v) the
Company fails to comply with any other term, covenant or agreement set forth
in
the Securities, the Guarantees or this Indenture and such failure continues
for
the period, and after the notice, specified below;
(vi) the
Company or any of its Subsidiaries defaults in the payment when due, after
the
expiration of any applicable grace period, of principal of, or premium, if
any,
or interest on, Indebtedness for money borrowed, in the aggregate principal
amount then outstanding of $10.0 million dollars ($10,000,000) or more, or
the
acceleration of Indebtedness of the Company or any of its Subsidiaries for
money
borrowed in such aggregate principal amount or more so that it becomes due
and
payable prior to the date on which it would otherwise become due and payable
and
such default is not cured or waived, or such acceleration is not rescinded,
within thirty (30) days after written notice to the Company by the Trustee
or to
the Company and the Trustee by Holders of at least twenty five percent (25%)
in
aggregate principal amount of the Securities then outstanding, each in
accordance with this Indenture;
(vii) the
Company or any of its Subsidiaries fails to pay final judgments, the aggregate
uninsured portion of which is at least $10.0 million dollars ($10,000,000),
and
such judgments are not bonded, paid or discharged within sixty (60)
days;
(viii) the
Company or any of its Significant Subsidiaries or any group of Subsidiaries
that
in the aggregate would constitute a Significant Subsidiary of the Company,
pursuant to, or within the meaning of, any Bankruptcy Law, insolvency law,
or
other similar law now or hereafter in effect or otherwise, either:
(A) commences
a voluntary case,
(B) consents
to the entry of an order for relief against it in an involuntary
case,
(C) consents
to the appointment of a Custodian of it or for all or substantially all of
its
property, or for all or substantially all of the property of it and its
subsidiaries on a consolidated basis, or
(D) makes
a
general assignment for the benefit of its creditors; or
(ix) a
court
of competent jurisdiction enters an order or decree under any Bankruptcy
Law
that:
(A) is
for
relief against the Company or any of its Significant Subsidiaries or any
group
of Subsidiaries that in the aggregate would constitute a Significant Subsidiary
of the Company in an involuntary case or proceeding, or adjudicates the Company
or any of its Significant Subsidiaries or any group of Subsidiaries that
in the
aggregate would constitute a Significant Subsidiary of the Company insolvent
or
bankrupt,
(B) appoints
a Custodian of the Company or any of its Significant Subsidiaries or any
group
of Subsidiaries that in the aggregate would constitute a
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Significant
Subsidiary of the Company for all or substantially all of the property of
the
Company or any such Significant Subsidiary or any group of Subsidiaries that
in
the aggregate would constitute a Significant Subsidiary of the Company, as
the
case may be, or
(C) orders
the winding up or liquidation of the Company or any of its Significant
Subsidiaries or any group of Subsidiaries that in the aggregate would constitute
a Significant Subsidiary of the Company,
and,
in
the case of each of the foregoing clauses (A), (B) and (C) of this Section
6.01(ix),
the
order or decree remains unstayed and in effect for at least ninety (90)
consecutive days.
The
term
“Bankruptcy
Law”
means
Title 11, U.S. Code or any similar Federal or State law for the relief of
debtors. The term “Custodian”
means
any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
A
Default
under clause
(v)
above is
not an Event of Default until (I) the Trustee notifies the Company in writing,
or the Holders of at least twenty five percent (25%) in aggregate principal
amount of the Securities then outstanding notify the Company and the Trustee
in
writing, of the Default and (II) the Default is not cured within sixty (60)
days
after receipt of such notice. Such notice must specify the Default, demand
that
it be remedied and state that the notice is a “Notice
of Default.”
If
the
Holders of at least twenty five percent (25%) in aggregate principal amount
of
the outstanding Securities request the Trustee in writing to give such notice
on
their behalf, the Trustee shall do so. When a Default is cured, it ceases
to
exist for all purposes under this Indenture.
6.02 Acceleration.
If
an
Event of Default (excluding an Event of Default specified in Section 6.01(viii)
or
(ix)
with
respect to the Company (but including an Event of Default specified in
Section
6.01(viii) or
(ix) solely
with respect to a Significant Subsidiary of the Company or any group of
Subsidiaries that in the aggregate would constitute a Significant Subsidiary
of
the Company)) occurs and is continuing, the Trustee by written notice to
the
Company, or the Holders of at least twenty five percent (25%) in aggregate
principal amount of the Securities then outstanding by written notice to
the
Company and the Trustee, may declare the Securities to be immediately due
and
payable in full. Upon such declaration, the principal of, and any premium
and
accrued and unpaid interest (including any additional interest) on, all
Securities shall be due and payable immediately. If an Event of Default
specified in Section 6.01(viii)
or
(ix) with
respect to the Company (excluding, for purposes of this sentence, an Event
of
Default specified in Section 6.01(viii)
or
(ix) solely
with respect to a Significant Subsidiary of the Company or any group of
Subsidiaries that in the aggregate would constitute a Significant Subsidiary
of
the Company) occurs, the principal of, and premium, and accrued and unpaid
interest (including any additional interest) on, all the Securities shall
ipso
facto become
and be immediately due and payable without any declaration or other act on
the
part of the Trustee or any Holder. The Holders of a majority in aggregate
principal amount of the Securities then outstanding by written notice to
the
Trustee may rescind or annul an acceleration and its consequences if (A)
the
rescission would
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not
conflict with any order or decree, (B) all existing Events of Default, except
the nonpayment of principal, premium or interest (including additional interest)
that has become due solely because of the acceleration, have been cured or
waived and (C) all amounts due to the Trustee under Section
7.07
have
been paid.
6.03 Other
Remedies.
Notwithstanding
any other provision of this Indenture, if an Event of Default occurs and
is
continuing, the Trustee may pursue any available remedy by proceeding at
law or
in equity to collect the payment of amounts due with respect to the Securities
or to enforce the performance of any provision of the Securities or this
Indenture.
The
Trustee may maintain a proceeding even if it does not possess any of the
Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute
a
waiver of or acquiescence in the Event of Default. All remedies are
cumulative.
6.04 Waiver
of Past Defaults.
Subject
to Sections 6.07
and
9.02,
the
Holders of a majority in aggregate principal amount of the Securities then
outstanding may, by written notice to the Trustee, waive any past Default
or
Event of Default and its consequences, other than (A) a Default or Event
of
Default in the payment of the principal of, or premium, if any, or interest
or
additional interest on, any Security, or in the payment of the Redemption
Price,
the Option Purchase Price or the Fundamental Change Repurchase Price (or
accrued
and unpaid interest, if any, payable as herein provided, upon Redemption,
Purchase at Holder’s Option or Repurchase Upon Fundamental Change), (B) a
Default or Event of Default arising from a failure by the Company to convert
any
Securities into shares of Common Stock in accordance with this Indenture
or (C)
any Default or Event of Default in respect of any provision of this Indenture
or
the Securities which, under Section
9.02,
cannot
be modified or amended without the consent of the Holder of each outstanding
Security affected. When a Default or an Event of Default is waived, it is
cured
and ceases to exist for all purposes under this Indenture. This Section
6.04
shall be
in lieu of TIA § 316(a)(1)(B), and, as permitted by the TIA, TIA § 316(a)(1)(B)
is hereby expressly excluded from this Indenture.
6.05 Control
by Majority.
The
Holders of a majority in aggregate principal amount of the Securities then
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction
that
conflicts with law or this Indenture, is unduly prejudicial to the rights
of
other Holders or would involve the Trustee in personal liability or expense
unless the Trustee is offered indemnity reasonably satisfactory to it;
provided,
that
the Trustee may take any other action deemed proper by the Trustee which
is not
inconsistent with such direction. This Section
6.05
shall be
in lieu of TIA § 316(a)(1)(A), and, as permitted by the TIA, TIA § 316(a)(1)(A)
is hereby expressly excluded from this Indenture.
-38-
6.06 Limitation
on Suits.
Except
as
provided in Section 6.07,
a
Securityholder may not institute any proceeding under this Indenture, or
for the
appointment of a receiver or a trustee, or for any other remedy under this
Indenture unless:
(i) the
Holder gives to the Trustee written notice of a continuing Event of
Default;
(ii) the
Holders of at least twenty five percent (25%) in aggregate principal amount
of
the Securities then outstanding make a written request to the Trustee to
pursue
the remedy;
(iii) such
Holder or Holders offer and, if requested, provide to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss, liability or expense
to
or of the Trustee in connection with pursuing such remedy;
(iv) the
Trustee does not comply with the request within sixty (60) days after receipt
of
such notice, request and offer of indemnity; and
(v) during
such sixty (60) day period, the Holders of a majority in aggregate principal
amount of the Securities then outstanding do not give the Trustee a direction
inconsistent with the request.
A
Securityholder may not use this Indenture to prejudice the rights of another
Securityholder or to obtain a preference or priority over another
Securityholder.
6.07 Rights
of Holders to Receive Payment.
Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of all amounts due with respect to the Securities, on or after the
respective due dates as provided herein, or to bring suit for the enforcement
of
any such payment on or after such respective dates, shall not be impaired
or
affected without the consent of the Holder.
Notwithstanding
any other provision of this Indenture, the right of any Holder to convert
the
Security in accordance with this Indenture, or to bring suit for the enforcement
of such right, shall not be impaired or affected without the consent of the
Holder.
6.08 Collection
Suit by Trustee.
If
an
Event of Default specified in Section 6.01(i)
or
(ii)
occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount due
with
respect to the Securities, including any unpaid and accrued
interest.
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6.09 Trustee
May File Proofs of Claim.
The
Trustee may file such proofs of claim and other papers or documents as may
be
necessary or advisable in order to have the claims of the Trustee, any
predecessor Trustee and the Securityholders allowed in any judicial proceedings
relative to the Company or its creditors or properties.
The
Trustee may collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or similar official
in any
judicial proceeding is hereby authorized by each Holder to make such payments
to
the Trustee and, in the event that the Trustee shall consent to the making
of
such payments directly to the Holders, to pay the Trustee any amount due
it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section
7.07.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote
in
respect of the claim of any Holder in any such proceeding.
6.10 Priorities.
If
the
Trustee collects any money pursuant to this Article
VI,
it
shall pay out the money in the following order:
|
First:
|
to
the Trustee for amounts due under Section 7.07;
|
|
|
Second:
|
to
Securityholders for all amounts due and unpaid on the Securities,
without
preference or priority of any kind, according to the amounts due
and
payable on the Securities; and
|
|
|
Third:
|
the
balance, if any, to the Company.
|
The
Trustee, upon prior written notice to the Company, may fix a record date
and
payment date for any payment by it to Securityholders pursuant to this
Section 6.10.
At
least fifteen (15) days before each such record date, the Trustee shall mail
to
each Holder and the Company a written notice that states such record date
and
payment date and the amount of such payment.
6.11 Undertaking
for Costs.
In
any
suit for the enforcement of any right or remedy under this Indenture or in
any
suit against the Trustee for any action taken or omitted by it as Trustee,
a
court in its discretion may require the filing by any party litigant in the
suit
other than the Trustee of an undertaking to pay the costs of the suit, and
the
court in its discretion may assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11
does
not
-40-
apply
to
a suit by the Trustee, a suit by a Holder pursuant to Section 6.07
or a
suit by Holders of more than ten percent (10%) in aggregate principal amount
of
the outstanding Securities.
VII. TRUSTEE
7.01 Duties
of Trustee.
(A) If
an
Event of Default known to the Trustee has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as
a
prudent person would exercise or use under the circumstances in the conduct
of
his or her own affairs.
(B) Except
during the continuance of an Event of Default known to the Trustee:
(i) the
Trustee need perform only those duties that are specifically set forth in
this
Indenture and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in
the
absence of bad faith, willful misconduct or negligence on its part, the Trustee
may conclusively rely, as to the truth of the statements and the correctness
of
the opinions expressed therein, upon certificates or opinions furnished to
the
Trustee and conforming to the requirements of this Indenture; but in the
case of
any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein).
(C) The
Trustee may not be relieved from liability for its own negligent action,
its own
negligent failure to act or its own willful misconduct, except
that:
(i) the
Trustee shall not be liable for any error of judgment made in good faith
by a
Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts;
(ii) the
Trustee shall not be liable with respect to any action it takes or omits
to take
in good faith in accordance with a direction received by it pursuant to
Section 6.05;
(iii) no
provision of this Indenture shall require the Trustee to expend or risk its
own
funds or incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall
have
reasonable grounds for believing that repayment of such funds or indemnity
satisfactory to it against such risk or liability is not reasonably assured
to
it; and
-41-
(iv) the
Trustee shall not be liable for any other action taken or omitted by it in
good
faith at the direction of the Company or the Holders of the Notes under
circumstances in which such direction is required by the express terms of
this
Indenture.
(D) Every
provision of this Indenture that in any way relates to the Trustee is subject
to
the provisions of this Section 7.01.
(E) The
Trustee shall not be liable for interest on any money received by it except
as
the Trustee may agree in writing with the Company. Money held in trust by
the
Trustee need not be segregated from other funds except to the extent required
by
law.
7.02 Rights
of Trustee.
(A) Subject
to Section
7.01,
the
Trustee may conclusively rely on any document believed by it to be genuine
and
to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document; if, however, the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled during normal business hours to examine the relevant books, records
and
premises of the Company, personally or by agent or attorney upon reasonable
prior written notice.
(B) Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate and/or an Opinion of Counsel. The Trustee shall not be liable
for
any action it takes or omits to take in good faith in reliance on such Officers’
Certificate or Opinion of Counsel.
(C) Any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order, and any resolution of the
Board
of Directors shall be sufficiently evidenced by a Board Resolution.
(D) The
Trustee may consult with counsel of its own selection, and the advice of
such
counsel or any Opinion of Counsel shall be full and complete authorization
and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
(E) The
Trustee may act through agents or attorneys and shall not be responsible
for the
misconduct or negligence of any agent or attorney appointed with due
care.
(F) The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its discretion, rights
or
powers conferred upon it by this Indenture.
(G) The
Trustee shall have no duty to inquire as to the performance of the Company
with
respect to the covenants contained in Article IV.
In
addition, the Trustee shall not be deemed to have knowledge of an Event of
Default except (i) any Default or Event of Default occurring pursuant to
Sections 6.01(i)
or
(ii)
(provided that the Trustee shall have received an Option Purchase Notice
or a
Fundamental Change Notice in respect of the amounts payable pursuant to a
Purchase at Holder’s Option or a Repurchase Upon Fundamental Change, as the case
may be) or (ii) any Default or Event of Default of which a Responsible Officer
of the Trustee shall have received written notification or obtained actual
knowledge. Delivery of
-42-
reports,
information and documents to the Trustee under Article IV
(other
than Sections 4.04
and
4.07)
is for
informational purposes only and the Trustee’s receipt of the foregoing 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 on Officers’ Certificates).
(H) Subject
to Section 7.01(A), the Trustee shall be under no obligation to exercise
any of
the rights or powers vested by this Indenture at the request or direction
of any
of the Holders pursuant to this Indenture unless such Holders shall have
offered
to the Trustee security or indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities which might be incurred by it
in
compliance with such request or direction.
(I) The
rights, privileges, protections, immunities and benefits given to the Trustee,
including without limitation, its right to be indemnified, are extended to,
and
shall be enforceable by, the Trustee in each of its capacities hereunder,
and
each agent, custodian and other Person employed to act hereunder.
(J) The
Trustee may request that the Company deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers authorized at such
time
to take specified actions pursuant to this Indenture, which Officers’
Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.
(K) The
grant
of a permissive right or power to the Trustee hereunder shall not be construed
to impose a mandatory duty to act.
7.03 Individual
Rights of Trustee.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Securities and may otherwise deal with the Company or any of its Affiliates
with the same rights the Trustee would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee, however, must comply with
Sections 7.10
and
7.11.
7.04 Trustee’s
Disclaimer.
The
Trustee makes no representation as to the validity or adequacy of this Indenture
or the Securities; the Trustee shall not be accountable for the Company’s use of
the proceeds from the Securities; and the Trustee shall not be responsible
for
any statement in the Securities other than its certificate of
authentication.
7.05 Notice
of Defaults.
