FINANCIAL FEDERAL CORPORATION
2% Convertible Senior Debentures Due 2034
_______________________________________________________
___
INDENTURE
Dated as of April 12, 2004
_______________________________________________________
___
DEUTSCHE BANK TRUST COMPANY AMERICAS
TRUSTEE
_______________________________________________________
___
Reconciliation and tie between
Trust Indenture Act of 1939 and Indenture
Trust Indenture Act Indenture
Section Section
310(a)(1) Section 7.10
310(a)(2) Section 7.10
310(b) Section 7.08
311(a) Section 7.11
311(b) Section 7.11
312(a) Section 2.05
312(b) Section 12.03
312(c) Section 12.03
313(a) Section 7.06
313(b) Section 7.06
313(d) Section 7.06
314(a) Section 4.02
314(c) Section 12.04
314(e) Section 12.05
315(a) Section 7.01
315(b) Section 6.01
315(c) Section 7.01
315(e) Section 6.11
316(a) Section 6.04,
Section 6.05
316(b) Section 6.07
316(c) Section 1.04
317(a) Section 6.08
317(b) Section 7.01
TABLE OF CONTENTS
Page
ARTICLE 1
Definitions and Incorporation By Reference
Section 1.01. Definitions. 1
Section 1.02. Incorporation By Reference Of Trust
Indenture Act 9
Section 1.03. Rules Of Construction 10
Section 1.04. Acts of Holders. 10
ARTICLE 2
The Securities
Section 2.01. Form And Dating 12
Section 2.02. Execution And Authentication 13
Section 2.03. Registrar, Paying Agent, Conversion
Agent 13
Section 2.04. Paying Agent To Hold Money And
Securities In Trust 14
Section 2.05. Securityholder Lists 14
Section 2.06. Transfer And Exchange 14
Section 2.07. Replacement Securities 16
Section 2.08. Outstanding Securities;
Determinations Of Holders' Action 17
Section 2.09. Temporary Securities 18
Section 2.10. Cancellation 18
Section 2.11. Persons Deemed Owners 18
Section 2.12. Global Securities. 19
Section 2.13. CUSIP Numbers 24
Section 2.14. Contingent Debt Tax Treatment. 24
Section 2.15. Calculation Of Tax Original Issue
Discount 24
ARTICLE 3
Redemption And Repurchases
Section 3.01. Company's Right To Redeem; Notices
To Trustee 25
Section 3.02. Selection Of Securities To Be
Redeemed 25
Section 3.03. Notice Of Redemption 26
Section 3.04. Effect Of Notice Of Redemption 27
Section 3.05. Deposit Of Redemption Price 27
Section 3.06. Securities Redeemed In Part 27
Section 3.07. Repurchase Of Securities By The
Company At Option Of The Holder 27
Section 3.08. Repurchase Of Securities At Option
Of The Holder Upon a Designated Event. 29
Section 3.09. Effect Of Repurchase Notice Or
Designated Event Repurchase Notice. 32
Section 3.10. Deposit Of Repurchase Price Or
Designated Event Repurchase Price 34
Section 3.11. Securities Purchased In Part 34
Section 3.12. Covenant To Comply With Securities
Laws Upon Purchase Of Securities 34
Section 3.13. Repayment To The Company 34
ARTICLE 4
Covenants
Section 4.01. Payment of Securities 35
Section 4.02. SEC And Other Reports 35
Section 4.03. Compliance Certificate 35
Section 4.04. Further Instruments And Acts 35
Section 4.05. Maintenance Of Office Or Agency 36
Section 4.06. Delivery Of Certain Information 36
Section 4.07. Liquidated Damages Notice 36
ARTICLE 5
Successor Person
Section 5.01. When Company May Merge Or Transfer
Assets 37
ARTICLE 6
Defaults And Remedies
Section 6.01. Events Of Default 38
Section 6.02. Acceleration 40
Section 6.03. Other Remedies 41
Section 6.04. Waiver Of Past Defaults 41
Section 6.05. Control By Majority 41
Section 6.06. Limitation On Suits 42
Section 6.07. Rights Of Holders To Receive Payment 42
Section 6.08. Collection Suit By Trustee 42
Section 6.09. Trustee May File Proofs Of Claim 42
Section 6.10. Priorities 43
Section 6.11. Undertaking For Costs 44
Section 6.12. Waiver Of Stay, Extension Or Usury
Laws 44
ARTICLE 7
Trustee
Section 7.01. Duties Of Trustee 44
Section 7.02. Rights Of Trustee 46
Section 7.03. Individual Rights Of Trustee 47
Section 7.04. Trustee's Disclaimer 47
Section 7.05. Notice Of Defaults 48
Section 7.06. Reports By Trustee To Holders 48
Section 7.07. Compensation And Indemnity 48
Section 7.08. Replacement Of Trustee 49
Section 7.09. Successor Trustee By Merger 50
Section 7.10. Eligibility; Disqualification 50
Section 7.11. Preferential Collection Of Claims
Against Company 50
ARTICLE 8
Discharge Of Indenture
Section 8.01. Discharge Of Liability On Securities 51
Section 8.02. Repayment To The Company 51
ARTICLE 9
Amendments
Section 9.01. Without Consent Of Holders 51
Section 9.02. With Consent Of Holders 52
Section 9.03. Compliance With Trust Indenture Act 54
Section 9.04. Revocation And Effect Of Consents,
Waivers And Actions 54
Section 9.05. Notation On Or Exchange Of
Securities 54
Section 9.06. Trustee To Sign Supplemental
Indentures 54
Section 9.07. Effect Of Supplemental Indentures 54
ARTICLE 10
Conversions
Section 10.01. Conversion Privilege 55
Section 10.02. Conversion Procedure; Conversion
Rate; Fractional Shares. 56
Section 10.03. Payment Of Cash In Lieu Of Common
Stock. 59
Section 10.04. Adjustment of Conversion Rate 60
Section 10.05. Effect of Reclassification,
Consolidation, Merger or Sale 69
Section 10.06. Taxes on Shares Issued 71
Section 10.07. Reservation of Shares, Shares to Be
Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock. 71
Section 10.08. Responsibility of Trustee 72
Section 10.09. Notice To Holders Prior To Certain
Actions 72
Section 10.10. Rights Issued in Respect of Common
Stock Issued upon Conversion 73
Section 10.11. Unconditional Right Of Holders To
Convert. 74
ARTICLE 11
Contingent Interest
Section 11.01. Contingent Interest. 74
Section 11.02. Payment Of Contingent Interest. 74
Section 11.03. Contingent Interest Notification. 74
ARTICLE 12
Miscellaneous
Section 12.01. Trust Indenture Act Controls 75
Section 12.02. Notices 75
Section 12.03. Communication By Holders With Other
Holders 76
Section 12.04. Certificate And Opinion As To
Conditions Precedent 76
Section 12.05. Statements Required In Certificate
Or Opinion 76
Section 12.06. Separability Clause 76
Section 12.07. Rules By Trustee, Paying Agent,
Conversion Agent and Registrar 76
Section 12.08. Legal Holidays 77
Section 12.09. GOVERNING LAW 77
Section 12.10. No Recourse Against Others 77
Section 12.11. Successors 77
Section 12.12. Multiple Originals 77
EXHIBIT A Form of Global Security
EXHIBIT B Form of Certificated Security
EXHIBIT C Transfer Certificate
INDENTURE dated as of April 12, 2004 between
FINANCIAL FEDERAL CORPORATION, a Nevada corporation
("Company"), and DEUTSCHE BANK TRUST COMPANY AMERICAS,
a New York banking corporation ("Trustee").
Each party agrees as follows for the benefit of
the other party and for the equal and ratable benefit
of the Holders of the Company's 2% Convertible Senior
Debentures Due 2034:
ARTICLE 1
Definitions and Incorporation By Reference
Section 1.01 . Definitions.