If
a
Default or Event of Default occurs and is continuing as to which the Trustee
has
received written notice pursuant to the provisions of this Indenture, or
as to
which a Responsible Officer of the Trustee shall have actual knowledge, then
the
Trustee shall mail to each Holder a notice of the Default or Event of Default
within thirty (30) days after receipt of such notice or after acquiring such
knowledge, as applicable, unless such Default or Event of Default has been
cured
or waived; provided,
however,
that,
except in the case of a Default or Event of Default in
-43-
payment
of any amounts due with respect to any Security, the Trustee may withhold
such
notice if, and so long as it in good faith determines that, withholding such
notice is in the best interests of Holders.
7.06 Reports
by Trustee to Holders.
Within
sixty (60) days after each May 15, beginning with May 15, 2007, the Trustee
shall mail to each Securityholder if required by TIA § 313(a) a brief report
dated as of such May 15 that complies with TIA § 313(c). In such event, the
Trustee also shall comply with TIA § 313(b).
A
copy of
each report at the time of its mailing to Securityholders shall be mailed
by
first class mail to the Company and filed by the Trustee with the SEC and
each
stock exchange, if any, on which the Securities are listed. The Company shall
promptly notify the Trustee of the listing or delisting of the Securities
on or
from any stock exchange.
7.07 Compensation
and Indemnity.
The
Company shall pay to the Trustee from time to time such compensation for
its
services as shall be agreed upon in writing. The Trustee’s compensation shall
not be limited by any law on compensation of a trustee of an express trust.
The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it pursuant to, and in accordance with,
any
provision hereof. Such expenses shall include the reasonable compensation
and
out-of-pocket expenses of the Trustee’s agents, advisors and
counsel.
The
Company shall indemnify each of the Trustee, each predecessor Trustee and
their
respective agents for, and hold each of them harmless against, any and all
loss,
liability, damage, claim or expense (including the reasonable fees and expenses
of counsel and taxes other than those based upon the income of the Trustee)
incurred by it in connection with the acceptance or administration of this
trust
and the performance of its duties hereunder or in connection with enforcing
the
provisions of this Section
7.07,
including the reasonable costs and expenses of defending itself against any
claim (whether asserted by the Company, any Holder or any other Person) or
liability in connection with the exercise or performance of any of its powers
and duties hereunder. The Company need not pay for any settlement made without
its consent (which shall not be unreasonably withheld). The Trustee shall
notify
the Company promptly of any claim for which it may seek indemnification.
The
Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through the Trustee’s negligence, bad faith or
willful misconduct.
To
secure
the Company’s payment obligations in this Section 7.07,
the
Trustee shall have a lien prior to the Securities on all money or property
held
or collected by the Trustee, except that held in trust to pay amounts due
on
particular Securities.
The
indemnity obligations of the Company with respect to the Trustee provided
for in
this Section 7.07
shall
survive the termination of this Indenture and any resignation or removal
of the
Trustee.
-44-
When
the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(viii)
or
(ix)
occurs,
the expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
7.08 Replacement
of Trustee.
A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 7.08.
The
Trustee may resign by so notifying the Company in writing thirty (30) Business
Days prior to such resignation. The Holders of a majority in aggregate principal
amount of the Securities then outstanding may remove the Trustee by so notifying
the Trustee and the Company in writing and may appoint a successor Trustee
with
the Company’s consent. The Company may remove the Trustee if:
(i) the
Trustee fails to comply with Section 7.10;
(ii) the
Trustee is adjudged a bankrupt or an insolvent;
(iii) a
receiver or other public officer takes charge of the Trustee or its property;
or
(iv) the
Trustee becomes incapable of acting.
If
the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason, the Company shall promptly appoint a successor
Trustee.
If
a
successor Trustee does not take office within thirty (30) days after the
retiring Trustee resigns or is removed, the retiring Trustee (at the Company’s
expense), the Company or the Holders of at least ten percent (10%) in aggregate
principal amount of the outstanding Securities may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If
the
Trustee fails to comply with Section 7.10,
the
Company or any Holder may petition any court of competent jurisdiction for
the
removal of the Trustee and the appointment of a successor Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to
the
retiring Trustee and to the Company. Thereupon the resignation or removal
of the
retiring Trustee shall become effective, and the successor Trustee shall
have
all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Securityholders.
The
retiring Trustee shall promptly transfer all property held by it as Trustee
to
the successor Trustee, subject to the lien provided for in Section 7.07.
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7.09 Successor
Trustee by Merger, etc.
If
the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation,
the
successor corporation without any further act shall be the successor Trustee,
if
such successor corporation is otherwise eligible hereunder.
7.10 Eligibility;
Disqualification.
There
shall at all times be a Trustee hereunder that is a corporation organized
and
doing business under the laws of the United States of America or of any state
thereof or the District of Columbia, which Trustee (A) is authorized under
such
laws to exercise corporate trustee power, (B) is subject to supervision or
examination by federal or state authorities and (C) has a combined capital
and
surplus of at least $100 million as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA § 310(b). Nothing
in this Indenture shall prevent the Trustee from filing with the SEC the
application referred to in the penultimate paragraph of TIA §
310(b).
7.11 Preferential
Collection of Claims Against Company.
The
Trustee shall comply with TIA § 311(a), excluding any creditor relationship
listed in TIA § 311(b). A Trustee who has resigned or been removed shall be
subject to TIA § 311(a) to the extent indicated.
VIII. DISCHARGE
OF INDENTURE
8.01 Termination
of the Obligations of the Company.
This
Indenture shall cease to be of further effect if (a) either (i) all outstanding
Securities (other than Securities replaced pursuant to Section
2.07
hereof)
have been delivered to the Trustee for cancellation or (ii) all outstanding
Securities have become due and payable at their scheduled maturity or upon
Purchase at Holder’s Option, Redemption or Repurchase Upon Fundamental Change,
and in either case the Company irrevocably deposits, prior to the applicable
due
date, with the Trustee or the Paying Agent (if the Paying Agent is not the
Company or any of its Affiliates) cash, and, if applicable as herein provided
and in accordance herewith, such other consideration, sufficient to pay all
amounts due and owing on all outstanding Securities (other than Securities
replaced pursuant to Section
2.07
hereof)
on the Maturity Date or an Option Purchase Date, Redemption Date or Fundamental
Change Repurchase Date, as the case may be; (b) the Company pays to the Trustee
all other sums payable hereunder by the Company; (c) no Default or Event
of
Default with respect to the Securities shall exist on the date of such deposit;
(d) such deposit will not result in a breach or violation of, or constitute
a
Default or Event of Default under, this Indenture or any other agreement
or
instrument to which the Company is a party or by which it is bound; and (e)
the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for herein relating
to the satisfaction and discharge of this Indenture have been complied with;
provided,
however,
that
Sections
2.02,
2.03,
2.04,
2.05,
2.06,
2.07,
2.08,
2.15,
2.16,
2.17,
3.05,
3.08,
3.09,
4.01,
4.02,
4.05,
7.07
and
7.08
and
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Articles VIII
and
X
shall
survive any discharge of this Indenture until such time as the Securities
have
been paid in full and there are no Securities outstanding.
8.02 Application
of Trust Money.
The
Trustee shall hold in trust all money and other consideration deposited with
it
pursuant to Section 8.01
and
shall apply such deposited money and other consideration through the Paying
Agent and in accordance with this Indenture to the payment of amounts due
on the
Securities.
8.03 Repayment
to Company.
The
Trustee and the Paying Agent shall promptly notify the Company of, and pay
to
the Company upon the request of the Company, any excess money held by them
at
any time. Subject to the requirements of applicable law (including any
escheatment or abandoned property law that may be applicable), the Trustee
and
the Paying Agent shall pay to the Company upon the written request of the
Company any money held by them for the payment of the principal of, premium,
if
any, or any accrued and unpaid interest or additional interest on, the notes
that remains unclaimed for two (2) years; provided,
however,
that
the Trustee or such Paying Agent, before being required to make any such
repayment, may, at the expense of the Company, cause to be published once
in a
newspaper of general circulation in the City of New York or cause to be mailed
to each Holder, notice stating that such money remains unclaimed and that,
after
a date specified therein, which shall not be less than thirty (30) days from
the
date of such publication or mailing, any unclaimed balance of such money
then
remaining will be repaid to the Company. After payment to the Company,
Securityholders entitled to the money must look to the Company for payment
as
general creditors, subject to applicable law, and all liability of the Trustee
and the Paying Agent with respect to such money and payment shall, subject
to
applicable law, cease.
8.04 Reinstatement.
If
the
Trustee or Paying Agent is unable to apply any money and other consideration
in
accordance with Sections 8.01
and
8.02
by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the obligations of the Company under this Indenture and
the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Sections 8.01
and
8.02
until
such time as the Trustee or Paying Agent is permitted to apply all such money
and other consideration in accordance with Sections 8.01
and
8.02;
provided,
however,
that if
the Company has made any payment of amounts due with respect to any Securities
because of the reinstatement of its obligations, then the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or Paying Agent.
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IX. AMENDMENTS
9.01 Without
Consent of Holders.
The
Company and the Trustee may enter into a supplemental indenture to amend
or
supplement this Indenture or the Securities without notice to or the consent
of
any Securityholder:
(i) to
comply
with Sections 5.01
and
10.12;
(ii) to
make
any changes or modifications to this Indenture necessary in connection with
the
registration of the public offer and sale of the Securities under the Securities
Act pursuant to the Registration Rights Agreement or the qualification of
this
Indenture under the TIA;
(iii) to
secure
the obligations of the Company in respect of the Securities;
(iv) to
add to
the covenants of the Company described in this Indenture for the benefit
of
Securityholders or to surrender any right or power conferred upon the
Company;
(v) to
make
provisions with respect to adjustments to the Conversion Rate as required
by
this Indenture or to increase the Conversion Rate in accordance with this
Indenture; and
(vi) to
add
Subsidiary Guarantees with respect to the Securities, or remove Subsidiary
Guarantees as provided in this Indenture.
In
addition, the Company and the Trustee may enter into a supplemental indenture
without the consent of Holders of the Securities to cure any ambiguity, defect,
omission or inconsistency in this Indenture in a manner that does not,
individually or in the aggregate with all other modifications made or to
be made
to the Indenture, adversely affect the rights of any Holder.
9.02 With
Consent of Holders.
The
Company and the Trustee may enter into a supplemental indenture to amend
or
supplement this Indenture or the Securities without notice to any Securityholder
but with the written consent of the Holders of at least a majority in aggregate
principal amount of the outstanding Securities. Subject to Sections 6.04
and 6.07,
the
Holders of a majority in aggregate principal amount of the outstanding
Securities may, by written notice to the Trustee, waive compliance by the
Company with any provision of this Indenture or the Securities without notice
to
any other Securityholder. Notwithstanding anything herein to the contrary,
without the consent of each Holder of each outstanding Security affected,
an
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may
not:
-48-
(a) change
the stated maturity of the principal of, or the payment date of any installment
of interest or additional interest or any premium on, any Security;
(b) reduce
the principal amount of, or any premium, interest or additional interest
on, any
Security;
(c) change
the place, manner or currency of payment of principal of, or any premium,
interest or additional interest on, any Security;
(d) impair
the right to institute suit for the enforcement of any payment on, or with
respect to, or of the conversion of, any Security;
(e) modify,
in a manner adverse to Holders, the provisions with respect to the right
of
Holders pursuant to Article
III
to
require the Company to purchase Securities on an Option Purchase Date or
to
repurchase Securities upon the occurrence of a Fundamental Change;
(f) modify
the provisions of Section
2.18 in
a
manner adverse to Holders;
(g) adversely
affect the right of Holders to convert Securities in accordance with
Article
X;
(h) reduce
the percentage of the aggregate principal amount of the outstanding Securities
whose Holders must consent to a modification to or amendment of any provision
of
this Indenture or the Securities;
(i) reduce
the percentage of the aggregate principal amount of the outstanding Securities
whose Holders must consent to a waiver of compliance with any provision of
this
Indenture or the Securities or a waiver of any Default or Event of Default;
(j) modify
the provisions of this Indenture with respect to modification and waiver
(including waiver of a Default or an Event of Default), except to increase
the
percentage required for modification or waiver or to provide for the consent
of
each affected Holder; or
(k) modify
any Subsidiary Guarantee in any manner adverse to the Holders, except removal
of
Guarantors as provided in this Indenture.
Promptly
after an amendment, supplement or waiver under Section 9.01
or this
Section 9.02
becomes
effective, the Company shall mail, or cause to be mailed, to Securityholders
a
notice briefly describing such amendment, supplement or waiver. Any failure
of
the Company to mail such notice shall not in any way impair or affect the
validity of such amendment, supplement or waiver.
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It
shall
not be necessary for the consent of the Holders under this Section 9.02
to
approve the particular form of any proposed amendment, supplement or waiver,
but
it shall be sufficient if such consent approves the substance
thereof.
9.03 Compliance
with Trust Indenture Act.
Every
amendment, waiver or supplement to this Indenture or the Securities shall
comply
with the TIA as then in effect.
9.04 Revocation
and Effect of Consents.
Until
an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
is a continuing consent by the Holder and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting Holder’s
Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to its Security
or portion of a Security if the Trustee receives the notice of revocation
before
the date the amendment, supplement or waiver becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.
After
an
amendment, supplement or waiver becomes effective with respect to the
Securities, it shall bind every Holder unless such amendment, supplement
or
waiver makes a change that requires, pursuant to Section 9.02,
the
consent of each Holder affected. In that case, the amendment, supplement
or
waiver shall bind each Holder of a Security who has consented to it and,
provided that notice of such amendment, supplement or waiver is reflected
on a
Security that evidences the same debt as the consenting Holder’s Security, every
subsequent Holder of a Security or portion of a Security that evidences the
same
debt as the consenting Holder’s Security.
9.05 Notation
on or Exchange of Securities.
If
an
amendment, supplement or waiver changes the terms of a Security, the Trustee
may
require the Holder of the Security to deliver it to the Trustee. The Trustee
may
place an appropriate notation on the Security as directed and prepared by
the
Company about the changed terms and return it to the Holder. Alternatively,
if
the Company so determines, the Company in exchange for the Security shall
issue
and the Trustee shall authenticate a new Security that reflects the changed
terms.
9.06 Trustee
Protected.
The
Trustee shall sign any amendment, supplemental indenture or waiver authorized
pursuant to this Article IX;
provided,
however,
that
the Trustee need not sign any amendment, supplement or waiver authorized
pursuant to this Article IX
that
adversely affects the Trustee’s rights, duties, liabilities or immunities. The
Trustee shall be entitled to receive and conclusively rely upon an Opinion
of
Counsel as to legal matters and an Officers’ Certificate as to factual matters
that any supplemental indenture, amendment or waiver is permitted or authorized
pursuant to this Indenture and that all conditions precedent under this
Indenture, if any,
-50-
applicable
to the execution and delivery of such supplemental indenture, amendment or
waiver have been complied with.
9.07 Effect
of Supplemental Indentures.
Upon
the
due execution and delivery of any supplemental indenture in accordance with
this
Article
IX,
this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes, and, except
as
set forth in Sections
9.02 and 9.04,
every
Holder of Securities shall be bound thereby.
X. CONVERSION
10.01 Conversion
Privilege; Restrictive Legends.
(A) Subject
to the provisions of Article
III,
the
Securities shall be convertible into shares of Common Stock in accordance
with
this Article
X
at any
time prior to the close of business on the Business Day immediately preceding
the Maturity Date.
(B) The
initial Conversion Rate shall be 76.9231 shares of Common Stock per $1,000
principal amount of Securities. The Conversion Rate shall be subject to
adjustment in accordance with Sections
10.06
through
10.15.
(C) A
Holder
may convert a portion of the principal amount of a Security if such portion
is
$1,000 principal amount or an integral multiple of $1,000 principal amount.
Provisions of this Indenture that apply to conversion of all of a Security
also
apply to conversion of a portion of such Security.
(D) Any
shares of Common Stock that are issued upon conversion of a Security shall
bear
the Private Placement Legend until the second anniversary of the later of
the
Issue Date and the last date on which the Company or any Affiliate was the
owner
of such shares or the Security (or any predecessor security) from which such
shares were converted (or such shorter period of time as permitted by Rule
144(k) under the Securities Act or any successor provision thereunder) (or
such
longer period of time as may be required under the Securities Act or applicable
state securities laws, as set forth in an Opinion of Counsel, unless otherwise
agreed by the Company and the Holder thereof).
10.02 Conversion
Procedure.
(A) To
convert a Security, a Holder must satisfy the requirements of paragraph
10
of the
Securities. As soon as practicable but in no event more than three Business
Days
after the date (the “Conversion
Date”)
on
which the Holder satisfies all those requirements, the Company shall deliver
to
the Holder through the Conversion Agent a certificate for or, to the extent
permissible, in book-entry form through the Depository, the number of full
shares of Common Stock issuable upon the conversion, as provided in paragraph
10
of the
Securities, and a check for the amount of cash payable in lieu of any fractional
share; provided,
however,
that
any Make-Whole Consideration payable pursuant to Section
10.15
shall be
delivered by the Company within the time period specified in Section 10.15(D).
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(B) On
and
after the Conversion Date of a Security, the person in whose name any
certificate representing the Shares issuable upon such conversion is to be
registered shall be treated as a shareholder of record of the Company;
provided,
however,
that if
any such Shares constitute Make Whole Consideration, then such person shall
not
be treated as a shareholder of record as to such Shares constituting the
Make
Whole Consideration until the Effective Date of the applicable Make Whole
Consideration. On and after the Conversion Date with respect to a conversion
of
a Security pursuant hereto, all rights of the Holder of such Security shall
terminate, other than the right to receive the consideration deliverable
upon
conversion of such Security as provided herein. A Holder of Securities is
not
entitled, as such, to any rights of a holder of Common Stock until such Holder
has converted its Securities into shares of Common Stock or is deemed to
be a
shareholder of record of the Company, as provided in this Section
10.02(B),
and
then only to the extent such Securities are deemed to have been so converted
or
such Holder is so deemed to be a shareholder of record.
(C) Except
as
provided in the Securities or in this Article
X,
no
payment or adjustment will be made for accrued interest or additional interest
on a converted Security or for dividends on any Common Stock issued on or
prior
to conversion. If any Holder surrenders a Security for conversion after the
close of business on the record date for the payment of an installment of
interest and prior to the related interest payment date, then, notwithstanding
such conversion, the interest payable with respect to such Security on such
interest payment date shall be paid on such interest payment date to the
Holder
of record of such Security at the close of business on such record date;
provided,
however,
that
such Security, when surrendered for conversion, must be accompanied by payment
in cash to the Conversion Agent on behalf of the Company of an amount equal
to
the interest payable on such interest payment date on the portion so converted;
provided
further, however,
that
such payment to the Conversion Agent described in the immediately preceding
proviso in respect of a Security surrendered for conversion shall not be
required with respect to a Security that (i) is surrendered for conversion
after
the record date immediately preceding the Maturity Date, (ii) has been called
for Redemption pursuant to Section
3.04
and
paragraphs
6 and
7
of the
Securities or (iii) is surrendered for conversion after a record date for
the
payment of an installment of interest and on or before the related interest
payment date, where, pursuant to Section
3.09,
the
Company has specified, with respect to a Fundamental Change, a Fundamental
Change Repurchase Date that is after such record date and on or before such
interest payment date; provided
further,
that,
if the Company shall have, prior to the Conversion Date with respect to a
Security, defaulted in a payment of interest on such Security, then in no
event
shall the Holder of such Security who surrenders such Security for conversion
be
required to pay such defaulted interest or the interest that shall have accrued
on such defaulted interest pursuant to Section
2.12
or
otherwise (it being understood that nothing in this Section
10.02(C)
shall
affect the Company’s obligations under Section
2.12).
(D) If
a
Holder converts more than one Security at the same time, the number of full
shares of Common Stock issuable upon such conversion shall be based on the
total
principal amount of all Securities converted.
(E) Upon
surrender of a Security that is converted in part, the Trustee shall
authenticate for the Holder a new Security equal in principal amount to the
unconverted portion of the Security surrendered.
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(F) If
the
last day on which a Security may be converted is a Legal Holiday in a place
where a Conversion Agent is located, the Security may be surrendered to that
Conversion Agent on the next succeeding day that is not a Legal
Holiday.
10.03 Fractional
Shares.
The
Company will not issue fractional shares of Common Stock upon conversion
of
Securities and instead will deliver a check in an amount equal to the value
of
such fraction computed on the basis of the Closing Sale Price on the Trading
Day
immediately before the Conversion Date.
10.04 Taxes
on Conversion.
If
a
Holder converts its Security, the Company shall pay any documentary, stamp
or
similar issue or transfer tax or duty due on the issue, if any, of shares
of
Common Stock upon the conversion. However, such Holder shall pay any such
tax or
duty which is due because such shares are issued in a name other than such
Holder’s name. The Conversion Agent may refuse to deliver a certificate
representing the shares of Common Stock to be issued in a name other than
such
Holder’s name until the Conversion Agent receives a sum sufficient to pay any
tax or duty which will be due because such shares are to be issued in a name
other than such Holder’s name. Nothing herein shall preclude any tax withholding
required by law or regulation.
10.05 Company
to Provide Stock.
The
Company shall at all times reserve out of its authorized but unissued Common
Stock or Common Stock held in its treasury enough shares of Common Stock
to
permit the conversion, in accordance herewith, of all of the Securities into
shares of Common Stock. The shares of Common Stock due upon conversion of
a
Global Security shall be delivered by the Company in accordance with the
Depositary’s customary practices.
All
shares of Common Stock which may be issued upon conversion of the Securities
shall be validly issued, fully paid and non-assessable and shall be free
of
preemptive or similar rights and free of any lien or adverse claim.
The
Company shall comply with all securities laws regulating the offer and delivery
of shares of Common Stock upon conversion of Securities and shall list such
shares on each national securities exchange or automated quotation system
on
which the Common Stock is listed.
10.06 Adjustment
of Conversion Rate.
The
Conversion Rate shall be subject to adjustment from time to time as
follows:
(a) In
case
the Company shall (1) pay a dividend in shares of Common Stock to all holders
of
Common Stock, (2) make a distribution in shares of Common Stock to all holders
of Common Stock, (3) subdivide the outstanding shares of Common Stock into
a
greater number of shares of Common Stock or (4) combine the outstanding shares
of Common Stock into a smaller number of shares
-53-
of
Common
Stock, the Conversion Rate shall be adjusted by multiplying the Conversion
Rate
in effect immediately prior to close of business on the Ex Date or effective
date, as applicable, of such dividend, distribution, subdivision or combination,
by the number of shares of Common Stock that a person who owns only one share
of
Common Stock immediately before such Ex Date or effective date, as applicable,
of such dividend, distribution, subdivision or combination and who is entitled
to participate in such dividend, distribution, subdivision or combination
would
own immediately after giving effect to such dividend, distribution, subdivision
or combination (without giving effect to any arrangement pursuant to such
dividend, distribution, subdivision or combination not to issue fractional
shares of Common Stock). Any adjustment made pursuant to this Section 10.06(a)
shall
become effective immediately
prior to the open of business on such Ex
Date
in the case of a dividend or distribution and shall become effective on such
effective date in the case of a subdivision or combination.
(b) In
case
the Company shall issue rights or warrants to all or substantially all holders
of Common Stock, entitling them, for a period expiring not more than sixty
(60)
days immediately following the record date for the determination of holders
of
Common Stock entitled to receive such rights or warrants, to subscribe for
or
purchase shares of Common Stock (or securities convertible into or exchangeable
or exercisable for Common Stock), at a price per share (or having a conversion,
exchange or exercise price per share) that is less than the current market
price
(as determined pursuant to Section 10.06(g))
per
share of Common Stock on the record date for the determination of holders
of
Common Stock entitled to receive such rights or warrants, the Conversion
Rate
shall be increased by multiplying the Conversion Rate in effect immediately
prior to the Ex Date corresponding to such record date by a fraction of which
(A) the numerator shall be the sum of (I) the number of shares of Common
Stock
outstanding immediately
prior to the open of business on such Ex Date and
(II)
the
aggregate number of shares (the “Underlying
Shares”)
of
Common Stock underlying all such issued rights or warrants (whether by exercise,
conversion, exchange or otherwise), and (B) the denominator shall be the
sum of
(I) number of shares of Common Stock outstanding immediately
prior to the open of business on such Ex Date and (II) the
number of shares of Common Stock which the aggregate exercise, conversion,
exchange or other price at which the Underlying Shares may be subscribed
for or
purchased pursuant to such rights or warrants would purchase at such current
market price per share of Common Stock; provided,
however,
no
adjustment shall be made pursuant to this Section
10.06(b) solely
by
reason of a
distribution of rights pursuant to a shareholders’ rights plan, provided the
Company has complied with the provisions of Section
10.14
with
respect to such shareholders’ rights plan and distribution. Such increase shall
become effective immediately
prior to the open of business on such Ex Date.
In no
event shall the Conversion Rate be decreased pursuant to this Section
10.06(b).
(c) Except
as
set forth in the immediately following paragraph, in case the Company shall
dividend or distribute to all or substantially all holders of Common Stock
shares of Capital Stock of the Company or any existing or future
-54-
Subsidiary
(other than Common Stock), evidences of Indebtedness or other assets (other
than
dividends or distributions requiring an adjustment to the Conversion Rate
in
accordance with Sections
10.06(d) or
10.06(e)),
or
shall dividend or distribute to all or substantially all holders of Common
Stock
rights or warrants to subscribe for or purchase securities (other than dividends
or distributions of rights or warrants requiring an adjustment to the Conversion
Rate in accordance with Section 10.06(b)),
then
in each such case the Conversion Rate shall be increased
by multiplying the Conversion Rate in effect immediately prior to the open
of
business on the Ex Date corresponding to the record date for the determination
of shareholders
entitled to such dividend or distribution by a fraction of which (A) the
numerator shall be the current market price per share of Common Stock (as
determined pursuant to Section 10.06(g))
on such
record date and (B) the denominator shall be an amount equal to (I) such
current
market price per share of Common Stock less (II) the fair market value (as
determined in good faith by the Board of Directors, whose determination shall
be
conclusive and described in a Board Resolution), on such Ex Date, of the
portion
of the shares of Capital Stock, evidences of Indebtedness, assets, rights
and
warrants to be dividended or distributed applicable to one share of Common
Stock, such increase to become effective immediately prior to the open of
business on such Ex Date; provided,
however,
that if
such denominator is equal to or less than zero, then, in lieu of the foregoing
adjustment to the Conversion Rate, adequate
provision shall be made so that each Holder shall have the right to receive
upon
conversion of its Securities, in addition to any consideration otherwise
payable
as herein provided upon such conversion, an amount of shares
of
Capital Stock, evidences of Indebtedness, assets, rights and/or warrants
that
such
Holder would have received had such Holder converted all of its Securities
on
such record date. Notwithstanding the foregoing, in the event that the Company
shall distribute rights or warrants (other than distributions of rights or
warrants requiring an adjustment to the Conversion Rate in accordance with
Section 10.06(b))
(collectively, “Rights”)
pro
rata
to
holders of Common Stock, the Company may, in lieu of making any adjustment
pursuant to this Section 10.06(c),
make
proper provision so that each Holder of a Security who converts such Security
(or any portion thereof) on or after the record date for such distribution
and
prior to the expiration or redemption of the Rights shall be entitled to
receive
upon such conversion, in addition to the shares of Common Stock issuable
(and
cash, if any, payable) upon such conversion (the “Conversion
Shares”),
a
number of Rights to be determined as follows: (i) if such conversion occurs
on
or prior to the date for the distribution to the holders of Rights of separate
certificates evidencing such Rights (the “Distribution
Date”),
the
same number of Rights to which a holder of a number of shares of Common Stock
equal to the number of shares of Conversion Shares would be entitled at the
time
of such conversion in accordance with the terms and provisions of and applicable
to the Rights; and (ii) if such conversion occurs after the Distribution
Date,
the same number of Rights to which a holder of the number of shares of Common
Stock into which the principal amount of the Security so converted was
convertible immediately prior to the Distribution Date would have been entitled
on the Distribution Date in accordance with the terms and provisions of
and
-55-
applicable
to the Rights.
Any
distribution of rights or warrants pursuant to a shareholders’ rights plan
complying with the requirements set forth in the preceding sentence of this
paragraph and with Section
10.14
shall
not constitute a distribution of rights or warrants pursuant to this
Section
10.06(c).
In no
event shall the Conversion Rate be decreased pursuant to this Section
10.06(c).
Notwithstanding
anything to the contrary in this Section
10.06(c),
if, in
a distribution requiring an adjustment to the Conversion Rate pursuant to
the
immediately preceding paragraph, the property distributed by the Company
to all
Holders of Common Stock consists solely of Capital Stock, or similar equity
interests in, a Subsidiary or other business unit of the Company, which Capital
Stock or interests are, or will be upon completion of such distribution,
listed
on a national securities exchange and closing sale prices for such Capital
Stock
or interests are readily available (a “Spin-Off”),
then
in lieu of adjusting the Conversion Rate in accordance with the immediately
preceding paragraph, the Conversion Rate shall be increased (subject to the
other terms of this Indenture) by multiplying the Conversion Rate in effect
immediately prior to the opening of business on the thirteenth (13th) Trading
Day following the record date for such distribution by a fraction (I) whose
numerator is the sum of (A) the average of the Closing Sale Prices per share
of
Common Stock for the ten (10) consecutive Trading Days commencing on, and
including, the third (3rd) Trading Day after the record date for such
distribution and (B) the product of (i) the average of the Closing Sale Prices
per share or unit, as applicable, of such Capital Stock or interests (determined
as if such shares or units were shares of Common Stock for purposes of the
definition of “Closing Sale Price”) for the for the ten (10) consecutive Trading
Days commencing on, and including, the third (3rd) Trading Day after the
record
date for such distribution and (ii) number of shares or units, as applicable,
of
such Capital Stock or interests distributed per share of Common Stock; and
(II)
whose denominator is the average of the Closing Sale Prices per share of
Common
Stock for the ten (10) consecutive Trading Days commencing on, and including,
the third (3rd) Trading Day after the record date for such distribution.
The
average Closing Sale Prices referred to in the immediately preceding sentence
shall be subject to appropriate adjustments, in the Company’s good faith
determination,
to
account for other distributions, stock
splits and combinations, stock dividends, reclassifications and similar
events.
Each
adjustment to the Conversion Rate made pursuant to this paragraph shall
become effective immediately after the open of business on the thirteenth
(13th)
Trading Day following the record date for such distribution.
Rights
or
warrants distributed by the Company to all holders of Common Stock entitling
the
holders thereof to subscribe for or purchase shares of the Company’s Capital
Stock (either initially or under certain circumstances), which rights, options
or warrants, until the occurrence of a specified event or events (“Trigger
Event”):
(i)
are deemed to be transferred with such shares of Common Stock; (ii) are not
exercisable; and (iii) are also issued in respect of future issuances of
Common
Stock, shall be deemed not to have been distributed for purposes of this
Section
10.06 (and
no
adjustment to the Conversion Rate under this Section
-56-
10.06
will be
required) until the occurrence of the earliest Trigger Event, whereupon such
rights, options and warrants shall be deemed to have been distributed and
an
appropriate adjustment (if any is required) to the Conversion Rate shall
be made
under this Section
10.06(c).
In no
event shall the Conversion Rate be decreased pursuant to this Section
10.06(c).
(d) In
case
the Company shall, by dividend or otherwise, at any time make a distribution
of
cash (excluding any cash that is distributed as part of a distribution requiring
a Conversion Rate adjustment pursuant to Section
10.06(e))
to all
or substantially all holders of Common Stock, the Conversion Rate shall be
increased by multiplying the Conversion Rate in effect immediately
prior to the open of business on the Ex Date for such distribution by
a
fraction (A) whose numerator shall be the current market price per share
of
Common Stock (as determined pursuant to Section 10.06(g))
on such
Ex Date and (B) whose denominator shall be an amount equal to (I) such current
market price per share of Common Stock less (II) the
amount of the distribution per share of Common Stock;
provided,
however,
that
the Conversion Rate shall not be adjusted pursuant to this Section
10.06(d)
to the
extent, and only to the extent, such adjustment would cause the Conversion
Price
to be less than one cent ($0.01) (which minimum amount shall be subject to
appropriate adjustments, in the good faith determination of the Board
of
Directors (whose determination shall be described in a Board Resolution),
to
account for stock
splits and combinations, stock dividends, reclassifications and similar
events);
provided
further
that, if
the denominator of such fraction shall be equal to or less than zero, the
Conversion Rate shall be instead adjusted so that the Conversion Price is
equal
to one cent ($0.01) (as adjusted in accordance with the immediately preceding
proviso). An adjustment to the Conversion Rate pursuant to this Section
10.06(d)
shall
become effective immediately
prior to the open of business on such Ex Date.