"144A Global Security" means a permanent Global
Security in the form of the Security attached hereto as
Exhibit A, and that is deposited with and registered in
the name of the Depositary, representing Securities
sold in reliance on Rule 144A under the Securities Act.
"Affiliate" of any specified person means any
other person directly or indirectly controlling or
controlled by or under direct or indirect common
control with such specified person. For the purposes of
this definition, "control" when used with respect to
any specified person means the power to direct or cause
the direction of the management and policies of such
person, directly or indirectly, whether through the
ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any
transfer or transaction involving a Global Security or
beneficial interest therein, the rules and procedures
of the Depositary for such Security, in each case to
the extent applicable to such transaction and as in
effect from time to time.
"Board of Directors" means either the board of
directors of the Company or any duly authorized
committee of such board.
"Board Resolution" means a resolution of the Board
of Directors.
"Business Day" means, with respect to any
Security, a day, other than a Saturday or Sunday, that
in the City of New York, is not a day on which banking
institutions are authorized by law or regulation to
close.
"Capital Stock" for any corporation means any and
all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or
interests in (however designated) stock issued by that
corporation.
"Cash Settlement Averaging Period" shall have the
meaning set forth in Section 10.03(a).
"Certificated Securities" means Securities that
are in the form of the Securities attached hereto as
Exhibit B.
"Change of Control" means:
(i) as indicated by the filing of a Schedule TO under
the Exchange Act or any other schedule, form or report
under the Exchange Act disclosing the acquisition by
any Person, including any syndicate or group deemed to
be a "person" under Section 13(d)(3) of the Exchange
Act, of beneficial ownership, directly or indirectly,
through a purchase, merger or other acquisition
transaction or series of purchase, merger or other
acquisition transactions, of shares of the Capital
Stock of the Company entitling that Person to exercise
50% or more of the total voting power of all shares of
the Capital Stock of the Company entitled to vote
generally in elections of directors, other than any
acquisition by the Company, any of its Subsidiaries, or
any of the employee benefit plans of the Company
(except that any of those Persons shall be deemed to
have beneficial ownership of all securities it has the
right to acquire, whether the right is currently
exercisable or is exercisable only upon the occurrence
of a subsequent condition); or
(ii) the Company consolidates or merges with or into
any other Person, or any merger of another Person into
the Company, or any conveyance, sale, transfer or lease
of all or substantially all of the assets of the
Company to another Person, other than: (A) any
transaction: (1) that does not result in any
reclassification, conversion, exchange or cancellation
of outstanding shares of the Company's Capital Stock,
and (2) pursuant to which holders of the Company's
Capital Stock immediately prior to the transaction have
the entitlement to exercise, directly or indirectly,
50% or more of the total voting power of all shares of
Capital Stock entitled to vote generally in elections
of directors of the continuing or surviving Person
immediately after giving effect to such issuance; (B)
any merger, share exchange, transfer of assets or other
similar transaction which is effected solely for the
purpose of changing the Company's jurisdiction of
incorporation and resulting in a reclassification,
conversion or exchange of outstanding shares of Common
Stock, if at all, solely into shares of common stock,
ordinary shares or American Depositary Shares of the
surviving Person or any direct or indirect parent of
such Person; or (C) any consolidation with or merger
into any of the Company's Subsidiaries, so long as such
merger or consolidation is not part of a plan or a
series of transactions designed to, or having the
effect of, merging or consolidating with any other
Person.
For the purposes of this definition, (x) whether a
person is a "beneficial owner" shall be determined in
accordance with Rule 13d-3 under the Exchange Act and
(y) the term "person" includes any syndicate or group
that would be deemed to be a "person" under Section
13(d)(3) of the Exchange Act.
"close of business" means 5 p.m. (New York City
time).
"Closing Sale Price" means, with respect to any
security on any day, the closing sale per share on such
day (or if no closing sale price is reported, the
average of the reported closing bid and ask prices or,
if more than one in either case, the average of the
average closing bid and the average closing ask prices)
as reported in composite transactions for the principal
United States securities exchange on which such
security is traded, or if such security is not listed
on a United States securities exchange, as reported by
the National Association of Securities Dealers
Automated Quotation System, or if not so reported, the
average of the closing bid and ask prices of such
security on the over-the-counter market on the day in
question as reported by the National Quotation Bureau
Incorporated, or, in the absence of such a quotation, a
price determined by the Company on a basis it considers
to be appropriate.
"Common Stock" means the common stock, $.50 par
value per share, of the Company existing on the date of
this Indenture or any other shares of Capital Stock of
the Company into which such Common Stock shall be
reclassified or changed, including, subject to Section
10.05 below, in the event of a merger, consolidation or
other similar transaction involving the Company that is
otherwise permitted hereunder in which the Company is
not the surviving Person, the common stock of such
surviving corporation.
"Company" means the party named as the "Company"
in the first Section of this Indenture until a
successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall
mean such successor. The foregoing sentence shall
likewise apply to any subsequent such successor or
successors.
"Company Notice" means a notice to Holders
delivered pursuant to Section 3.07 or Section 3.08.
"Company Request" or "Company Order" means a
written request or order signed in the name of the
Company by any two Officers.
"Contingent Interest" means such interest payable
as described in Article 11.
"Conversion Date" shall have the meaning set forth
in Section 10.02(c).
"Conversion Settlement Date" means (i) the
Conversion Date or (ii) if the Company elects to pay
cash in lieu of Common Stock pursuant to Section 10.03,
the Business Day immediately following the final day of
the Cash Settlement Averaging Period.
"Conversion Price" as of any date means $1,000
divided by the Conversion Rate as of such date;
provided that following any distribution of Distributed
Assets as set forth in Section 10.04(d) or an
Extraordinary Cash Dividend as set forth in Section
10.04(e), in each case where an adjustment to the
Conversion Rate was not made pursuant to the provisos
set forth therein, the Conversion Price shall be
adjusted following such distribution by subtracting
from the Conversion Price then in effect (x) in the
case of a distribution of Distributed Assets, the Fair
Market Value of the portion of Distributed Assets so
distributed applicable to one share of Common Stock or
(y) in the case of an Extraordinary Dividend, the cash
so distributed applicable to one share of Common Stock;
provided further that if such subtraction produces a
number less than $1.00, the Conversion Price shall be
$1.00.
"Conversion Rate" has the meaning set forth in
Section 10.02(a) hereof.
"Corporate Trust Office" means the principal
office of the Trustee at which at any time its
corporate trust business shall be administered, which
office at the date hereof is located at 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, Attention: Trust and
Securities Services, or such other address as the
Trustee may designate from time to time by notice to
the Holders and the Company, or the principal corporate
trust office of any successor Trustee (or such other
address as a successor Trustee may designate from time
to time by notice to the Holders and the Company).
"Current Market Price" on any date of
determination shall mean the average of the daily
Closing Sale Prices per share of Common Stock for the
ten consecutive Trading Days ending not later than the
earlier of such date of determination and the day
before the Ex-Dividend Date with respect to the
issuance, distribution, subdivision or combination
requiring such computation immediately prior to the
date in question. In the event that an issuance,
distribution, subdivision, combination or tender or
exchange offer to which Section 10.04 applies occurs
during the period applicable for calculating the
Current Market Price pursuant to the definition in the
preceding paragraph, the Current Market Price shall be
calculated for such period in a manner determined by
the Board of Directors to reflect the impact of such
issuance, distribution, subdivision, combination or
tender or exchange offer on the Closing Sale Price of
the Common Stock during such period.
"Depositary" shall have the meaning set forth in
Section 2.01(a).
"Designated Event" means the occurrence of either
a Change of Control or a Termination of Trading.
"Designated Event Repurchase Date" shall have the
meaning set forth in Section 3.08(a).
"Designated Event Repurchase Price" shall have the
meaning set forth in Section 3.08(a).