In no
event shall the Conversion Rate be decreased pursuant to this Section
10.06(d).
(e) In
case
the Company or any Subsidiary shall distribute cash or other consideration
in
respect of a tender offer or exchange offer made by the Company or any
Subsidiary for all or any portion of the Common Stock where the sum of the
aggregate amount of such cash distributed and the aggregate fair market value
(as determined in good faith by the Board of Directors, whose determination
shall be conclusive and set forth in a Board Resolution), as of the Expiration
Date (as defined below), of such other consideration distributed (such sum,
the
“Aggregate
Amount”)
expressed as an amount per share of Common Stock validly tendered or exchanged,
and not withdrawn, pursuant to such tender offer or exchange offer as of
the
Expiration Time (as defined below) (such tendered or exchanged shares of
Common
Stock, the “Purchased
Shares”)
exceeds the current market price per share of Common Stock on the first Trading
Day after the last date (such last date, the “Expiration
Date”)
on
which tenders or exchanges could have been made pursuant to such tender offer
or
exchange offer (as the same may be amended through the Expiration Date),
then
the Conversion Rate shall be increased by multiplying the Conversion Rate
in
effect immediately prior to the close of business on the first Trading Day
after
the Expiration Date by
-57-
a
fraction (A) whose numerator is equal to the sum of (I) the Aggregate Amount
and
(II) the product of (a) the current market price per share of Common Stock
on
the first Trading Day after the Expiration Date and (b) an amount equal to
(i)
the number of shares of Common Stock outstanding as of the last time (the
“Expiration
Time”)
at
which tenders or exchanges could have been made pursuant to such tender offer
or
exchange offer (including all Purchased Shares) less (ii) the Purchased Shares
and (B) whose denominator is equal to the product of (I) the number of shares
of
Common Stock outstanding as of the Expiration Time (including all Purchased
Shares) and (II) the current market price per share of Common Stock on the
first
Trading Day after the Expiration Date.
An
increase, if any, to the Conversion Rate pursuant to this Section
10.06(e)
shall
become effective immediately prior to the open of business on the Business
Day
following the first Trading Day after the Expiration Date. In the event that
the
Company or a Subsidiary is obligated to purchase shares of Common Stock pursuant
to any such tender offer or exchange offer, but the Company or such Subsidiary
is permanently prevented by applicable law from effecting any such purchases,
or
all such purchases are rescinded, then the Conversion Rate shall again be
adjusted to be the Conversion Rate which would then be in effect if such
tender
offer or exchange offer had not been made. If the application of this
Section 10.06(e)
to any
tender offer or exchange offer would result in a decrease in the Conversion
Rate, no adjustment shall be made for such tender offer or exchange offer
under
this Section 10.06(e).
(f) In
addition to the foregoing adjustments in subsections
(a),
(b),
(c),
(d),
and (e)
above,
the Company, from time to time and to the extent permitted by law and the
continued listing requirements of the American Stock Exchange, may increase
the
Conversion Rate by any amount for a period of at least twenty (20) days or
such
longer period as may be permitted or required by law, if the Board of Directors
has made a determination, which determination shall be conclusive, that such
increase would be in the best interests of the Company, provided,
that
such increase will not cause the then effective Conversion Price to be less
than
$0.01. Such Conversion Rate increase shall be irrevocable during such period.
The Company shall give written notice to the Trustee and cause notice of
such
increase to be mailed to each Holder of Securities at such Holder’s address as
the same appears on the registry books of the Registrar, at least fifteen
(15)
days prior to the date on which such increase commences.
(g) For
the
purpose of any computation under subsections
(a),
(b),
(c) or (d)
above
of
this Section
10.06,
the
current market price per share of Common Stock on any date of determination
(the
“Determination
Date”)
shall
be deemed to be the average of the Closing Sale Prices for the ten (10)
consecutive Trading Days ending on, but excluding, the earlier of the
Determination Date and the Ex Date with respect to such issuance or
distribution; provided,
however,
that
such current market price per share of Common Stock shall be appropriately
adjusted by the Board of Directors, in its good faith determination (which
determination
-58-
shall
be
described in a Board Resolution),
to
account for any adjustment, pursuant hereto, to the Conversion Rate that
shall
become effective, or any event requiring, pursuant hereto, an adjustment
to the
Conversion Rate where the Ex Date of such event occurs, at any time during
the
period that begins on, and includes, the first day of such ten (10) consecutive
Trading Days and ends on, and includes, the date when the adjustment to the
Conversion Rate on account of the event requiring the computation of such
current market price becomes effective.
For
purposes of subsection
(e) above
of
this Section
10.06,
the
current market price per share of Common Stock on the first Trading Day after
the Expiration Date shall be deemed to be the Closing Sale Price of Common
Stock
on such date.
The
term
“Ex
Date,”
(i)
when used with respect to any issuance or distribution, means the first date
on
which the Common Stock trades the regular way on the relevant exchange or
in the
relevant market from which the Closing Sale Price was obtained without the
right
to receive such issuance or distribution, (ii) when used with respect to
any
subdivision or combination of shares of Common Stock, means the first date
on
which the Common Stock trades the regular way on such exchange or in such
market
after the time at which such subdivision or combination becomes effective,
and
(iii) when used with respect to any tender offer or exchange offer means
the
first date on which the Common Stock trades the regular way on such exchange
or
in such market after the expiration time of such tender offer or exchange
offer
(as it may be amended or extended).
For
purposes of determining the Ex Date with respect to an issuance or distribution
under this Indenture, the Company may conclusively assume (and such assumption
shall be binding upon the Holders) that purchases and sales of the relevant
security with respect to which such issuance or distribution is being made
will
settle based on the customary settlement cycle for purchases or sales of
such
security.
Unless
the context requires otherwise, the term “record
date”
means,
with respect to any dividend, distribution or other transaction or event
in
which the holders of shares of Common Stock have the right to receive any
cash,
securities or other property or in which the shares of Common Stock (or other
applicable security) is exchanged for or converted into any combination of
cash,
securities or other property, the date fixed for determination of stockholders
entitled to receive such cash, securities or other property (whether such
date
is fixed by the Board of Directors or by statute, contract or
otherwise).
10.07 No
Adjustment.
Notwithstanding
anything herein or in the Securities to the contrary, in no event shall the
Conversion Rate be adjusted pursuant to this Indenture or the Securities
to the
extent such adjustment shall reduce the Conversion Price to an amount that
is
less than the par value per share of Common Stock.
No
adjustment in the Conversion Rate pursuant to Section
10.06
shall be
required until cumulative adjustments amount to one percent (1%) or more
of the
Conversion Rate as last
-59-
adjusted
(or, if never adjusted, the initial Conversion Rate); provided,
however,
that any
adjustments to the Conversion Rate which by reason of this Section 10.07
are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment to the Conversion Rate; provided
further,
that at
the end of each fiscal year of the Company, beginning with the fiscal year
ending on December 31, 2006, any adjustments to the Conversion Rate that
have
been, and at such time remain, deferred pursuant to this Section 10.07
shall be
given effect, and such adjustments, if any, shall no longer be carried forward
and taken into account in any subsequent adjustment to the Conversion Rate;
provided
further,
that if
the Company shall mail a notice of Redemption pursuant to Section 3.04,
or if a
Fundamental Change or Make-Whole Fundamental Change occurs, then, in each
case,
any adjustments to the Conversion Rate that have been, and at such time remain,
deferred pursuant to this Section 10.07
shall be
given effect, and such adjustments, if any, shall no longer be carried forward
and taken into account in any subsequent adjustment to the Conversion Rate.
All
calculations under this Article X
shall be
made to the nearest cent or to the nearest one-millionth of a share, as the
case
may be.
Notwithstanding
anything herein or in the Securities to the contrary, if any rights, options
or
warrants issued by the Company and requiring an adjustment to the Conversion
Rate in accordance with Section
10.06
are only
exercisable upon the occurrence of certain triggering events, then the
Conversion Rate will not be adjusted as provided in Section
10.06
until
the earliest of such triggering event occurs. Upon the expiration, termination
or redemption of any such rights, options or warrants without the exercise
of
such rights, options or warrants, the Conversion Rate then in effect shall
be
adjusted immediately to the Conversion Rate which would have been in effect
at
the time of such expiration, termination or redemption had such rights, options
or warrants, to the extent outstanding immediately prior to such expiration,
termination or redemption, never been issued.
If
any
dividend or distribution is declared and the Conversion Rate is adjusted
pursuant to Section
10.06
on
account of such dividend or distribution, but such dividend or distribution
is
thereafter not paid or made, the Conversion Rate shall again be adjusted
to the
Conversion Rate which would then be in effect had such dividend or distribution
not been declared.
No
adjustment to the Conversion Rate need be made pursuant to Section
10.06
for a
transaction if each Holder is to participate in the transaction, at
substantially the same time that holders of Common Stock participate in such
transaction, without conversion as if such Holder held a number of shares
of
Common Stock equal to a fraction whose numerator is the product of the
Conversion Rate in effect at the Ex Date or effective date, as applicable,
of
the transaction (without giving effect to any adjustment pursuant to
Section
10.06
on
account of such transaction) and the aggregate principal amount of Securities
held by such Holder and whose denominator is one thousand (1,000).
Notwithstanding
anything herein to the contrary, in no event shall the Conversion Rate be
increased pursuant to Section
10.06(b),
Section
10.06(c),
Section
10.06(d)
or
Section
10.06(e) to
the
extent, but only to the extent, such increase shall cause the Conversion
Rate
applicable to such Security to exceed 96.7118 shares per $1,000 principal
amount
(the “BCF
Adjustment Cap”);
provided,
however,
that
the BCF Adjustment Cap shall be adjusted in the same manner in which the
Conversion Rate is to be adjusted pursuant to this Article
X
for
stock splits and combinations, stock dividends, reclassifications and similar
events.
-60-
10.08 Other
Adjustments.
In
the
event that, as a result of an adjustment made pursuant to Section 10.06
hereof,
the Holder of any Security thereafter surrendered for conversion shall become
entitled to receive any shares of Capital Stock other than shares of Common
Stock, thereafter the Conversion Rate of such other shares so receivable
upon
conversion of any Security shall be subject to adjustment from time to time
in a
manner and on terms as nearly equivalent as practicable to the provisions
with
respect to Common Stock contained in this Article X.
10.09 Adjustments
for Tax Purposes.
Except
as
prohibited by law the Company may (but is not obligated to) make such increases
in the Conversion Rate, in addition to those required by Section 10.06
hereof,
as it determines to be advisable in order that any stock dividend, subdivision
of shares, distribution of rights to purchase stock or securities or
distribution of securities convertible into or exchangeable for stock made
by
the Company or to its shareholders will not be taxable to the recipients
thereof
or in order to diminish any such taxation.
10.10 Notice
of Adjustment.
Whenever
the Conversion Rate is adjusted, the Company shall promptly mail to Holders
at
the addresses appearing on the Registrar’s books a notice of the adjustment and
file with the Trustee an Officers’ Certificate briefly stating the facts
requiring the adjustment and the manner of computing it. The certificate
shall
be conclusive evidence of the correctness of such adjustment.
10.11 Notice
of Certain Transactions.
In
the
event that:
(1) the
Company takes any action, or becomes aware of any event, which would require
an
adjustment in the Conversion Rate,
(2) the
Company takes any action that would require a supplemental indenture pursuant
to
Section 10.12,
or
(3) there
is
a dissolution or liquidation of the Company,
the
Company shall mail to Holders at the addresses appearing on the Registrar’s
books and the Trustee a written notice stating the proposed record, effective
or
expiration date, as the case may be, of any transaction referred to in
clause (1),
(2)
or
(3)
of this
Section 10.11.
The
Company shall mail such notice at least twenty (20) calendar days (or, in
the
case of any event that would require an adjustment in the Conversion Rate
pursuant to Sections
10.06(b),
10.06(c),
10.06(d)
or
10.06(e),
forty
five (45) calendar days) before such date; however, failure to mail such
notice
or any defect therein shall not affect the validity of any transaction referred
to in clause (1),
(2)
or
(3)
of this
Section 10.11.
-61-
10.12 Effect
of Reclassifications, Consolidations, Mergers, Binding Share Exchanges or
Sales
on Conversion Privilege.
If
any of
the following shall occur, namely: (i) any reclassification or change in
the
Common Stock issuable upon conversion of Securities (other than a change
only in
par value, or from par value to no par value, or from no par value to par
value,
or as a result of a subdivision or combination of Common Stock), (ii) any
consolidation, amalgamation, statutory arrangement, merger or binding share
exchange to which the Company is a party other than a merger in which the
Company is the continuing Person and which does not result in any
reclassification of, or change (other than a change in name, or par value,
or
from par value to no par value, or from no par value to par value or as a
result
of a subdivision or combination) in, the Common Stock or (iii) any sale,
transfer, lease, conveyance or other disposition of all or substantially
all of
the property or assets of the Company (or if the Company and/or the Subsidiaries
sell, transfer, lease, convey or otherwise dispose of all or substantially
all
of the property or assets of the Company and the Subsidiaries on a consolidated
basis), in each case pursuant to which the Common Stock would be converted
into
or exchanged for, or would constitute solely the right to receive, cash,
securities or other property, then the Company or such successor or purchasing
Person, as the case may be, shall, as a condition precedent to such
reclassification, change, consolidation, amalgamation, statutory arrangement,
merger, binding share exchange, sale, transfer, lease, conveyance or
disposition, execute and deliver to the Trustee a supplemental indenture
in form
reasonably satisfactory to the Trustee providing that, at and after the
effective time of such reclassification, change, consolidation, amalgamation,
statutory arrangement, merger, binding share exchange, sale, transfer, lease,
conveyance or disposition, the Holder of each Security then outstanding shall
have the right to convert such Security into the kind and amount of cash,
securities or other property (collectively, “Reference
Property”)
receivable upon such reclassification, change, consolidation, amalgamation,
statutory arrangement, merger, binding share exchange, sale, transfer, lease,
conveyance or disposition by a holder of a number of shares of Common Stock
equal to a fraction whose denominator is one thousand (1,000) and whose
numerator is the product of the principal amount of such Security and the
Conversion Rate in effect immediately prior to such reclassification, change,
consolidation, amalgamation, statutory arrangement, merger, binding share
exchange, sale, transfer, lease, conveyance or disposition (assuming, if
holders
of Common Stock shall have the opportunity to elect the form of consideration
to
receive pursuant to such reclassification, change, consolidation, amalgamation,
statutory arrangement, merger, binding share exchange, sale, transfer, lease,
conveyance or disposition, that the Collective Election shall have been made
with respect to such election). If holders of Common Stock shall have the
opportunity to elect the form of consideration to receive pursuant to such
reclassification, change, consolidation, amalgamation, statutory arrangement,
merger, binding share exchange, sale, transfer, lease, conveyance or
disposition, then the Company shall make adequate provision to give Holders,
treated as a single class, a reasonable opportunity to elect (the “Collective
Election”)
the
form of such consideration for purposes of determining the composition of
the
Reference Property referred to in the immediately preceding sentence, and
once
such election is made, such election shall apply to all Holders after the
effective time of such reclassification, change, consolidation, amalgamation,
statutory arrangement, merger, binding share exchange, sale, transfer, lease,
conveyance or disposition. Such Collective Election shall be determined based
on
the weighted average of the elections made by Holders of the Securities who
participate in such determination, shall be subject to any limitations to
which
all of the holders of Common Stock are subject, such as pro-rata
reductions
-62-
applicable
to any portion of the consideration payable in such reclassification, change,
consolidation, amalgamation, statutory arrangement, merger, binding share
exchange, sale, transfer, lease, conveyance or disposition, and shall be
conducted in such a manner as to be completed by the close of business on
the
actual effective date of such reclassification, change, consolidation,
amalgamation, statutory arrangement, merger, binding share exchange, sale,
transfer, lease, conveyance or disposition. The Company shall provide written
notice of the opportunity to determine the form of such consideration, as
well
as notice of the determination made by Holders, by issuing a press release
and
providing a copy of such notice to the Trustee.