"Designated Subsidiary" shall mean any existing or
future, direct or indirect, Subsidiary of the Company
whose assets constitute 25% or more of the total assets
of the Company on a consolidated basis.
"Distributed Assets" shall have the meaning set
forth in Section 10.04(d).
"Ex-Dividend Date" means (1) when used with
respect to any issuance or distribution, the first date
on which the Common Stock trades, 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, and (2) when
used with respect to any subdivision or combination of
shares of Common Stock, the first date on which the
Common Stock trades, regular way, on such exchange or
in such market after the time at which such subdivision
or combination becomes effective.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended.
"Extraordinary Dividend" shall have the meaning
set forth in Section 10.04(e).
"Fair Market Value", or "fair market value" shall
mean the amount which a willing buyer would pay a
willing seller in an arm's-length transaction.
"Global Securities" means Securities that are in
the form of the Securities attached hereto as Exhibit
A, and that are registered in the register of
Securities in the name of a Depositary or a nominee
thereof, and to the extent that such Securities are
required to bear the Legend required by Section
2.06(e), such Securities will be in the form of a 144A
Global Security.
"Holder" or "Securityholder" means a person in
whose name a Security is registered on the Registrar's
books.
"Indebtedness" means, with respect to any Person,
without duplication, (a) all indebtedness, obligations
and other liabilities (contingent or otherwise) of such
Person (i) for borrowed money (including obligations of
such Person in respect of overdrafts, foreign exchange
contracts, currency exchange agreements, interest rate
protection agreements, and any loans or advances from
banks, whether or not evidenced by notes or similar
instruments) or (ii) evidenced by credit or loan
agreements, bonds, debentures, notes or similar
instruments (whether or not the recourse of the lender
is to the whole of the assets of such Person or to only
a portion thereof) (other than any accounts payable or
other accrued current liability or obligation incurred
in the ordinary course of business in connection with
the obtaining of materials or services), (b) all
reimbursement obligations and other liabilities
(contingent or otherwise) of such Person with respect
to letters of credit, bank guarantees or bankers'
acceptances, (c) all obligations and liabilities
(contingent or otherwise) of such Person in respect of
leases of such Person required, in conformity with
GAAP, to be accounted for as capitalized lease
obligations on the balance sheet of such Person, (d)
all obligations and liabilities (contingent or
otherwise) of such Person 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 to the lessor
(whether or not such lease transaction is characterized
as an operating lease or a capitalized lease in
accordance with GAAP), (e) all obligations (contingent
or otherwise) of such Person with respect to any
interest rate or other swap, cap, floor or collar
agreement, hedge agreement, forward contract, or other
similar instrument or agreement or foreign currency
hedge, exchange, purchase or similar instrument or
agreement; (f) all direct or indirect guarantees, or
similar agreements by such Person in respect of, and
obligations or liabilities of such Person to purchase
or otherwise acquire or otherwise assure a creditor
against loss in respect of, indebtedness, obligations
or liabilities of another Person of the kinds described
in clauses (a) through (e), and (g) any and all
deferrals, renewals, extensions, refinancings and
refundings of, or amendments, modifications or
supplements to, any indebtedness, obligation or
liability of the kinds described in clauses (a) through
(f).
"Indenture" means this Indenture, as amended or
supplemented from time to time in accordance with the
terms hereof, including the provisions of the TIA that
are deemed to be a part hereof.
"Interest" means interest payable on each Security
pursuant to Section 1 of the Securities.
"Interest Payment Date" means April 15 and October
15 of each year, commencing October 15, 2004.
"Interest Record Date" means April 1 and October 1
of each year.
"Issue Date" of any Security means the date on
which the Security was originally issued or deemed
issued as set forth on the face of the Security.
"Legend" has the meaning set forth in Section
2.06(e).
"Liquidated Damages" means the interest that is
payable by the Company pursuant to the Registration
Rights Agreement upon a Registration Default (as
defined in such agreement).
"Measurement Period" means (i) the period
commencing on, and including, April 20, 2009 and ending
on, and including, October 14, 2009, and (ii) each six-
month period from October 15 to April 14 or from April
15 to October 14 thereafter.
"Notice of Default" shall have the meaning set
forth in Section 6.01.
"NYSE" means The New York Stock Exchange, Inc.
"Officer" means the Chairman of the Board, the
Chief Executive Officer, the Chief Financial Officer,
the President, the Treasurer, any Vice President, the
Secretary or any Assistant Secretary of the Company.
"Officers' Certificate" means a written
certificate containing the information specified in
Sections 12.04 and 12.05, signed in the name of the
Company by any two Officers, and delivered to the
Trustee. An Officers' Certificate given pursuant to
Section 4.03 shall be signed by an authorized financial
or accounting Officer of the Company but need not
contain the information specified in Sections 12.04 and
12.05.
"Opinion of Counsel" means a written opinion
containing the information specified in Sections 12.04
and 12.05, from legal counsel. The counsel may be an
employee of, or counsel to, the Company.
"Person" means any individual, corporation,
limited liability company, partnership, joint venture,
association, joint-stock company, trust, unincorporated
organization, or government or any agency or political
subdivision thereof.
"Purchase Agreement" means the Purchase Agreement
dated April 5, 2004 between the Company, on the one
hand, and Banc of America Securities LLC and X.X.
Xxxxxx Securities Inc., as representatives of the
initial purchasers named therein, on the other.
"Record Date" shall mean, with respect to any
dividend, distribution or other transaction or event in
which the holders of Common Stock have the right to
receive any cash, securities or other property or in
which the 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).
"Redemption Date" means the date specified in a
notice of redemption on which the Securities may be
redeemed in accordance with the terms of the Securities
and this Indenture.
"Redemption Price" or "redemption price" shall
have the meaning set forth in Section 3.01.
"Registration Rights Agreement" means the
Registration Rights Agreement, dated the date hereof,
between the Company, on the one hand, and Banc of
America Securities LLC and X.X. Xxxxxx Securities Inc.,
as representatives of the several initial purchasers
under the Purchase Agreement, on the other.
"Responsible Officer" means, 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
treasurer, trust officer or any other officer
associated with the corporate trust department 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.
"Restricted Security" means a Security required to
bear the Legend.
"Rule 144A" means Rule 144A under the Securities
Act (or any successor provision), as it may be amended
from time to time.
"SEC" means the Securities and Exchange
Commission.
"Securities" means any of the Company's 2%
Convertible Senior Debentures Due 2034, as amended or
supplemented from time to time, issued under this
Indenture.
"Securities Act" means the Securities Act of 1933,
as amended.
"Securityholder" or "Holder" means a person in
whose name a Security is registered on the Registrar's
books.
"Stated Maturity", when used with respect to any
Security, means April 15, 2034.
"Subsidiary" means any person of which at least a
majority of the outstanding Voting Stock shall at the
time directly or indirectly be owned or controlled by
the Company or by one or more Subsidiaries or by the
Company and one or more Subsidiaries.
"Tax Original Issue Discount" means the amount of
ordinary interest income on a Security that must be
accrued as original issue discount for United States
federal income tax purposes pursuant to United States
Treas. Reg. Sec. 1.1275-4 or any successor provision.
"Termination of Trading" will be deemed to have
occurred at any time when the Common Stock is neither
listed for trading on a United States national
securities exchange nor approved for trading on the
NASDAQ National Market or trading on any similar system
of automated dissemination of quotations of securities
prices.
"TIA" means the Trust Indenture Act of 1939 as in
effect on the date of this Indenture, provided,
however, that in the event the TIA is amended after
such date, TIA means, to the extent required by any
such amendment, the TIA as so amended.
"Trading Day" means a day during which trading in
securities generally occurs on the NYSE or, if the
Common Stock is not listed for trading on the NYSE, on
the principal other national or regional securities
exchange on which the Common Stock then is listed or,
if the Common Stock is not listed for trading on a
national or regional securities exchange, on the
National Association of Securities Dealers Automated
Quotation System or, if the Common Stock is not quoted
on the National Association of Securities Dealers
Automated Quotation System, on the principal other
market on which the Common Stock is then traded.
"Trading Price" of the Securities on any Trading
Day means the average of the secondary market bid
quotations per Security obtained by the Company for
$5,000,000 principal amount of the Securities at
approximately 3:30 p.m., New York City time, on such
Trading Day from three independent nationally
recognized securities dealers the Company selects,
provided that if at least three such bids cannot
reasonably be obtained by the Company, but two such
bids can be obtained, then the average of the two bids
shall be used, and if only one such bid can reasonably
be obtained by the Company, this one bid shall be used.
If the Company cannot reasonably obtain at least one
bid for $5,000,000 principal amount of the Securities
from a nationally recognized securities dealer on such
Trading Day, then the Trading Price of the Securities
will be deemed to be the Closing Sale Price per share
of Common Stock on such Trading Day multiplied by the
Conversion Rate then in effect.
"Trustee" means the party named as the "Trustee"
in the first paragraph of this Indenture until a
successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall
mean such successor. The foregoing sentence shall
likewise apply to any subsequent such successor or
successors.
"Voting Stock" of a person means Capital Stock of
such person of the class or classes pursuant to which
the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of
the board of directors, managers or trustees of such
person (irrespective of whether or not at the time
Capital Stock of any other class or classes shall have
or might have voting power by reason of the happening
of any contingency).
Section 1.02 . 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.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee"
means the Trustee.
"obligor" on the indenture securities means the
Company.
All other TIA terms used in this Indenture that
are defined by the TIA, defined by TIA reference to
another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
Section 1.03 . Rules Of Construction. Unless the
context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally
accepted accounting principles as in effect from time
to time;
(3) "or" is not exclusive;
(4) "including" means including, without limitation;
and
(5) words in the singular include the plural, and
words in the plural include the singular.
Section 1.04 . Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and,
except as herein otherwise expressly provided, such
action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it
is hereby expressly required, to the Company, as
described in Section 12.02. Such instrument or
instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as
the "Act" of Holders signing such instrument or
instruments. Proof of execution of any such instrument
or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any person
of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a
certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument
or writing acknowledged to such officer the execution
thereof. Where such execution is by a signer acting in
a capacity other than such signer's individual
capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority.
The fact and date of the execution of any such
instrument or writing, or the authority of the person
executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
(c) The principal amount and serial number of any
Security and the ownership of Securities shall be
proved by the register for the Securities.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of
any Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(e) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its
option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders
entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but
the Company shall have no obligation to do so. If such
a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or
other Act may be given before or after such record
date, but only the Holders of record at the close of
business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders
of the requisite proportion of outstanding Securities
have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the
outstanding Securities shall be computed as of such
record date; provided that no such authorization,
agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture
not later than six months after the record date.
ARTICLE 2
The Securities
Section 2.01 . Form And Dating. The Securities and
the Trustee's certificate of authentication shall be
substantially in the form of Exhibits A and B, which
are a part of this Indenture. The Securities may have
notations, legends or endorsements required by law,
stock exchange rule or usage (provided that any such
notation, legend or endorsement required by usage is in
a form acceptable to the Company). The Company shall
provide any such notations, legends or endorsements to
the Trustee in writing. Each Security shall be dated
the date of its authentication.
(a) 144A Global Securities. Securities offered and
sold within the United States to qualified
institutional buyers as defined in Rule 144A ("QIBs")
in reliance on Rule 144A shall be issued, initially in
the form of a 144A Global Security, which shall be
deposited with the Trustee at its Corporate Trust
Office, as custodian for the Depositary (as defined
below) and registered in the name of The Depository
Trust Company ("DTC") or the nominee thereof (DTC, or
any successor thereto, and any such nominee being
hereinafter referred to as the "Depositary"), duly
executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate
principal amount of the 144A Global Securities may from
time to time be increased or decreased by adjustments
made on the records of the Trustee and the Depositary
as hereinafter provided.
(b) Global Securities in General. Each Global
Security shall represent such of the outstanding
Securities as shall be specified therein and each shall
provide that it shall represent the aggregate amount of
outstanding Securities from time to time endorsed
thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be
reduced or increased, as appropriate, to reflect
exchanges, redemptions, repurchases and conversions.
Any adjustment of the aggregate principal amount
of a Global Security to reflect the amount of any
increase or decrease in the amount of outstanding
Securities represented thereby shall be made by the
Trustee in accordance with instructions given by the
Holder thereof as required by Section 2.12 hereof and
shall be made on the records of the Trustee and the
Depositary.
(c) Book-Entry Provisions. This Section 2.01(c) shall
apply only to Global Securities deposited with or on
behalf of the Depositary.
The Company shall execute and the Trustee shall,
in accordance with this Section 2.01(c), authenticate
and deliver initially one or more Global Securities
that (a) shall be registered in the name of the
Depositary, (b) shall be delivered by the Trustee to
the Depositary or held by the Trustee pursuant to the
Depositary's instructions and (c) shall be
substantially in the form of Exhibit A attached hereto.
(d) Certificated Securities. Securities not issued as
interests in the Global Securities will be issued in
certificated form substantially in the form of Exhibit
B attached hereto.
Section 2.02 . Execution And Authentication. The
Securities shall be executed on behalf of the Company
by two Officers. The signature of two Officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were, at the time of the
execution of the Securities, Officers shall bind the
Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did
not hold such offices at the date of authentication of
such Securities.
No Security shall be entitled to any benefit under
this Indenture or be valid or obligatory for any
purpose unless there appears on such Security a
certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by
manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder.
The Trustee shall authenticate and deliver the
Securities for original issue in an aggregate principal
amount of up to $175,000,000 upon one or more Company
Orders without any further action by the Company (other
than as contemplated in Section 12.04 and Section 12.05
hereof). The aggregate principal amount of the
Securities due at the Stated Maturity thereof
outstanding at any time may not exceed the amount set
forth in the foregoing sentence.
The Securities shall be issued only in registered
form without coupons and only in denominations of
$1,000 of principal amount and any integral multiple of
$1,000.
Section 2.03 . Registrar, Paying Agent and
Conversion Agent. The Company shall maintain an office
or agency where Securities may be presented for
registration of transfer or for exchange ("Registrar"),
an office or agency where Securities may be presented
for purchase or payment ("Paying Agent") and an office
or agency 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 have one or more co-
registrars, one or more additional paying agents and
one or more additional conversion agents. The term
Paying Agent includes any additional paying agent,
including any named pursuant to Section 4.05. The term
Conversion Agent includes any additional conversion
agent, including any named pursuant to Section 4.05.
The Company shall enter into an appropriate agency
agreement with any Registrar, Paying Agent, Conversion
Agent, or co-registrar (in each case, if such
Registrar, agent or co-registrar is a Person other than
the Trustee). 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 such agent. If the Company fails to
maintain a Registrar, Paying Agent or Conversion Agent,
the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section
7.07. The Company or any Subsidiary or an Affiliate of
either of them may act as Paying Agent, Registrar,
Conversion Agent or co-registrar.
The Company initially appoints the Trustee as
Registrar, Conversion Agent and Paying Agent in
connection with the Securities.