The
supplemental indenture referred to in the first sentence of this Section 10.12
shall
provide for adjustments of the Conversion Rate which shall be as nearly
equivalent as may be practicable to the adjustments of the Conversion Rate
provided for in this Article X.
The
foregoing, however, shall not in any way affect the right a Holder of a Security
may otherwise have, pursuant to Section
10.06(b),
Section
10.06(c)
or
Section
10.14,
to
receive rights or warrants upon conversion of a Security. If, in the case
of any
such consolidation, amalgamation, statutory arrangement, merger, binding
share
exchange, sale, transfer, lease, conveyance or disposition, the stock or
other
securities and property (including cash) receivable thereupon by a holder
of
Common Stock includes shares of stock or other securities and property of
a
Person other than the successor or purchasing Person, as the case may be,
in
such consolidation, amalgamation, statutory arrangement, merger, binding
share
exchange, sale, transfer, lease, conveyance or disposition, then such
supplemental indenture shall also be executed by such other Person and shall
contain such additional provisions to protect the interests of the Holders
of
the Securities as the Board of Directors in good faith shall reasonably
determine necessary by reason of the foregoing (which determination shall
be
described in a Board Resolution). The provisions of this Section 10.12
shall
similarly apply to successive consolidations, mergers, binding share exchanges,
sales, transfers, leases, conveyances or dispositions.
In
the
event the Company shall execute a supplemental indenture pursuant to this
Section 10.12,
the
Company shall promptly file with the Trustee an Officers’ Certificate briefly
stating the reasons therefor, the kind or amount of shares of stock or
securities or property (including cash) receivable by Holders of the Securities
upon the conversion of their Securities after any such reclassification,
change,
consolidation, amalgamation, statutory arrangement, merger, binding share
exchange, sale, transfer, lease, conveyance or disposition and any adjustment
to
be made with respect thereto.
The
Company shall not become a party to any such reclassification, change,
consolidation, amalgamation, statutory arrangement, merger, binding share
exchange, sale, transfer, lease, conveyance or disposition unless the terms
thereof are consistent with this Section
10.12.
10.13 Trustee’s
Disclaimer.
The
Trustee has no duty to determine when an adjustment under this Article X
should
be made, how it should be made or what such adjustment should be, but may
accept
as conclusive evidence of the correctness of any such adjustment, and shall
be
protected in relying upon, the Officers’ Certificate with respect thereto which
the Company is obligated to file with the Trustee pursuant to Section 10.10
hereof.
The Trustee makes no representation as to the validity or
-63-
value
of
any securities or assets issued upon conversion of Securities, and the Trustee
shall not be responsible for the failure by the Company to comply with, and
shall not be under a duty independently to monitor or enforce the Company’s
compliance with, any provisions of this Article X.
The
Trustee shall not be under any responsibility to determine the correctness
of
any provisions contained in any supplemental indenture executed pursuant
to
Section 10.12,
but may
accept as conclusive evidence of the correctness thereof, and shall be protected
in relying upon, the Officers’ Certificate with respect thereto which the
Company is obligated to file with the Trustee pursuant to Section 10.12
hereof.
10.14 Rights
Distributions Pursuant to Shareholders’ Rights Plans.
Upon
conversion of any Security or a portion thereof, the Company shall make
provision such that the Holder thereof shall, to the extent such Holder is
to
receive shares of Common Stock upon such conversion, receive, in addition
to,
and concurrently with the delivery of, the consideration otherwise payable
hereunder upon such conversion, the rights described in the Rights Agreement
(as
the same may be amended, supplemented or replaced) and any future shareholders’
rights plan(s) of the Company then in effect; provided,
however,
that no
such provision need be made if the rights have been separated from the Common
Stock prior to the time of such conversion, but the provisions of Section
10.06(b)
shall
apply.
10.15 Increased
Conversion Rate Applicable to Certain Notes Surrendered in Connection With
Make-Whole Fundamental Changes.
(A) Notwithstanding
anything herein to the contrary, the Conversion Rate applicable to each Security
that is surrendered for conversion, in accordance with this Article
X,
at any
time during the period (the “Make-Whole
Conversion Period”)
that
begins on, and includes, the date that is thirty (30) calendar days prior
to the
date originally announced by the Company as the anticipated effective date
of a
Make-Whole Fundamental Change (which anticipated effective date the Company
shall disclose, in good faith, in the written notice, public announcement
and
publication referred to in Section
10.15(D))
and
ends on, and includes, the date that is forty (40) Business Days after the
actual effective date of such Make-Whole Fundamental Change (or, if such
Make-Whole Fundamental Change also constitutes a Fundamental Change, the
Fundamental Change Repurchase Date applicable to such Fundamental Change)
shall
be increased to an amount equal to the Conversion Rate that would, but for
this
Section
10.15,
otherwise apply to such Security pursuant to this Article
X,
plus an
amount equal to the Make-Whole Applicable Increase; provided,
however,
that
such increase to the Conversion Rate shall not apply if such
Make-Whole Fundamental Change is announced by the Company but shall not be
consummated.
The
additional consideration payable hereunder on account of any Make-Whole
Applicable Increase with
respect to a Security surrendered for conversion is herein referred to as
the
“Make-Whole
Consideration.”
The
Make-Whole Consideration due upon a conversion of a Security by a Holder
shall
be paid as soon as practicable after the Conversion Date of such conversion,
but
in no event
-64-
later
than the third (3rd) Business Day after the later of (1) the date such Holder
surrenders such Security for such conversion; and (2) the Effective Date
of the
applicable Make-Whole Fundamental Change.
(B) As
used
herein, “Make-Whole
Applicable Increase”
shall
mean, with respect to a Make-Whole Fundamental Change, the amount per $1,000
principal amount of Securities, set forth in the following table, which
corresponds to the effective date of such Make-Whole Fundamental Change (the
“Effective
Date”)
and
the Applicable Price of such Make-Whole Fundamental Change:
|
Effective
Date
|
||||||
|
Applicable
Price
|
October
12, 2006
|
October
15, 2007
|
October
15, 2008
|
October
15, 2009
|
October
15, 2010
|
October
20, 2011
|
|
$10.34
|
19.79
|
19.79
|
19.79
|
19.79
|
19.79
|
19.79
|
|
$12.50
|
14.35
|
14.80
|
13.35
|
11.49
|
8.90
|
3.08
|
|
$15.00
|
10.37
|
10.58
|
9.19
|
7.40
|
4.97
|
-
|
|
$17.50
|
7.91
|
8.05
|
6.82
|
5.27
|
3.30
|
-
|
|
$20.00
|
6.27
|
6.40
|
5.35
|
4.06
|
2.51
|
-
|
|
$22.50
|
5.12
|
5.25
|
4.36
|
3.30
|
2.07
|
-
|
|
$25.00
|
4.26
|
4.42
|
3.67
|
2.78
|
1.78
|
-
|
|
$27.50
|
3.61
|
3.79
|
3.15
|
2.40
|
1.57
|
-
|
|
$30.00
|
3.10
|
3.29
|
2.74
|
2.11
|
1.40
|
-
|
|
$32.50
|
2.68
|
2.88
|
2.41
|
1.87
|
1.26
|
-
|
|
$35.00
|
2.33
|
2.55
|
2.14
|
1.67
|
1.15
|
-
|
|
$37.50
|
2.04
|
2.27
|
1.91
|
1.51
|
1.04
|
-
|
|
$40.00
|
1.80
|
2.02
|
1.72
|
1.36
|
0.95
|
-
|
|
$42.50
|
1.59
|
1.82
|
1.55
|
1.24
|
0.87
|
-
|
|
$45.00
|
1.40
|
1.64
|
1.40
|
1.13
|
0.81
|
-
|
|
$47.50
|
1.24
|
1.48
|
1.27
|
1.03
|
0.74
|
-
|
|
$50.00
|
1.10
|
1.34
|
1.15
|
0.94
|
0.69
|
-
|
provided, however, that:
(i) if
the
actual Applicable Price of such Make-Whole Fundamental Change is between
two (2)
prices listed in the table above under the column titled “Applicable Price,” or
if the actual Effective Date of such Make-Whole Fundamental Change is between
two dates listed in the table above in the row immediately below the title
“Effective Date,” then the Make-Whole Applicable Increase for such Make-Whole
Fundamental Change shall be determined by linear interpolation between the
Make-Whole Applicable Increases set forth for such two prices, or for such
two
dates based on a three hundred and sixty five (365) day year, as
applicable;
(ii) if
the
actual Applicable Price of such Make-Whole Fundamental Change is greater
than
$50.00 per share (subject to adjustment as provided in Section
10.15(B)(iii)),
or if
the actual Applicable Price of such Make-Whole Fundamental Change is less
than
$10.34 per share (subject to adjustment as provided in Section
10.15(B)(iii)),
then
the Make-Whole Applicable Increase shall be equal to zero (0);
-65-
(iii) if
an
event occurs that requires, pursuant to this Article
X
(other
than solely pursuant to this Section
10.15),
an adjustment to the Conversion Rate, then, on the date and at the time such
adjustment is so required to be made, each price set forth in the table above
under the column titled “Applicable Price” shall be deemed to be adjusted so
that such price, at and after such time, shall be equal to the product of
(1)
such price as in effect immediately before such adjustment to such price
and (2)
a fraction whose numerator is the Conversion Rate in effect immediately before
such adjustment to the Conversion Rate and whose denominator is the Conversion
Rate to be in effect, in accordance with this Article
X,
immediately after such adjustment to the Conversion Rate;
(iv) each
Make-Whole Applicable Increase amount set forth in the table above shall
be
adjusted in the same manner in which, and for the same events for which,
the
Conversion Rate is to be adjusted pursuant to Section
10.01
through
Section
10.14;
and
(v) in
no
event shall the Conversion Rate applicable to any Security be increased pursuant
to this Section
10.15
to the
extent, but only to the extent, such increase shall cause the Conversion
Rate
applicable to such Security to exceed 96.7118 shares per $1,000 principal
amount
(the “BCF
Make-Whole Cap”);
provided,
however,
that
the BCF Make-Whole Cap shall be adjusted in the same manner in which, and
for
the same events for which, the Conversion Rate is to be adjusted pursuant
to
this Article
X
.
(C) As
used
herein, “Applicable
Price”
shall
have the following meaning with respect to a Make-Whole Fundamental Change:
(a)
if such Make-Whole Fundamental Change constitutes a transaction or series
of
related transactions in which the consideration (excluding cash payments
for
fractional shares or pursuant to statutory appraisal rights) for the Common
Stock in such Make-Whole Fundamental Change consists solely of cash, then
the
“Applicable Price” with respect to such Make-Whole Fundamental Change shall be
equal to the cash amount paid per share of Common Stock in such Make-Whole
Fundamental Change; (b) if such Make-Whole Fundamental Change constitutes
an
Asset Sale Control Change and the consideration paid for the property and
assets
of the Company consists solely of cash, then the “Applicable Price” with respect
to such Make-Whole Fundamental Change shall be equal to the cash amount paid
for
the property and assets of the Company, expressed as an amount per share
of
Common Stock outstanding on the Effective Date of such Make-Whole Fundamental
Change; and (c) in all other circumstances, the “Applicable Price” with respect
to such Make-Whole Fundamental Change shall be equal to the average of the
Closing Sale Prices per share of Common Stock for the five (5) consecutive
Trading Days immediately preceding the Effective Date of such Make-Whole
Fundamental Change, which average shall be appropriately adjusted by the
Board
of Directors, in its good faith determination (which
determination shall be described in a Board Resolution),
to
account for any adjustment, pursuant hereto, to the Conversion Rate that
shall
become effective, or any event requiring, pursuant hereto, an adjustment
to the
Conversion Rate where the Ex Date of such event occurs, at any time during
such
five (5) consecutive Trading Days.
(D) At
least
thirty (30) calendar days before the anticipated effective date of each proposed
Make-Whole Fundamental Change, the Company shall mail to each Holder at
their
-66-
address
appearing in the Securities Register, in accordance with Section
12.02,
written
notice of, and shall publicly announce, through a reputable national newswire
service, and publish on the Company’s website, the anticipated effective date of
such proposed Make-Whole Fundamental Change. Each such notice, announcement
and
publication shall also state that, in connection with such Make-Whole
Fundamental Change, the Company shall increase, in accordance herewith, the
Conversion Rate applicable to Securities entitled as provided herein to such
increase (along with a description of how such increase shall be calculated
and
the time periods during which Securities must be surrendered in order to
be
entitled to such increase).
No later
than the third Business Day after the Effective Date of each Make-Whole
Fundamental Change, the Company shall mail, in accordance with Section
12.02,
written
notice of, and shall publicly announce, through a reputable national newswire
service, and publish on the Company’s website, such Effective Date and the
Make-Whole Applicable Increase applicable to such Make-Whole Fundamental
Change.
(E) For
avoidance of doubt, the provisions of this Section
10.15
shall
not affect or diminish the Company’s obligations, if any, pursuant to
Article
IV
with
respect to a Make-Whole Fundamental Change.
(F) Nothing
in this Section
10.15
shall
prevent an adjustment to the Conversion Rate pursuant to Section
10.06
in
respect of a Make-Whole Fundamental Change.
XI. SUBSIDIARY
GUARANTEES
11.01 Guarantees.
Subject
to this Article
XI,
each of
the Guarantors hereby, jointly and severally, unconditionally guarantees
to each
Holder of a Security authenticated and delivered by the Trustee, to each
holder
of shares of Common Stock issued upon conversion of a Security and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Securities or the obligations of the
Company hereunder or thereunder, that: (a) the principal of, premium, if
any,
and interest or additional interest, if any, on the Securities will be promptly
paid in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and premium, if any,
and
interest or additional interest, if any, on the Securities or such shares,
if
lawful, and all other obligations of the Company to the Holders or the Trustee
hereunder or thereunder or under the Registration Rights Agreement will be
promptly paid in full or performed, all in accordance with the terms hereof
and
thereof; and (b) in case of any extension of time of payment or renewal of
any
Securities, any such shares or any of such other obligations, that the same
will
be promptly paid in full when due or performed in accordance with the terms
of
the extension or renewal, whether at stated maturity, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors shall be jointly
and severally obligated to pay the same immediately. Each Guarantor agrees
that
this is a guarantee of payment and not a guarantee of collection. For purposes
of this Article
XI,
“Holder” shall be deemed to include any holder of shares of Common Stock issued
upon conversion of a Security or issued pursuant to Article
III.
-67-
Subject
to this Article
XI,
each
Guarantor hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Securities
or
this Indenture, the absence of any action to enforce the same, any waiver
or
consent by any Holder of the Securities with respect to any provisions hereof
or
thereof, the recovery of any judgment against the Company, any action to
enforce
the same or any other circumstance which might otherwise constitute a legal
or
equitable discharge or defense of a guarantor. Notwithstanding the foregoing,
each Guarantor shall, with respect to any claim, action or proceeding against
such Guarantor relating to this Indenture, the Securities or such Guarantor’s
Subsidiary Guarantee, be entitled to assert a defense of prior payment or
performance by such Guarantor of the obligations that are the subject of
such
claim, action or proceeding. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event
of
insolvency or bankruptcy of the Company, any right to require a proceeding
first
against the Company, protest, notice and all demands whatsoever and covenants
that this Subsidiary Guarantee shall not be discharged except by complete
performance of the obligations contained in the Securities, this Indenture
and
the Registration Rights Agreement. Nothing in the foregoing sentence shall
affect the obligations contained in Section
6.06 of
this
Indenture.