Section 2.04 . Paying Agent To Hold Money And
Securities In Trust. Except as otherwise provided
herein, on or prior to each due date of payments in
respect of any Security, the Company shall deposit with
the Paying Agent a sum of money (in immediately
available funds if deposited on the due date) or shares
of Common Stock sufficient to make such payments when
so becoming due. The Company shall require each Paying
Agent (other than the Trustee) to agree in writing that
the Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money and shares of
Common Stock held by the Paying Agent for the making of
payments in respect of the Securities and shall notify
the Trustee of any default by the Company in making any
such payment. At any time during the continuance of
any such default, the Paying Agent shall, upon the
written request of the Trustee, forthwith pay to the
Trustee all money and shares of Common Stock so held in
trust. If the Company, a Subsidiary or an Affiliate of
either of them acts as Paying Agent, it shall segregate
the money and shares of Common Stock held by it as
Paying Agent and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to pay
all money and shares of Common Stock held by it to the
Trustee and to account for any funds and Common Stock
disbursed by it. Upon doing so, the Paying Agent shall
have no further liability for the money or shares of
Common Stock.
Section 2.05 . Securityholder Lists. The Trustee
shall preserve the most recent list available to it of
the names and addresses of Securityholders. If the
Trustee is not the Registrar, the Company shall cause
to be furnished to the Trustee at least semiannually on
April 1 and October 1 a listing of Securityholders
dated within 15 days of the date on which the list is
furnished 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.
Section 2.06 . Transfer And Exchange. (a) Subject
to Section 2.12 hereof, upon surrender for registration
of transfer of any Security, together with a written
instrument of transfer satisfactory to the Registrar
duly executed by the Securityholder or such
Securityholder's attorney duly authorized in writing,
at the office or agency of the Company designated as
Registrar or co-registrar pursuant to Section 2.03, the
Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities
of any authorized denomination or denominations, of a
like aggregate principal amount. The Company shall not
charge a service charge for any registration of
transfer or exchange, but the Company may require
payment of a sum sufficient to pay all taxes,
assessments or other governmental charges that may be
imposed in connection with the transfer or exchange of
the Securities from the Securityholder requesting such
transfer or exchange.
At the option of the Holder, Securities may be
exchanged for other Securities of any authorized
denomination or denominations, of a like aggregate
principal amount upon surrender of the Securities to be
exchanged, together with a written instrument of
transfer satisfactory to the Registrar duly executed by
the Securityholder or such Securityholder's attorney
duly authorized in writing, at such office or agency.
Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
The Company shall not be required to make, and the
Registrar need not register, transfers or exchanges of
Securities selected for redemption (except, in the case
of Securities to be redeemed in part, the portion
thereof not to be redeemed) or any Securities in
respect of which a Repurchase Notice or Designated
Event Repurchase Notice has been given and not
withdrawn by the Holder thereof in accordance with the
terms of this Indenture (except, in the case of
Securities to be purchased in part, the portion thereof
not to be purchased) or any Securities for a period of
15 days before the mailing of a notice of redemption of
Securities to be redeemed.
(a) Notwithstanding any provision to the contrary
herein, so long as a Global Security remains
outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or
in part, shall be made only in accordance with Section
2.12 and this Section 2.06(a). Transfers of a Global
Security shall be limited to transfers of such Global
Security in whole or in part, to the Depositary, to
nominees of the Depositary or to a successor of the
Depositary or such successor's nominee.
(b) Successive registrations and registrations of
transfers and exchanges as aforesaid may be made from
time to time as desired, and each such registration
shall be noted on the register for the Securities.
(c) Any Registrar appointed pursuant to Section 2.03
hereof shall provide to the Trustee such information as
the Trustee may reasonably require in connection with
the delivery by such Registrar of Securities upon
transfer or exchange of Securities.
(d) No Registrar shall be required to make
registrations of transfer or exchange of Securities
during any periods designated in the text of the
Securities or in this Indenture as periods during which
such registration of transfers and exchanges need not
be made.
(e) If Securities are issued upon the transfer,
exchange or replacement of Securities subject to
restrictions on transfer and bearing the legends set
forth on the forms of Security attached hereto as
Exhibits A and B setting forth such restrictions
(collectively, the "Legend"), or if a request is made
to remove the Legend on a Security, the Securities so
issued shall bear the Legend, or the Legend shall not
be removed, as the case may be, unless there is
delivered to the Company and the Registrar such
satisfactory evidence, which shall include an opinion
of counsel, as may be reasonably required by the
Company and the Registrar and the Trustee (if not the
same Person as the Trustee), that neither the Legend
nor the restrictions on transfer set forth therein are
required to ensure that transfers thereof comply with
the provisions of Rule 144A or Rule 144 under the
Securities Act or that such Securities are not
"restricted" within the meaning of Rule 144 under the
Securities Act. Upon (i) provision of such
satisfactory evidence, or (ii) notification by the
Company to the Trustee and Registrar of the sale of
such Security pursuant to a registration statement that
is effective at the time of such sale, the Trustee, at
the written direction of the Company, shall
authenticate and deliver a Security that does not bear
the Legend. If the Legend is removed from the face of
a Security and the Security is subsequently held by the
Company or an Affiliate of the Company, the Legend
shall be reinstated.
Section 2.07 . Replacement Securities. If (a) any
mutilated Security is surrendered to the Trustee, or
(b) the Company and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of
any Security, and there is delivered to the Company and
the Trustee such security or indemnity as may be
required by them to save each of them harmless, then,
in the absence of notice to the Company or the Trustee
that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and
deliver, in exchange for any such mutilated Security or
in lieu of any such destroyed, lost or stolen Security,
a new Security of like tenor and principal amount,
bearing a certificate number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or
stolen Security has become or is about to become due
and payable, or is about to be purchased by the Company
pursuant to Article 3 hereof, the Company in its
discretion may, instead of issuing a new Security, pay
or purchase such Security, as the case may be.
Upon the issuance of any new Securities under this
Section 2.07, the Company may require the payment of a
sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every new Security issued pursuant to this Section
2.07 in lieu of any mutilated, destroyed, lost or
stolen Security shall constitute an original
contractual obligation of the Company, whether or not
the destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to
all benefits of this Indenture equally and
proportionately with any and all other Securities duly
issued hereunder.
The provisions of this Section 2.07 are exclusive
and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen
Securities.
Section 2.08 . Outstanding Securities;
Determinations Of Holders' Action. Securities
outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled
by it, those paid pursuant to Section 2.07, those
delivered to it for cancellation and those described in
this Section 2.08 as not outstanding. A Security does
not cease to be outstanding because the Company or an
Affiliate thereof holds the Security; provided,
however, that in determining whether the Holders of the
requisite principal amount of Securities have given or
concurred in any request, demand, authorization,
direction, notice, consent, waiver, or other Act
hereunder, Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and
deemed not to be outstanding, except that, in
determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other act, only
Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded.
Subject to the foregoing, only Securities outstanding
at the time of such determination shall be considered
in any such determination (including, without
limitation, determinations pursuant to Articles 6 and
9).
If a Security is replaced pursuant to Section
2.07, it ceases to be outstanding unless the Trustee
receives proof satisfactory to it that the replaced
Security is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this
Indenture, on a Redemption Date, or on the Business Day
immediately following a Repurchase Date or a Designated
Event Repurchase Date, or on Stated Maturity, money or
securities, if permitted hereunder, sufficient to pay
Securities payable on that date, then immediately after
such Redemption Date, Repurchase Date, Designated Event
Repurchase Date or Stated Maturity, as the case may be,
such Securities shall cease to be outstanding and
Interest, Contingent Interest and Liquidated Damages,
if any, on such Securities shall cease to accrue;
provided, that if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to
the Trustee has been made.
If a Security is converted in accordance with
Article 10, then from and after the time of conversion
on the date of conversion, such Security shall cease to
be outstanding and Interest, Contingent Interest and
Liquidated Damages, if any, shall cease to accrue on
such Security.
Section 2.09 . Temporary Securities. Pending the
preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities
in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and
other variations as the Officers executing such
Securities may determine, as conclusively evidenced by
their execution of such Securities.
If temporary Securities are issued, the Company
will cause definitive Securities to be prepared without
unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall
be exchangeable for definitive Securities upon
surrender of the temporary Securities at the office or
agency of the Company designated for such purpose
pursuant to Section 2.03, without charge to the Holder.
Upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and the
Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive
Securities of authorized denominations. Until so
exchanged the temporary Securities shall in all
respects be entitled to the same benefits under this
Indenture as definitive Securities.
Section 2.10 . Cancellation. All Securities
surrendered for payment, purchase by the Company
pursuant to Article 3, conversion, redemption or
registration of transfer or exchange shall, if
surrendered to any person other than the Trustee, be
delivered to the Trustee and shall be promptly
cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever,
and all Securities so delivered shall be promptly
cancelled by the Trustee. The Company may not issue
new Securities to replace Securities it has paid or
delivered to the Trustee for cancellation or that any
Holder has converted pursuant to Article 10. No
Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in
this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the
Trustee shall be disposed of by the Trustee in
accordance with the Trustee's customary procedure.
Section 2.11 . Persons Deemed Owners. Prior to due
presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company
or the Trustee may treat the person in whose name such
Security is registered as the owner of such Security
for the purpose of receiving payment of the principal
amount of the Security or any portion thereof, or the
payment of any Redemption Price, Repurchase Price or
Designated Event Repurchase Price in respect thereof,
and Interest, Contingent Interest or Liquidated Damages
thereon, for the purpose of conversion and for all
other purposes whatsoever, whether or not such Security
be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 2.12 . Global Securities.
(a) Notwithstanding any other provisions of this
Indenture or the Securities, (A) transfers of a Global
Security, in whole or in part, shall be made only in
accordance with Section 2.06 and Section 2.12(a)(i)
below, (B) transfers of a beneficial interest in a
Global Security for a Certificated Security shall
comply with Section 2.06, Section 2.12(a)(ii) below and
Section 2.12(e) below, and (C) transfers of a
Certificated Security shall comply with Section 2.06
and Section 2.12(a)(iii) and Section 2.12(a)(iv) below.
(i) Transfer of Global Security. A Global Security
may not be transferred, in whole or in part, to any
person other than the Depositary or a nominee or any
successor thereof, and no such transfer to any such
other person may be registered; provided that this
clause shall not prohibit any transfer of a Security
that is issued in exchange for a Global Security but is
not itself a Global Security. No transfer of a
Security to any Person shall be effective under this
Indenture or the Securities unless and until such
Security has been registered in the name of such
Person. Nothing in this Section 2.12(a)(i) shall
prohibit or render ineffective any transfer of a
beneficial interest in a Global Security effected in
accordance with the other provisions of this Section
2.12(a).
(ii) Restrictions on Transfer of a Beneficial Interest
in a Global Security for a Certificated Security. A
beneficial interest in a Global Security may not be
exchanged for a Certificated Security except upon
satisfaction of the requirements set forth below and in
Section 2.12(e) below. Upon receipt by the Trustee of
a transfer of a beneficial interest in a Global
Security in accordance with Applicable Procedures for a
Certificated Security in the form satisfactory to the
Trustee, together with:
(A) so long as the Securities are Restricted
Securities, certification in the form set forth in
Exhibit C;
(B) written instructions to the Trustee to make, or
direct the Registrar to make, an adjustment on its
books and records with respect to such Global Security
to reflect a decrease in the aggregate principal amount
of the Securities represented by the Global Security,
such instructions to contain information regarding the
Depositary account to be credited with such decrease;
and
(C) if the Company or the Trustee so requests, an
opinion of counsel or other evidence reasonably
satisfactory to it as to the compliance with the
restrictions set forth in the Legend,
then the Trustee shall cause, or direct the Registrar
to cause, in accordance with the standing instructions
and procedures existing between the Depositary and the
Registrar, the aggregate principal amount of the
Securities represented by the Global Security to be
decreased by the aggregate principal amount of the
Certificated Security to be issued, shall issue such
Certificated Security and shall debit or cause to be
debited to the account of the person specified in such
instructions a beneficial interest in the Global
Security equal to the principal amount of the
Certificated Security so issued.
(iii) Transfer and Exchange of Certificated
Securities. When Certificated Securities are presented
to the Registrar with a request:
(y) to register the transfer of such
Certificated Securities; or
(z) to exchange such Certificated
Securities for an equal principal amount of
Certificated Securities of other
authorized denominations,
the Registrar shall register the transfer or make the
exchange as requested if its reasonable requirements
for such transaction are met; provided, however, that
the Certificated Securities surrendered for transfer or
exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory
to the Company and the Registrar, duly executed by the
Holder thereof or his attorney duly authorized in
writing; and
(2) so long as such Securities are Restricted
Securities, such Securities are being transferred or
exchanged pursuant to an effective registration
statement under the Securities Act or pursuant to
clause (A), (B) or (C) below, and are accompanied by
the following additional information and documents, as
applicable:
(A)if such Certificated Securities
are being delivered to the Registrar by a
Holder for registration in the name of
such Holder, without transfer, a
certification from such Holder to that
effect; or
(B)if such Certificated Securities
are being transferred to the Company, a
certification to that effect; or
(C)if such Certificated Securities
are being transferred pursuant to an
exemption from registration, (i) a
certification to that effect (in the form
set forth in Exhibit C, if applicable) and
(ii) if the Company or the Trustee so
requests, an opinion of counsel or other
evidence reasonably satisfactory to it as
to the compliance with the restrictions
set forth in the Legend.
(iv) Restrictions on Transfer of a Certificated
Security for a Beneficial Interest in a Global
Security. A Certificated Security may not be exchanged
for a beneficial interest in a Global Security except
upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated
Security, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the
Trustee, together with:
(I) so long as the Securities are Restricted
Securities, certification, in the form set forth
in Exhibit C, that such Certificated Security (A)
is being transferred to a QIB in accordance with
Rule 144A under the Securities Act or (B) is being
transferred pursuant to and in compliance with
Rule 144 under the Securities Act; and
(II) written instructions directing the Trustee to
make, or to direct the Registrar to make, an
adjustment on its books and records with respect
to such Global Security to reflect an increase in
the aggregate principal amount of the Securities
represented by the Global Security, such
instructions to contain information regarding the
Depositary account to be credited with such
increase, then the Trustee shall cancel such
Certificated Security and cause, or direct the
Registrar to cause, in accordance with the
standing instructions and procedures existing
between the Depositary and the Registrar, the
aggregate principal amount of Securities
represented by the Global Security to be increased
by the aggregate principal amount of the
Certificated Security to be exchanged, and shall
credit or cause to be credited to the account of
the person specified in such instructions a
beneficial interest in the Global Security equal
to the principal amount of the Certificated
Security so cancelled. If no Global Securities
are then outstanding, the Company shall issue and
the Trustee shall authenticate, upon written order
of the Company in the form of an Officers'
Certificate, a new Global Security in the
appropriate principal amount.
(b) Subject to the succeeding Section 2.12(c), every
Security shall be subject to the restrictions on
transfer provided in the Legend including the delivery
of an opinion of counsel, if so provided. Whenever any
Restricted Security is presented or surrendered for
registration of transfer or for exchange for a Security
registered in a name other than that of the Holder,
such Security must be accompanied by a certificate in
substantially the form set forth in Exhibit C, dated
the date of such surrender and signed by the Holder of
such Security, as to compliance with such restrictions
on transfer. The Registrar shall not be required to
accept for such registration of transfer or exchange
any Security not so accompanied by a properly completed
certificate.