If
any
Holder or the Trustee is required by any court or otherwise to return to
the
Company, the Guarantors or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or the Guarantors, any
amount
paid by the Company or any Guarantor either to the Trustee or to such Holder,
then each Subsidiary Guarantee, to the extent theretofore discharged, shall
be
reinstated in full force and effect.
Each
Guarantor agrees that it shall not be entitled to any right of subrogation
in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. Each Guarantor further
agrees that, as between the Guarantors, on the one hand, and the Holders
and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in this Indenture for the purposes
of the
Subsidiary Guarantees, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any acceleration of such obligations as provided
in this
Indenture, such obligations (whether or not due and payable) shall forthwith
become due and payable by the Guarantors for the purpose of the Subsidiary
Guarantees. The Guarantors shall have the right to seek contribution from
any
non-paying Guarantor so long as the exercise of such right does not impair
the
rights of the Holders under the Guarantee.
Each
Guarantor also agrees to pay any and all reasonable costs and expenses
(including reasonable attorneys' fees and expenses) incurred by the Trustee
in
enforcing any rights under this Article
XI.
11.02 Limitation
on Guarantor Liability.
Each
Guarantor, and, by its acceptance of Securities, each Holder, hereby confirms
that it is the intention of all such parties that the Subsidiary Guarantee
of
each Guarantor not constitute a fraudulent transfer or conveyance for purposes
of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable
to any
Subsidiary Guarantee. To effectuate the foregoing intention, the
-68-
Trustee,
the Holders and the Guarantors hereby irrevocably agree that the obligations
of
each Guarantor shall be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of such Guarantor that
are
relevant under such laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under
this
Article
XI,
result
in the obligations of such Guarantor under its Subsidiary Guarantee not
constituting a fraudulent transfer or conveyance.
11.03 Execution
and Delivery of Subsidiary Guarantees.
To
evidence its Subsidiary Guarantee set forth in Section
11.01,
each
Guarantor hereby agrees that a notation of such Subsidiary Guarantee
substantially in the form included in Exhibit
E
shall be
endorsed by an Officer of such Guarantor on each Security authenticated and
delivered by the Trustee and that this Indenture shall be executed on behalf
of
such Guarantor by one of its Officers.
Notwithstanding
the foregoing, each Guarantor hereby agrees that any failure by such Guarantor
to endorse on each Security a notation of such Subsidiary Guarantee shall
not
affect such Guarantor’s obligations under Section
11.01
or the
validity of such Guarantor’s Subsidiary Guarantee.
If
an
Officer whose signature is on this Indenture or on any Subsidiary Guarantee
no
longer holds that office at the time the Trustee authenticates the Security
on
which the Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall
nevertheless be valid.
The
delivery of any Security by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Subsidiary Guarantee set
forth
in this Indenture on behalf of the Guarantors.
11.04 Release,
Discharge Upon Merger or Consolidation and Termination.
(A) The
Company may at its option, from time to time, release and relieve any Guarantor
from all obligations under such Guarantor’s Subsidiary Guarantee, provided
that
as a
condition to such release, the Company shall cause one or more of its other
Subsidiaries, with revenues and operating expenses equal to or greater than
that
of the released Guarantor over the prior four fiscal quarters for which
financial statements are available, to become a replacement Guarantor. The
release of a Guarantor and the establishment of a new Subsidiary Guarantee
shall
be accomplished by a supplemental indenture to be executed by the Company,
the
Guarantor being released, the new replacement Guarantor and the Trustee.
(B) The
Company may at its option release and relieve any Guarantor from all obligations
under such Guarantor’s Subsidiary Guarantee, and any person acquiring assets
(including by way of merger or consolidation) or capital stock of such Guarantor
shall not be required to assume the obligations of Guarantor, in connection
with
(i) any sale or other disposition of all or substantially all of the assets
of
such Guarantor to a person that is not (either before or after giving effect
to
such transaction) a Guarantor and (ii) any sale of all the capital stock
of such
Guarantor to a person that is not (either before or after giving effect to
such
transaction) a Guarantor, provided
that:
-69-
(a) the
Company provides a replacement Guarantor(s) pursuant to this
Section 11.04;
or
(b)
the
circumstances described in Section
5.01
are
involved, in which case the provisions in Section
5.01
shall
govern (rather than clause (a) above).
(C) Each
Guarantor will be deemed released from all its obligations under this Indenture,
its Subsidiary Guarantee and the Registration Rights Agreement, and such
Subsidiary Guarantee will terminate upon the discharge of the Securities
pursuant to the provisions of Article
VIII
hereof.
Each Subsidiary Guarantee with respect to a Security will automatically
terminate immediately upon such Security's conversion and delivery of the
shares
of Common Stock and any other consideration payable in connection therewith.
XII. MISCELLANEOUS
12.01 Trust
Indenture Act Controls.
If
any
provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the TIA,
the
required provision of the TIA shall control.
12.02 Notices.
Deemed
to
be duly given if made in writing and delivered:
(A) by
hand
(in which case such notice shall be effective upon delivery);
(B) by
facsimile (in which case such notice shall be effective upon receipt of
confirmation of good transmission thereof); or
(C) by
overnight delivery by a nationally recognized courier service (in which case
such notice shall be effective on the Business Day immediately after being
deposited with such courier service, except that any notice to the Trustee
shall
not be deemed effective until delivery),
in
each
case to the recipient party’s address or facsimile number, as applicable, set
forth in this Section 12.02.
The
Company or the Trustee by notice to the other may designate additional or
different addresses or facsimile numbers for subsequent notices or
communications.
Any
notice or communication to a Holder shall be mailed to its address shown
on the
register kept by the Registrar. Failure to mail a notice or communication
to a
Holder or any defect in it shall not affect its sufficiency with respect
to
other Holders.
If
a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it; provided,
however,
that
notwithstanding the foregoing, any notice to the Trustee shall not be effective
until delivery.
-70-
If
the
Company mails a notice or communication to Holders, it shall mail a copy
to the
Trustee and each Agent at the same time. If the Trustee or the Securities
Agent
is required, pursuant to the express terms of this Indenture or the Securities,
to mail a notice or communication to Holders, the Trustee or the Securities
Agent, as the case may be, shall also mail a copy of such notice or
communication to the Company.
All
notices or communications shall be in writing.
The
Company’s address is:
Five
Star
Quality Care, Inc.
000
Xxxxxx Xxxxxx,
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
Chief Financial Officer
Facsimile:
(000) 000-0000
The
Trustee’s address is:
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx,
XX 00000
Attn:
Corporate Trust Services/Xxxxx X. Xxxxxxx
Facsimile:
(000) 000-0000
12.03 Communication
by Holders with Other Holders.
Holders
may communicate pursuant to TIA § 312(b) with other Holders with respect to
their rights under this Indenture or the Securities. The Company, the Trustee,
the Registrar and anyone else shall have the protection of TIA §
312(c).
12.04 Certificate
and Opinion as to Conditions Precedent.
Upon
any
request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee:
(i) an
Officers’ Certificate stating that, in the opinion of the signatories to such
Officers’ Certificate, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and
(ii) an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Each
signatory to an Officers’ Certificate or an Opinion of Counsel may (if so
stated) rely, effectively, upon an Opinion of Counsel as to legal matters
and an
Officers’ Certificate or certificates of public officials as to factual matters
if such signatory reasonably and in good faith believes in the accuracy of
the
document relied upon.
-71-
12.05 Statements
Required in Certificate or Opinion.
Each
Officers’ Certificate or Opinion of Counsel with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a
statement that the person making such certificate or opinion has read such
covenant or condition;
(ii) a
brief
statement as to the nature and scope of the examination or investigation
upon
which the statements or opinions contained in such certificate or opinion
are
based;
(iii) a
statement that, in the opinion of such person, he or she has made such
examination or investigation as is necessary to enable him or her to express
an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a
statement as to whether or not, in the opinion of such person, such condition
or
covenant has been complied with.
12.06 Rules
by Trustee and Agents.
The
Trustee may make reasonable rules for action by or at a meeting of Holders.
The
Registrar, Paying Agent or Conversion Agent may make reasonable rules and
set
reasonable requirements for their respective functions.
12.07 Legal
Holidays.
A
“Legal
Holiday”
is
a
Saturday, a Sunday or a day on which banking institutions are not required
to be
open in the City of New York, in the State of New York or in the city in
which
the Trustee’s Corporate Trust Office is located. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue
on that
payment for the intervening period.
A
“Business
Day”
is
a
day other than a Legal Holiday.
12.08 Duplicate
Originals.
The
parties may sign any number of copies of this Indenture. Each signed copy
shall
be an original, but all of them together represent the same agreement. Delivery
of an executed counterpart by facsimile shall be effective as delivery of
a
manually executed counterpart thereof.
12.09 Governing
Law.
The
laws
of the State of New York, without regard to principles of conflicts of law,
shall govern this Indenture and the Securities.
-72-
12.10 No
Adverse Interpretation of Other Agreements.
This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any of its Subsidiaries. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
12.11 Successors.
All
agreements of the Company in this Indenture and the Securities shall bind
its
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
12.12 Separability.
In
case
any provision in this Indenture or in the Securities shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby and a Holder
shall have no claim therefor against any party hereto.
12.13 Table
of Contents, Headings, etc.
The
Table
of Contents, Cross-Reference Table and headings of the Articles and Sections
of
this Indenture have been inserted for convenience of reference only, are
not to
be considered a part hereof and shall in no way modify or restrict any of
the
terms or provisions hereof.
12.14 Calculations
in Respect of the Securities.
The
Company and its agents shall make all calculations under this Indenture and
the
Securities in good faith. In the absence of manifest error, such calculations
shall be final and binding on all Holders. The Company shall provide a copy
of
such calculations to the Trustee as required hereunder, and, absent such
manifest error, the Trustee shall be entitled to conclusively rely on the
accuracy of any such calculation without independent verification.
[The
Remainder of This Page Intentionally Left Blank; Signature Page
Follows]
-73-
IN
WITNESS WHEREOF,
the
parties hereto have caused this Indenture to be duly executed as of the date
first above written.
|
FIVE
STAR QUALITY CARE, INC.
|
||
|
By:
/s/ Xxxxx X. Xxxxxx Xx.
|
||
|
Name:
Xxxxx X. Xxxxxx Xx.
|
||
|
Title:
Treasurer, Chief Financial Officer and
Assistant Secretary
|
||
|
FS
LAFAYETTE TENANT TRUST
|
||
|
FS
LEISURE PARK TENANT TRUST
|
||
|
FS
LEXINGTON TENANT TRUST
|
||
|
FS
TENANT POOL I TRUST
|
||
|
FS
TENANT POOL II TRUST
|
||
|
FS
TENANT POOL III TRUST
|
||
|
FS
TENANT POOL IV TRUST
|
||
|
By:
/s/ Xxxxx X. Xxxxxx Xx.
|
||
|
Name:
Xxxxx X. Xxxxxx Xx.
|
||
|
Title:
Treasurer, Chief Financial Officer and Assistant Secretary
|
||
|
U.S.
BANK NATIONAL ASSOCIATION
|
||
|
By:
/s/ Xxxxx X. Xxxxxxx
|
||
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
Vice President
|
EXHIBIT
A
[Face
of
Security]
FIVE
STAR QUALITY CARE, INC.
Certificate
No. _______
[INSERT
PRIVATE PLACEMENT LEGEND AND GLOBAL SECURITY LEGEND AS REQUIRED]
3.75%
Convertible Senior Note due 2026
CUSIP
No.
____________
Five
Star
Quality Care, Inc., a Maryland corporation (the “Company”),
for
value received, hereby promises to pay to Cede & Co., or its registered
assigns, the principal sum of _____________________ dollars ($__________)
on
October 15, 2026 and to pay interest thereon, as provided on the reverse
hereof,
until the principal and any unpaid and accrued interest are paid or duly
provided for.
Interest
Payment Dates: April 15 and October 15, with the first payment to be
made on
April 15, 2007.
Record
Dates: April 1 and October 1.
The
provisions on the back of this certificate are incorporated as if set
forth on
the face hereof.
IN
WITNESS WHEREOF,
FIVE
STAR QUALITY CARE, INC. has caused this instrument to be duly
signed.
|
FIVE
STAR QUALITY CARE, INC.
|
||
|
By:
__________________________
|
||
|
Name:
|
||
|
Title:
|
Dated:
________________
A-1
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Securities referred to in the within-mentioned
Indenture.
U.S.
BANK
NATIONAL ASSOCIATION, as
Trustee
By:
__________________________________
Authorized
Signatory
Dated:
__________________
A-2
[REVERSE
OF SECURITY]
FIVE
STAR QUALITY CARE, INC.
3.75% Convertible
Senior Note due 2026
1. Interest.
Five
Star Quality Care, Inc., a Maryland corporation (the “Company”),
promises to pay interest on the principal amount of this Security at the
rate
per
annum
shown
above. The Company will pay interest, payable semi-annually in arrears,
on April
15 and October 15 of each year, with the first payment to be made on April
15,
2007. Interest on the Securities will accrue on the principal amount from,
and
including, the most recent date to which interest has been paid or provided
for
or, if no interest has been paid, from, and including, October 18, 2006,
in each
case to, but excluding, the next interest payment date or Maturity Date,
as the
case may be. Interest will be computed on the basis of a 360-day year of
twelve
30-day months.
2. Maturity.
The
Securities will mature on October 15, 2026.
3. Method
of Payment.
Except
as provided in the Indenture (as defined below), the Company will pay interest
on the Securities to the persons who are Holders of record of Securities
at the
close of business on the record date set forth on the face of this Security
next
preceding the applicable interest payment date. Holders must surrender
Securities to a Paying Agent to collect the principal amount, Redemption
Price,
Option Purchase Price or Fundamental Change Repurchase Price of the Securities,
plus, if applicable, accrued and unpaid interest, if any, payable as herein
provided upon Redemption, Purchase at Holder’s Option or Repurchase Upon
Fundamental Change, as the case may be. The Company will pay, in money
of the
United States that at the time of payment is legal tender for payment of
public
and private debts, all amounts due in cash with respect to the Securities,
which
amounts shall be paid (A) in
the
case this Security is in global form, by wire transfer of immediately available
funds to the account designated by the Depositary or its nominee; (B) in
the
case this Security is held, other than global form, by a Holder of more
than
five million dollars ($5,000,000) in aggregate principal amount of Securities,
by wire transfer of immediately available funds to the account specified
by such
Holder or, if such Holder does not specify an account, by mailing a check
to the
address of such Holder set forth in the register of the Registrar; and
(C) in
the case this Security is held, other than global form, by a Holder of
five
million dollars ($5,000,000) or less in aggregate principal amount of
Securities, by mailing a check to the address of such Holder set forth
in the
register of the Registrar.
4. Paying
Agent, Registrar, Conversion Agent.
Initially, U.S. Bank National Association (the “Trustee”)
will
act as Paying Agent, Registrar and Conversion Agent. The Company may change
any
Paying Agent, Registrar or Conversion Agent without prior notice.
5. Indenture.
The
Company issued the Securities under an Indenture dated as of October 18,
2006
(the “Indenture”)
between the Company and the Trustee. The terms of the Securities include
those
stated in the Indenture and those made part of the Indenture by reference
to the
Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) (the “TIA”)
as
amended and in effect from time to time. The Securities are subject to
all such
terms, and Holders are referred
A-3
to
the
Indenture and the TIA for a statement of such terms. The Securities are
general
senior obligations of the Company limited to $126,500,000 aggregate principal
amount, except as otherwise provided in the Indenture (except for Securities
issued in substitution for destroyed, mutilated, lost or stolen Securities).
Terms used herein without definition and which are defined in the Indenture
have
the meanings assigned to them in the Indenture.
6. Optional
Redemption.
The
Company shall have the right, at the Company’s option, at any time, and from
time to time, on a Redemption Date on or after October 20, 2011, to redeem
all
or any part of the Securities at a price payable in cash equal to one hundred
percent (100%) of the principal amount of the Securities to be redeemed,
plus
accrued and unpaid interest, if any, to, but excluding, the Redemption
Date.
Upon
surrender to the Paying Agent of a Security subject to Redemption, such
Security
shall be paid, to the Holder surrendering such Security, at the Redemption
Price
plus accrued and unpaid interest to, but excluding, the Redemption Date,
unless
the Redemption Date is after a record date for the payment of an installment
of
interest and on or before the related interest payment date, in which case
accrued and unpaid interest to, but excluding, such interest payment date
will
be paid, on such interest payment date, to the Holder of record of such
Security
at the close of business on such record date, and the Holder surrendering
such
Security shall not be entitled to any such interest unless such Holder
was also
the Holder of record of such Security at the close of business on such
record
date. The Company will make at least ten (10) semi-annual interest payments
with
respect to the Securities prior to redeeming any Securities under this
paragraph
6.
7. Notice
of Redemption.
Notice
of Redemption will be mailed at least thirty (30) days but not more than
sixty
(60) days before the Redemption Date to each Holder of Securities to be
redeemed
at its address appearing in the security register. Securities in denominations
larger than $1,000 principal amount may be redeemed in part but only in
integral
multiples of $1,000 principal amount.
8. Purchase
by the Company at the Option of the Holder.
Subject
to the terms and conditions of the Indenture, the Company shall become
obligated
to purchase, at the option of each Holder, the Securities held by such
Holder on
October 15, 2013, October 15, 2016 and October 15, 2021 (each, an “Option
Purchase Date”)
at an
Option Purchase Price, payable in cash, equal to one hundred percent (100%)
of
the principal amount of the Securities to be purchased, plus accrued and
unpaid
interest, if any, to, but excluding, the applicable Option Purchase Date,
upon
delivery of a Purchase Notice containing the information set forth in the
Indenture, at any time from the opening of business on the date that is
twenty
(20) Business Days prior to the applicable Option Purchase Date until the
close
of business on the Business Day immediately preceding the applicable Option
Purchase Date and upon delivery of the Securities to the Paying Agent by
the
Holder as set forth in the Indenture; provided,
however,
that
that such accrued and unpaid interest shall be paid to the Holder of record
of
such Securities at the close of business on the record date immediately
preceding such Option Purchase Date
X-0
0. Xxxxxxxxxx
at Option of Holder Upon a Fundamental Change.
Subject
to the terms and conditions of the Indenture, in the event of a Fundamental
Change, each Holder of the Securities shall have the right, at the Holder’s
option, to require the Company to repurchase such Holder’s Securities including
any portion thereof which is $1,000 in principal amount or any integral
multiple
thereof on a date selected by the Company (the “Fundamental
Change Repurchase Date”),
which
date is no later than thirty five (35) days, nor earlier than twenty (20)
days,
after the date on which notice of such Fundamental Change is mailed in
accordance with the Indenture, at a price payable in cash equal to one
hundred
percent (100%) of the principal amount of such Security, plus accrued and
unpaid
interest to, but excluding, the Fundamental Change Repurchase Date;
provided,
however,
that if
such Fundamental Change Repurchase Date is after a record date for the
payment
of an installment of interest and on or before the related interest payment
date, then the accrued and unpaid interest, if any, to, but excluding,
such
interest payment date will be paid on such interest payment date to the
Holder
of record of such Securities at the close of business on such record date,
and
the Holder surrendering such Securities for repurchase will not be entitled
to
any such accrued and unpaid interest unless such Holder was also the Holder of
record of such Securities at the close of business on such record
date.
10. Conversion.
Subject
to earlier Maturity, Redemption, Purchase at Holder’s Option or Repurchase Upon
Fundamental Change, Holders may surrender Securities in integral multiples
of
$1,000 principal amount for conversion into shares of Common Stock in accordance
with Article
X
of the
Indenture.
To
convert a Security, a Holder must (1) complete and sign the Conversion
Notice,
with appropriate signature guarantee, on the back of the Security, (2)
surrender
the Security to a Conversion Agent, (3) furnish appropriate endorsements
and
transfer documents if required by the Registrar or Conversion Agent, (4)
pay the
amount of interest, if any, the Holder must pay in accordance with the
Indenture
and (5) pay any tax or duty if required pursuant to the Indenture. A Holder
may
convert a portion of a Security if the portion is $1,000 principal amount
or an
integral multiple of $1,000 principal amount.
Notwithstanding
anything herein to the contrary, no Security may be converted after the
close of
business on the Business Day immediately preceding the Maturity
Date.
The
initial Conversion Rate is 76.9231 shares of Common Stock per $1,000 principal
amount of Securities (which results in an effective initial Conversion
Price of
$13.00 per share) subject to adjustment in the event of certain circumstances
as
specified in the Indenture. The Company will deliver cash in lieu of any
fractional share. On conversion, no payment or adjustment for any unpaid
and
accrued interest or additional interest on the Securities will be made.
If a
Holder surrenders a Security for conversion after the close of business
on the
record date for the payment of an installment of interest and prior to
the
related interest payment date, such Security, when surrendered for conversion,
must be accompanied by payment of an amount equal to the interest thereon
which
the registered Holder at the close of business on such record date is to
receive; provided,
however,
that
such payment of an amount equal to the interest described in the immediately
preceding sentence in respect of a Security surrendered for
A-5
conversion
shall not be required with respect to a Security that (i) is surrendered
for
conversion after the record date immediately preceding the Maturity Date,
(ii)
has been called for Redemption pursuant to Section
3.04
of the
Indenture and paragraphs
6 and
7
herein
or (iii) is surrendered for conversion after a record date for the payment
of an
installment of interest and on or before the related interest payment date,
where, pursuant to Section
3.09 of
the
Indenture, the Company has specified, with respect to a Fundamental Change,
a
Fundamental Change Repurchase Date that is after such record date and on
or
before such interest payment date; provided
further,
that,
if the Company shall have, prior to the Conversion Date with respect to
a
Security, defaulted in a payment of interest on such Security, then in
no event
shall the Holder of such Security who surrenders such Security for conversion
be
required to pay such defaulted interest or the interest that shall have
accrued
on such defaulted interest pursuant to Section
2.12
of the
Indenture or otherwise
The
Conversion Rate applicable to each Security that is surrendered for conversion,
in accordance with the Securities and Article
X
of the
Indenture, at any time during the Make-Whole Conversion Period with respect
to a
Make-Whole Fundamental Change shall be increased to an amount equal to
the
Conversion Rate that would, but for Section
10.15
of the
Indenture,
otherwise apply to such Security pursuant to Article
X
of the
Indenture,
plus an
amount equal to the Make-Whole
Applicable Increase;
provided,
however,
that
such increase to the Conversion Rate shall not apply if such
Make-Whole Fundamental Change is announced by the Company but shall not
be
consummated.
11. Denominations,
Transfer, Exchange.
The
Securities are in registered form, without coupons, in denominations of
$1,000
principal amount and integral multiples of $1,000 principal amount. The
transfer
of Securities may be registered and Securities may be exchanged as provided
in
the Indenture. The Registrar may require a Holder, among other things,
to
furnish appropriate endorsements and transfer documents. No service charge
shall
be made for any such registration of transfer or exchange, but the Company
may
require payment of a sum sufficient to cover any tax or similar governmental
charge that may be imposed in connection with certain transfers or exchanges.
The Company or the Trustee, as the case may be, shall not be required to
register the transfer of or exchange any Security (i) during a period beginning
at the opening of business fifteen (15) days before the mailing of a notice
of
redemption of the Securities selected for Redemption under Section 3.04
of the
Indenture and ending at the close of business on the day of such mailing
or (ii)
for a period of fifteen (15) days before selecting, pursuant to Section
3.03
of the
Indenture, Securities to be redeemed or (iii) that has been selected for
Redemption or for which a Purchase Notice has been delivered, and not withdrawn,
in accordance with the Indenture, except the unredeemed or unrepurchased
portion
of Securities being redeemed or repurchased in part.
12. Persons
Deemed Owners.
The
registered Holder of a Security may be treated as the owner of such Security
for
all purposes.
13. Merger
or Consolidation.
The
Company shall not consolidate with, or merge with or into, or sell, transfer,
lease, convey or otherwise dispose of all or substantially all of the property
or assets of the Company, or all or substantially all of the property or
assets
of the Company and the Subsidiaries on a consolidated basis, to another
person,
whether in a single transaction or series of related transactions, unless
(i)
such other person is a corporation
A-6
organized
and existing under the laws of the United States, any State thereof or
the
District of Columbia; (ii) such person assumes by supplemental indenture
all the
obligations of the Company under the Securities and the Indenture; and
(iii)
immediately after giving effect to the transaction, no Default or Event
of
Default shall exist.
14. Amendments,
Supplements and Waivers.
Subject
to certain exceptions, the Indenture or the Securities may be amended or
supplemented with the consent of the Holders of at least a majority in
aggregate
principal amount of the outstanding Securities, and certain existing Defaults
or
Events of Default may be waived with the consent of the Holders of a majority
in
aggregate principal amount of the Securities then outstanding. In accordance
with the terms of the Indenture, the Company and the Trustee may enter
into a
supplemental indenture to amend or supplement this Indenture or the Securities
without notice to or the consent of any Securityholder: (i) to comply with
Sections 5.01
and
10.12
of the
Indenture; (ii) to make any changes or modifications to the Indenture necessary
in connection with the registration of the Securities under the Securities
Act
pursuant to the Registration Rights Agreement or the qualification of the
Indenture under the TIA; (iii) to secure the obligations of the Company
in
respect of the Securities; (iv) to add to the covenants of the Company
described
in the Indenture for the benefit of Securityholders or to surrender any
right or
power conferred upon the Company; (v) to make provisions with respect to
adjustments to the Conversion Rate as required by the Indenture or to increase
the Conversion Rate in accordance with the Indenture; and (vi) to add Subsidiary
Guarantees with respect to the Securities, or remove Subsidiary Guarantees
as
provided in the Indenture. In addition, the Company and the Trustee may
enter
into a supplemental indenture without the consent of Holders of the Securities
to cure any ambiguity, defect, omission or inconsistency in the Indenture
in a
manner that does not, individually or in the aggregate with all other
modifications made or to be made to the Indenture, adversely affect the
rights
of any Holder.
15. Defaults
and Remedies.
If
an
Event of Default (excluding an Event of Default specified in Section 6.01(viii)
or
(ix)
of the
Indenture with respect to the Company (but including an Event of Default
specified in Section
6.01(viii) or
(ix)
of the
Indenture solely with respect to a Significant Subsidiary of the Company
or any
group of Subsidiaries that in the aggregate would constitute a Significant
Subsidiary of the Company)) occurs and is continuing, the Trustee by written
notice to the Company or the Holders of at least twenty five percent (25%)
in
principal amount of the Securities then outstanding by written notice to
the
Company and the Trustee may declare the Securities to be due and payable.
Upon
such declaration, the principal of, and any premium and accrued and unpaid
interest (including any additional interest) on, all Securities shall be
due and
payable immediately. If an Event of Default specified in Section 6.01(viii)
or
(ix)
of the
Indenture with respect to the Company (excluding, for purposes of this
sentence,
an Event of Default specified in Section 6.01(viii)
or
(ix)
of the
Indenture solely with respect to a Significant Subsidiary of the Company
or any
group of Subsidiaries that in the aggregate would constitute a Significant
Subsidiary of the Company) occurs, the principal of, and premium and accrued
and
unpaid interest (including any additional interest) on, all the Securities
shall
ipso
facto become
and be immediately due and payable without any declaration or other act
on the
part of the Trustee or any Holder. The Holders of a majority in aggregate
principal amount of the Securities then outstanding by written notice to
the
Trustee may rescind or annul an acceleration and its
A-7
consequences
if (A) the rescission would not conflict with any order or decree, (B)
all
existing Events of Default, except the nonpayment of principal, premium
or
interest (including additional interest) that has become due solely because
of
the acceleration, have been cured or waived and (C) all amounts due to
the
Trustee under Section
7.07
of the
Indenture have been paid.
Holders
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require indemnity reasonably satisfactory to
it
before it enforces the Indenture or the Securities. The Holders of a majority
in
aggregate principal amount of the Securities then outstanding may direct
the
time, method and place of conducting any proceeding for any remedy available
to
the Trustee or exercising any trust or power conferred on it. However,
the
Trustee may refuse to follow any direction that conflicts with law or the
Indenture, is unduly prejudicial to the rights of other Holders or would
involve
the Trustee in personal liability unless the Trustee is offered indemnity
reasonably satisfactory to it; provided,
that
the Trustee may take any other action deemed proper by the Trustee which
is not
inconsistent with such direction.
If
a
Default or Event of Default occurs and is continuing as to which the Trustee
has
received written notice pursuant to the provisions of the Indenture, or
as to
which a Responsible Officer of the Trustee shall have actual knowledge,
the
Trustee shall mail to each Holder a notice of the Default or Event of Default
within thirty (30) days after it occurs unless such Default or Event of
Default
has been cured or waived. Except in the case of a Default or Event of Default
in
payment of any amounts due with respect to any Security, the Trustee may
withhold the notice if, and so long as it in good faith determines that,
withholding the notice is in the best interests of Holders. The Company
must
deliver to the Trustee an annual compliance certificate.
16. Registration
Rights.
The
Holders are entitled to registration rights as set forth in the Registration
Rights Agreement. The Holders shall be entitled to receive additional interest
in certain circumstances, all as set forth in the Registration Rights
Agreement.
17. Trustee
Dealings with the Company.
The
Trustee under the Indenture, or any banking institution serving as successor
Trustee thereunder, in its individual or any other capacity, may make loans
to,
accept deposits from, and perform services for, the Company or its Affiliates,
and may otherwise deal with the Company or its Affiliates, as if it were
not
Trustee.
18. Authentication.
This
Security shall not be valid until authenticated by the manual signature
of the
Trustee or an authenticating agent in accordance with the
Indenture.
19. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee,
such
as: TEN COM (= tenants in common), TEN ENT (= tenants by the entirety),
JT TEN
(= joint tenants with right of survivorship and not as tenants in common),
CUST
(= Custodian), and U/G/M/A (Uniform Gifts to Minors Act).
THE
COMPANY WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT CHARGE
A
COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
A-8
Five
Star
Quality Care, Inc.
000
Xxxxxx Xxxxxx,
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
Chief Financial Officer
A-9
[FORM
OF
ASSIGNMENT]
|
I
or we assign to
|
|
|
PLEASE
INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
__________________________________________
____________________________________________________________
|
|
|
(please
print or type name and address)
|
|
|
____________________________________________________________
____________________________________________________________
|
|
|
the
within Security and all rights thereunder, and hereby irrevocably
constitute and appoint
|
|
|
______________________________________________________________________
Attorney
to transfer the Security on the books of the Company with full
power of
substitution in the premises.
|
|
|
Dated:_______________________________
|
_______________________________________________
NOTICE:
The signature on this assignment must correspond
with
the name as it appears upon the face of the within Security
in
every particular without alteration or enlargement or any
change
whatsoever and be guaranteed by a guarantor institution
participating
in the Securities Transfer Agents Medallion Program
or
in such other guarantee program acceptable to the
Trustee.
|
|
Signature
Guarantee:
__________________________________________________________
|
|
A-10
In
connection with any transfer of this Security occurring prior to the Resale
Restriction Termination Date, the undersigned confirms that it is making,
and it
has not utilized any general solicitation or general advertising in connection
with, the transfer:
[Check
One]
|
(1)
|
____
|
to
the Company or any Subsidiary thereof, or
|
|
(2)
|
____
|
to
a qualified institutional buyer in compliance with the exemption
from
registration provided by Rule 144A under the Securities Act of
1933, as
amended, or
|
|
(3)
|
____
|
pursuant
to, and in compliance with, the exemption from registration provided
by
Rule 144 under the Securities Act of 1933, as amended, or
|
|
(4)
|
____
|
pursuant
to, and in compliance with, an exemption from registration under
the
Securities Act of 1933, as amended, other than Rule 144A or Rule
144,
or
|
|
(5)
|
____
|
pursuant
to an effective registration statement under the Securities Act
of 1933,
as amended,
|
and,
unless the box below is checked, the undersigned confirms that this Security
is
not being transferred to an “affiliate” of the Company (an “Affiliate”)
as
defined in Rule 144 under the Securities Act of 1933, as amended:
o The
transferee is an Affiliate of the Company. (If the Security is transferred
to an
Affiliate, the restrictive legend must remain on the Security for at least
two
(2) years following the date of the transfer.)