(c) The restrictions imposed by the Legend upon the
transferability of any Security shall cease and
terminate when such Security has been sold pursuant to
an effective registration statement under the
Securities Act or transferred in compliance with Rule
144 under the Securities Act (or any successor
provision thereto) or, if earlier, upon the expiration
of the holding period applicable to sales thereof under
Rule 144(k) under the Securities Act (or any successor
provision). Any Security as to which such restrictions
on transfer shall have expired in accordance with their
terms or shall have terminated may, upon a surrender of
such Security for exchange to the Registrar in
accordance with the provisions of this Section 2.12
(accompanied, in the event that such restrictions on
transfer have terminated by reason of a transfer in
compliance with Rule 144 or any successor provision, by
an opinion of counsel having substantial experience in
practice under the Securities Act and otherwise
reasonably acceptable to the Company and the Trustee,
addressed to the Company and the Trustee and in form
acceptable to the Company and the Trustee, to the
effect that the transfer of such Security has been made
in compliance with Rule 144 or such successor
provision), be exchanged for a new Security, of like
tenor and aggregate principal amount, which shall not
bear the restrictive Legend. The Company shall inform
the Trustee of the effective date of any registration
statement registering the Securities under the
Securities Act. The Trustee shall not be liable for
any action taken or omitted to be taken by it in good
faith in accordance with the aforementioned opinion of
counsel or registration statement.
(d) As used in the preceding two paragraphs of this
Section 2.12, the term "transfer" encompasses any sale,
pledge, transfer, loan, hypothecation, or other
disposition of any Security.
(e) The provisions of clauses (i), (ii), (iii), (iv)
and (v) below shall apply only to Global Securities:
(i) Notwithstanding any other provisions of this
Indenture or the Securities, a Global Security shall
not be exchanged in whole or in part for a Security
registered in the name of any Person other than the
Depositary or one or more nominees thereof, provided
that a Global Security may be exchanged for Securities
registered in the names of any person designated by the
Depositary in the event that (i) the Depositary has
notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security, and a
successor Depositary is not appointed by the Company
within 90 days, (ii) at any time, the Company, in its
sole discretion, determines not to have Securities
represented by Global Securities or (iii) an Event of
Default has occurred and is continuing with respect to
the Securities. Any Global Security exchanged pursuant
to clauses (i) and (ii) above shall be so exchanged in
whole and not in part, and any Global Security
exchanged pursuant to clause (iii) above may be
exchanged in whole or from time to time in part as
directed by the Depositary. Any Security issued in
exchange for a Global Security or any portion thereof
shall be a Global Security; provided that any such
Security so issued that is registered in the name of a
person other than the Depositary or a nominee thereof
shall not be a Global Security.
(ii) Securities issued in exchange for a Global
Security or any portion thereof shall be issued in
definitive, fully registered form, shall have an
aggregate principal amount equal to that of such Global
Security or portion thereof to be so exchanged, shall
be registered in such names and be in such authorized
denominations as the Depositary shall designate and
shall bear the applicable legends provided for herein.
Any Global Security to be exchanged in whole shall be
surrendered by the Depositary to the Registrar. With
regard to any Global Security to be exchanged in part,
either such Global Security shall be so surrendered for
exchange or, if the Trustee is acting as custodian for
the Depositary or its nominee with respect to such
Global Security, the principal amount thereof shall be
reduced, by an amount equal to the portion thereof to
be so exchanged, by means of an appropriate adjustment
made on the records of the Trustee. Upon any such
surrender or adjustment, the Trustee shall authenticate
and deliver the Security issuable on such exchange to
or upon the order of the Depositary or an authorized
representative thereof.
(iii) Subject to the provisions of clause (v)
below, the registered Holder may grant proxies and
otherwise authorize any person, including Agent Members
(as defined below) and persons that may hold interests
through Agent Members, to take any action which a
holder is entitled to take under this Indenture or the
Securities.
(iv) In the event of the occurrence of any of the
events specified in clause (i) above, the Company will
promptly notify the Trustee and make available to the
Trustee a reasonable supply of Certificated Securities
in definitive, fully registered form.
(v) Neither any members of, or participants in, the
Depositary (collectively, the "Agent Members") nor any
other persons on whose behalf Agent Members may act
shall have any rights under this Indenture with respect
to any Global Security registered in the name of the
Depositary or any nominee thereof, or under any such
Global Security, and the Depositary or such nominee, as
the case may be, may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as
the absolute owner and holder of such 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
such nominee, as the case may be, or impair, as between
the Depositary, its Agent Members and any other person
on whose behalf an Agent Member may act, the operation
of customary practices of such Persons governing the
exercise of the rights of a holder of any Security.
Section 2.13 . CUSIP Numbers. The Company may issue
the Securities with one or more "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided that any such notice
may state that no representation is made as to the
correctness of such numbers either as printed on the
Securities or as contained in any notice of a
redemption and that reliance may be placed only on the
other identification numbers printed on the Securities,
and any such redemption shall not be affected by any
defect in or omission of such numbers. The Company
will promptly notify the Trustee of any change in the
CUSIP numbers.
Section 2.14 . Contingent Debt Tax Treatment.
(a) The Company agrees, and by acceptance of a
beneficial interest in a Security, each Holder will be
deemed (i) to have agreed to treat the Security as
indebtedness for United States federal income tax
purposes that is subject to the United States federal
income tax regulations governing contingent payment
debt instruments, and (ii) to be bound by the Company's
determination of the "comparable yield" and "projected
payment schedule" within the meaning of the contingent
payment debt regulations. A Holder may obtain the
issue price, the amount of Tax Original Issue Discount,
issue date, yield to maturity, comparable yield and
projected payment schedule for the Security, as
determined by the Company pursuant to Treas. Reg. Sec.
1.1275-4 or any successor provision, by submitting a
written request to the Company at the following
address: Financial Federal Corporation, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Investor
Relations.
(b) Each Security shall bear a legend relating to
United States federal income tax matters in the form
set forth in Exhibits A and B.
Section 2.15 . Calculation Of Tax Original Issue
Discount. The Company shall file with the Trustee
promptly at the end of each calendar year (i) a written
notice specifying the amount of Tax Original Issue
Discount (including daily rates and accrual periods)
accrued on outstanding Securities as of the end of such
year and (ii) such other specific information relating
to such Tax Original Issue Discount as may then be
required under the Internal Revenue Code of 1986, as
amended from time to time, or the Treasury regulations
promulgated thereunder.
ARTICLE 3
Redemption And Repurchases
Section 3.01 . Company's Right To Redeem; Notices To
Trustee. Prior to April 20, 2009, the Securities will
not be redeemable at the Company's option. Beginning
on April 20, 2009, the Company, at its option, may
redeem the Securities for cash at any time as a whole,
or from time to time in part, at a redemption price
(the "Redemption Price") equal to the principal amount
of the Securities redeemed plus accrued and unpaid
Interest, accrued and unpaid Contingent Interest, if
any, and accrued and unpaid Liquidated Damages, if any,
on the Securities redeemed to (but excluding) the
Redemption Date. If the Company elects to redeem
Securities, it shall notify the Trustee in writing of
the Redemption Date, the Conversion Rate, the principal
amount of Securities to be redeemed and the Redemption
Price.
The Company shall give the notice to the Trustee
provided for in this Section 3.01 by a Company Order,
at least 45 days but not more than 60 days before the
Redemption Date (unless a shorter notice shall be
satisfactory to the Trustee).
Securities called for redemption may be
surrendered for conversion from the date of notice of
the redemption until the close of business on the
Redemption Date.
Section 3.02 . Selection Of Securities To Be
Redeemed. If less than all of the Securities are to be
redeemed, unless the procedures of the Depositary
provide otherwise, the Trustee shall select the
Securities to be redeemed by lot, on a pro rata basis
or by another method the Trustee considers fair and
appropriate (so long as such method is not prohibited
by the rules of any stock exchange on which the
Securities are then listed). Subject to the previous
sentence, the Trustee shall make the selection within
five Business Days after it receives the notice
provided for in Section 3.01 from outstanding
Securities not previously called for redemption. The
Trustee may select for redemption portions of the
principal amount of Securities that have denominations
larger than $1,000.