Unless
one of the items (1) through (5) is checked, the Registrar will refuse
to
register any of the Securities evidenced by this certificate in the name
of any
person other than the registered Holder thereof; provided,
however,
that if
item (3) or (4) is checked, the Company or the Registrar may require, prior
to
registering any such transfer of the Securities, in their sole discretion,
such
written legal opinions, certifications and other information as the Registrar or
the Company have reasonably requested 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 of 1933, as amended. If
item (2)
is checked, the purchaser must complete the certification below.
If
none
of the foregoing items are checked, the Trustee or Registrar shall not
be
obligated to register this Security in the name of any person other than
the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in the Indenture shall have been
satisfied.
|
Dated:
__________________________
|
Signed:
___________________________________
|
|
(Sign
exactly as name
appears on the other
side
of this
Security)
|
Signature
Guarantee:
A-11
TO
BE
COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The
undersigned represents and warrants that it is purchasing this Security
for its
own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified institutional buyer”
within the meaning of Rule 144A under the Securities Act of 1933, as amended,
and is aware that the sale to it is being made in reliance on Rule 144A
and
acknowledges that it has received such information regarding the Company
as the
undersigned has requested pursuant to Rule 144A and acknowledges that the
transferor is relying upon the undersigned’s foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
|
Dated:
__________
|
_________________________________________
|
|
NOTICE:
To be executed by an executive
officer
|
A-12
CONVERSION
NOTICE
|
To
convert this Security in accordance with the Indenture, check
the box:
o
|
|
To
convert only part of this Security, state the principal amount
to be
converted (must be in multiples of $1,000):
$__________________
If
you want the stock certificate made out in another person’s name, fill in
the form below:
__________________________________________________________________________
(Insert
other person’s soc. sec. or tax I.D. no.)
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
(Print
or type other person’s name, address and zip
code)
|
_____________________________________________________________________________
|
Date:______________
|
Signature(s):
_____________________________________
|
|
________________________________________________
(Sign
exactly as your name(s) appear(s) on
the
other side of this Security)
|
|
|
Signature(s)
guaranteed by:
|
_________________________________________________
|
|
(All
signatures must be guaranteed by a guarantor institution
participating
in the Securities Transfer Agents Medallion Program
or
in such other guarantee program acceptable to the Trustee.)
|
A-13
PURCHASE
NOTICE
Certificate
No. of Security: ___________
If
you
want to elect to have this Security purchased by the Company pursuant to
Section 3.08
of
the
Indenture, check the box: o
If
you
want to elect to have this Security purchased by the Company pursuant to
Section 3.09
of
the
Indenture, check the box: o
If
you
want to elect to have only part of this Security purchased by the Company
pursuant to Sections
3.08 or 3.09
of
the
Indenture, as applicable, state the principal amount to be so purchased
by the
Company:
$
__________________________________
(in
an
integral multiple of $1,000)
|
Date:______________
|
Signature(s):
_____________________________________
|
|
________________________________________________
(Sign
exactly as your name(s) appear(s) on
the
other side of this Security)
|
|
|
Signature(s)
guaranteed by:
|
_________________________________________________
|
|
(All
signatures must be guaranteed by a guarantor institution
participating
in the Securities Transfer Agents Medallion Program
or
in such other guarantee program acceptable to the
Trustee.)
|
A-14
SCHEDULE
A
SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITYa
The
following exchanges of a part of this Global Security for an interest in
another
Global Security or for Securities in certificated form, have been
made:
|
Date
of Exchange
|
Amount
of decrease in Principal amount of this Global Security
|
Amount
of Increase in Principal amount of this Global Security
|
Principal
amount of this Global
Security
following
such
decrease
or
increase
|
Signature
or authorized signatory of Trustee or Note
Custodian
|
a This
is included in Global Securities only.
X-00
XXXXXXX
X-0
FORM
OF
PRIVATE PLACEMENT LEGEND
THIS
SECURITY, THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS SECURITY AND
THE
RELATED SUBSIDIARY GUARANTEES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED (THE ‘‘SECURITIES ACT’’), AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN,
THE
ACQUIRER:
(1)
REPRESENTS
THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A ‘‘QUALIFIED INSTITUTIONAL
BUYER’’ (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT,
AND
(2)
AGREES
FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE
TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE
THAT
IS THE LATER OF (X) TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF
AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT OR
ANY
SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY
BE
REQUIRED BY APPLICABLE LAW, EXCEPT ONLY:
(A)
TO
THE
COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B)
PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES
ACT,
OR
(C)
TO
A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, OR
(D)
PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT
OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE
SECURITIES ACT.
PRIOR
TO
THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C) ABOVE, A DULY
COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH MAY BE OBTAINED FROM
THE
TRUSTEE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE REGISTRATION OF
ANY
TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE
THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS
OR
OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT
THE
PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE
AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
X-0-0
XXXXXXX
X-0
FORM
OF
LEGEND FOR GLOBAL SECURITY
Any
Global Security authenticated and delivered hereunder shall bear a legend
(which
would be in addition to any other legends required in the case of a Restricted
Security) in substantially the following form:
THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
OF A
DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE
FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY
OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE,
AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A
WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED
EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
&
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT
IN PART,
TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED
TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION
2.16 OF
THE INDENTURE.
X-0-0
XXXXXXX
X-0
FORM
OF
LEGEND REGARDING REGISTRATION RIGHTS AGREEMENT AND SUBSIDIARY
GUARANTEES
THIS
SECURITY SHALL BE ENTITLED TO THE BENEFITS OF THAT CERTAIN REGISTRATION
RIGHTS
AGREEMENT, DATED OCTOBER 18, 2006, AMONG FIVE STAR QUALITY CARE, INC.,
THE
GUARANTORS NAMED THEREIN, UBS
SECURITIES LLC AND THE OTHER PARTIES NAMED THEREIN.
THIS
SECURITY SHALL BE ENTITLED TO THE BENEFITS OF THE SUBSIDIARY GUARANTEES
REFERRED
TO IN THAT CERTAIN INDENTURE, DATED OCTOBER 18, 2006, AMONG FIVE STAR QUALITY
CARE, INC., THE GUARANTORS NAMED THEREIN AND U.S. BANK NATIONAL ASSOCIATION,
AS
TRUSTEE UNDER THE INDENTURE.
B-3-1
EXHIBIT
C
Form
of Notice of Transfer Pursuant to Registration Statement
Five
Star
Quality Care, Inc.
000
Xxxxxx Xxxxxx,
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
Chief Financial Officer
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx,
XX 00000
Attention:
Corporate Trust Services/Xxxxx X. Xxxxxxx
Re: Five
Star
Quality Care, Inc. (the “Company”)
3.75%
Convertible Senior Notes due 2026 (the “Securities”)
Ladies
and Gentlemen:
Please
be
advised that _____________ has transferred $___________ aggregate principal
amount of the Securities and ________ shares of the Common Stock, $0.01
par
value per share, of the Company issued on conversion of the Securities
(“Stock”)
pursuant to an effective Shelf Registration Statement on Form S-3 (File
No.
333-________).
We
hereby
certify that the prospectus delivery requirements, if any, of the Securities
Act
of 1933 as amended, have been satisfied with respect to the transfer described
above and that the above-named beneficial owner of the Securities or Stock
is
named as a “Selling Security Holder” in the Prospectus dated _________, or in
amendments or supplements thereto, and that the aggregate principal amount
of
the Securities and the number of shares of Stock transferred are [a portion
of]
the Securities and Stock listed in such Prospectus, as amended or supplemented,
opposite such owner’s name.
Very
truly
yours,
_________________________
(Name)
C-1
EXHIBIT
D
Form
of Opinion of Counsel in Connection with Registration of
Securities
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx,
XX 00000
Attention:
Corporate Trust Services/Xxxxx X. Xxxxxxx
Re: Five
Star
Quality Care, Inc. (the “Company”)
3.75%
Convertible Senior Notes due 2026 (the “Securities”)
Ladies
and Gentlemen:
Reference
is made to the Securities issued pursuant to a certain Indenture dated
as of
October 18, 2006 by and between the Company and U.S. Bank National Association,
as trustee (the “Trustee”).
The
Company issued $126,500,000 principal amount of Securities on of October
18,
2006 in transactions exempt from registration under the Securities Act
of 1933,
as amended (the “Securities
Act”).
The
Company has filed with the Securities and Exchange Commission (the “SEC”)
[a]
[Amendment No. [_] to the] Registration Statement on Form S-3 (File No.
333-______) (the “Registration
Statement”)
relating to the registration under the Securities Act of $______________
principal amount of the Securities and the shares of Common Stock of
the Company
(the “Shares”)
issuable upon conversion of the Securities being registered. The Registration
Statement was declared effective by order of the SEC dated
_____________.
We
have
acted as counsel for the Company in connection with the issuance of the
Securities and the preparation and filing of the Registration Statement
and are
familiar with the Securities, the Indenture, the Registration Statement,
the
above-mentioned SEC order and such other documents as are necessary to
render
this opinion.
Based
on
the foregoing, it is our opinion that (1) the Registration Statement
has become
effective under the Securities Act and, to our knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued,
(2)
assuming that the Securities covered by the Registration Statement and
the
Shares issuable upon conversion of such Securities are sold by a relevant
Holder
specified in the Registration Statement in a manner specified in the
Registration Statement, such sale of the Securities and Shares issuable
upon
conversion of the Securities will have been duly registered under the
Securities
Act and (3) the Indenture has been duly qualified under the Trust Indenture
Act
of 1939, as amended.
Yours
truly,
D-1
EXHIBIT
E
Form
of Notation of Guarantee
For
value
received, each Guarantor (which term includes any successor Person under
the
Indenture) has, jointly and severally, fully and unconditionally guaranteed,
to
the extent set forth, and subject to the provisions provided, in the
Indenture
(the “Indenture”),
dated
October 18, 2006, among Five Star Quality Care, Inc., the Guarantors
named
therein and U.S. Bank National Association, as trustee (the “Trustee”),
(a)
the due and punctual payment of the principal of, premium, if any, and
interest
or additional in interest, if any, on the Securities, whether at maturity,
by
acceleration, redemption or otherwise, the due and punctual payment of
interest
on overdue principal and premium, if any, and, to the extent permitted
by law,
interest or additional interest, if any, on the Securities, and the due
and
punctual performance of all other obligations of the Company to the Holders
or
the Trustee under the Indenture or the Securities or the Registration
Rights
Agreement, all in accordance with the terms of the Indenture, the Securities
and
the Registration Rights Agreement; and (b) in case of any extension of
time of
payment or renewal of any Securities, any such shares or any of such
other
obligations, that the same will be promptly paid in full when due or
performed
in accordance with the terms of the extension or renewal, whether at
stated
maturity, by acceleration or otherwise. The obligations of the Guarantors
to the
Holders of Securities and to the Trustee pursuant to the Subsidiary Guarantees
and the Indenture are expressly set forth in Article
XI
of the
Indenture, and reference is hereby made to the Indenture for the precise
terms
of the Subsidiary Guarantees. Each Holder of a Security, by accepting
the same,
agrees to, and shall be bound by, such provisions.
Each
Guarantor, and, by its acceptance of Securities, each Holder, hereby
confirms
that it is the intention of all such parties that the Subsidiary Guarantee
of
each Guarantor not constitute a fraudulent transfer or conveyance for
purposes
of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent
Transfer Act or any similar federal or state law to the extent applicable
to any
Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee,
the
Holders and the Guarantors hereby irrevocably agree that the obligations
of each
Guarantor shall be limited to the maximum amount as will, after giving
effect to
all other contingent and fixed liabilities of such Guarantor that are
relevant
under such laws, and after giving effect to any collections from, rights
to
receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under
Article
XI of
the
Indenture, result in the obligations of such Guarantor under its Subsidiary
Guarantee not constituting a fraudulent transfer or conveyance.
Capitalized
terms used herein without definition shall have the respective meanings
ascribed
to them in the Indenture.
[The
Remainder of This Page Intentionally Left Blank; Signature Page
Follows]
E-1
IN
WITNESS WHEREOF,
the
[Guarantor] has caused this Subsidiary Guarantee to be duly executed
as of this
__________________________.
|
[Guarantor]
|
|||
|
By:
__________________________
|
|||
|
Name:
|
|||
|
Title:
|
E-2
EXHIBIT
F
Form
of Supplemental Indenture to be Delivered by Subsequent
Guarantors
SUPPLEMENTAL
INDENTURE
(this
“Supplemental
Indenture”),
dated
as of ________________, among __________________ (the “Guaranteeing
Subsidiary”),
a
subsidiary of Five Star Quality Care, Inc. (or its permitted successor),
a
Maryland corporation (the “Company”),
the
Company, the other Guarantors (as defined in the Indenture referred to
herein)
and U.S. Bank National Association, as trustee under the Indenture referred
to
herein (the “Trustee”).
W
I T N E S S E T H
WHEREAS,
the
Company has heretofore executed and delivered to the Trustee an indenture
(the
“Indenture”),
dated
as of October 18, 2006, providing for the issuance of the Company’s 3.75%
Convertible Senior Notes due 2026 (the “Securities”);
WHEREAS,
the
Indenture provides that under certain circumstances the Guaranteeing
Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant
to
which the Guaranteeing Subsidiary shall guarantee all of the Company’s
Obligations under the Securities, the Indenture and the “Registration Rights
Agreement” (as defined in the Indenture) on the terms and conditions set forth
herein (the “Subsidiary
Guarantee”);
and
WHEREAS,
pursuant to Section
11.04 of
the
Indenture, the Trustee is authorized to execute and deliver this Supplemental
Indenture.
NOW,
THEREFORE,
in
consideration of the foregoing and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary
and the
Trustee mutually covenant and agree for the equal and ratable benefit
of the
Holders of the Securities as follows:
1. Definitions
and Construction.
Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture. The terms “herein,” “hereof,” “hereto,”
“hereinafter” and similar terms, as used in this Supplemental Indenture, shall
in each case refer to this Supplemental Indenture as a whole and not
to any
particular section, paragraph, sentence or other subdivision of this
Supplemental Indenture.
2. Agreement
to Guarantee.
The
Guaranteeing Subsidiary hereby agrees that Article
XI
of the
Indenture shall apply to the Guaranteeing Subsidiary to the same effect
as if
the Guaranteeing Subsidiary had been named as a “Guarantor” in the
Indenture.
3. New
York Law to Govern.
The
laws of the State of New York, without regard to principles of conflicts
of law,
shall govern this Supplemental Indenture, the Securities and the Subsidiary
Guarantees.
F-1
4. Counterparts.
The
parties may sign any number of copies of this Supplemental Indenture.
Each
signed copy shall be an original, but all of them together represent
the same
Supplemental Indenture.
5. Effect
of Headings.
The
Section headings herein are for convenience only and shall not affect
the
construction hereof.
6. The
Trustee.
The
Trustee shall not be responsible in any manner whatsoever for or in respect
of
the validity or sufficiency of this Supplemental Indenture or for or
in respect
of the recitals contained herein, all of which recitals are made solely
by the
Guaranteeing Subsidiary and the Company.
[The
Remainder of This Page Intentionally Left Blank; Signature Page
Follows]
F-2
IN
WITNESS WHEREOF,
the
parties hereto have caused this Supplemental Indenture to be duly executed
as of
the date first above written.
|
[Guaranteeing
subsidiary]
|
|||
|
By:
__________________________
|
|||
|
Name:
|
|||
|
Title:
|
|
FIVE
STAR QUALITY CARE, INC.
|
|||
|
By:
__________________________
|
|||
|
Name:
|
|||
|
Title:
|
|
[Existing
Guarantors]
|
|||
|
By:
__________________________
|
|||
|
Name:
|
|||
|
Title:
|
|
U.S.
Bank national association
|
|||
|
By:
__________________________
|
|||
|
Name:
|
|||
|
Title:
|
F-3
SCHEDULE
1
Schedule
of Guarantors
FS
Lafayette Tenant Trust
FS
Leisure Park Tenant Trust
FS
Lexington Tenant Trust
FS
Tenant
Pool I Trust
FS
Tenant
Pool II Trust
FS
Tenant
Pool III Trust
FS
Tenant
Pool IV Trust
S-1