Securities and portions of Securities that the
Trustee selects shall be in principal amounts of $1,000
or an integral multiple of $1,000. Provisions of this
Indenture that apply to Securities called for
redemption also apply to portions of Securities called
for redemption. The Trustee shall notify the Company
promptly of the Securities or portions of the
Securities to be redeemed.
Securities and portions of Securities that are to
be redeemed are convertible, pursuant to Section
10.01(a)(2), by the Holder until the close of business
on the Redemption Date. If any Security selected for
partial redemption is converted in part before
termination of the conversion right with respect to the
portion of the Security so selected, the converted
portion of such Security shall be deemed (so far as may
be) to be the portion selected for redemption.
Securities that have been converted during a selection
of Securities to be redeemed may be treated by the
Trustee as outstanding for the purpose of such
selection.
Section 3.03 . Notice Of Redemption. At least 30
days but not more than 60 days before a Redemption
Date, the Company shall mail a notice of redemption
(substantially in the form of Exhibit D) by first-class
mail, postage prepaid, to each Holder of Securities to
be redeemed.
The notice shall identify the Securities to be
redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and
Conversion Agent;
(5) that Securities called for redemption may be
converted at any time before the close of business on
the Redemption Date;
(6) that Securities called for redemption and not
converted will be redeemed on the Business Day
immediately following the Redemption Date;
(7) that Holders who want to convert their Securities
must satisfy the requirements set forth in the
Securities;
(8) that Securities called for redemption must be
surrendered to the Paying Agent to collect the
Redemption Price;
(9) if fewer than all of the outstanding Securities
are to be redeemed, the certificate numbers, if any,
and principal amounts of the particular Securities to
be redeemed;
(10) that, unless the Company defaults in making
payment of such Redemption Price, Interest, Contingent
Interest, if any, and Liquidated Damages, if any, on
Securities called for redemption will cease to accrue
on and after the Redemption Date; and
(11) the CUSIP number(s) of the Securities.
At the Company's request, the Trustee shall give
the notice of redemption in the Company's name and at
the Company's expense, provided that the Company makes
such request at least seven Business Days prior to the
date by which such notice of redemption must be given
to Holders in accordance with this Section 3.03 and the
text of such notice is completed by the Company.
Section 3.04 . Effect Of Notice Of Redemption. Once
notice of redemption is given, Securities called for
redemption become due and payable on the Business Day
immediately following the Redemption Date and at the
Redemption Price stated in the notice except for
Securities which are converted in accordance with the
terms of this Indenture. Upon surrender to the Paying
Agent, such Securities shall be paid at the Redemption
Xxxxx stated in the notice.
Section 3.05 . Deposit Of Redemption Price. Prior
to 11:00 a.m. (New York City time), on the Business Day
immediately following the Redemption Date, the Company
shall deposit with the Paying Agent (or if the Company
or a Subsidiary or an Affiliate of either of them is
the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the Redemption Price of all
Securities to be redeemed on that date other than
Securities or portions of Securities called for
redemption which on or prior thereto have been
delivered by the Company to the Trustee for
cancellation or have been converted. The Paying Agent
shall as promptly as practicable return to the Company
any money not required for that purpose because of
conversion of Securities pursuant to Article 10. If
such money is then held by the Company in trust and is
not required for such purpose it shall be discharged
from such trust.
Section 3.06 . Securities Redeemed In Part. Upon
surrender of a Security that is redeemed in part, the
Company shall execute and the Trustee shall
authenticate and deliver to the Holder a new Security
in an authorized denomination equal in principal amount
to the unredeemed portion of the Security surrendered.
Section 3.07 . Repurchase Of Securities By The
Company At Option Of The Holder. Securities shall be
purchased by the Company at the option of the Holder on
April 15, 2009, April 15, 2014, April 15, 2019, April
15, 2024 and April 15, 2029 (each, a "Repurchase
Date"), at a purchase price in cash equal to 100% of
the principal amount of those Securities, plus accrued
and unpaid Interest, accrued and unpaid Contingent
Interest, if any, and accrued and unpaid Liquidated
Damages, if any, on those Securities, to (but
excluding) such Repurchase Date (the "Repurchase
Price"). Not later than 30 Business Days prior to any
Repurchase Date, the Company shall mail a Company
Notice (substantially in the form of Exhibit E) by
first class mail to the Trustee and to each Holder (and
to beneficial owners as required by applicable law).
The Company Notice shall include a form of repurchase
Notice to be completed by a Holder and shall state:
(i) the Repurchase Price and the Conversion Rate;
(ii) the name and address of the Paying Agent and
the Conversion Agent;
(iii) that Securities as to which a Repurchase
Notice has been given may be converted if they are
otherwise convertible only in accordance with Article
10 hereof and the terms of the Securities if the
applicable Repurchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(iv) that Securities must be surrendered to the
Paying Agent to collect payment;
(v) that the Repurchase Price for any security as
to which a Repurchase Notice has been given and not
withdrawn will be paid promptly following the later of
the Business Day immediately following the Repurchase
Date and the time of surrender of such Security as
described in (iv);
(vi) the procedures the Holder must follow to
exercise its put rights under this Section 3.07 and a
brief description of those rights;
(vii) briefly, the conversion rights, if any,
with respect to the Securities;
(viii) the procedures for withdrawing a
Repurchase Notice;
(ix) that, unless the Company defaults in making
payment on Securities for which a Repurchase Notice has
been submitted, Interest, Contingent Interest, if any,
or Liquidated Damages, if any, on such Securities will
cease to accrue on and immediately after the Repurchase
Date; and
(x) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give
such Company Notice in the Company's name and at the
Company's expense; provided, however, that, in all
cases, the text of such Company Notice shall be
prepared by the Company.
Purchases of Securities hereunder shall be made,
at the option of the Holder thereof, upon:
(1) delivery to the Paying Agent by the Holder of a
written notice of repurchase (a "Repurchase Notice")
during the period beginning at any time from the
opening of business on the date that is 20 Business
Days prior to the relevant Repurchase Date until the
close of business on the Repurchase Date stating:
(A) the certificate number of the Security
which the Holder will deliver to be purchased
or the appropriate Depositary procedures if
Certificated Securities have not been issued
for such Security,
(B) the portion of the principal amount of
the Security which the Holder will deliver to
be purchased, which portion must be in
principal amounts of $1,000 or an integral
multiple of $1,000, and
(C) that such Security shall be purchased by
the Company as of the Repurchase Date pursuant
to the terms and conditions specified in
Section 6 of the Securities and in this
Indenture; and
(2) delivery of such Security to the Paying Agent at
any time after delivery of the Repurchase Notice
(together with all necessary endorsements) at the
offices of the Paying Agent, such delivery being a
condition to receipt by the Holder of the Repurchase
Price therefor; provided, however, that such Repurchase
Price shall be so paid pursuant to this Section 3.07
only if the Security so delivered to the Paying Agent
shall conform in all respects to the description
thereof in the related Repurchase Notice.
The Company shall purchase from the Holder
thereof, pursuant to this Section 3.07, a portion of a
Security, if the principal amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions
of this Indenture that apply to the purchase of all of
a Security also apply to the purchase of such portion
of such Security.
Any purchase by the Company contemplated pursuant
to the provisions of this Section 3.07 shall be
consummated by the delivery of the consideration to be
received by the Holder promptly following the later of
the Business Day immediately following the Repurchase
Date and the time of delivery of the Security.
Notwithstanding anything herein to the contrary,
any Holder delivering to the Paying Agent the
Repurchase Notice contemplated by this Section 3.07
shall have the right to withdraw such Repurchase Notice
at any time prior to the close of business on the
Repurchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with
Section 3.09.
The Paying Agent shall promptly notify the Company
of the receipt by it of any Repurchase Notice or
written notice of withdrawal thereof.
Section 3.08 . Repurchase Of Securities At Option Of
The Holder Upon a Designated Event.
(a) If a Designated Event occurs (subject to certain
exceptions set forth below), Securities not previously
purchased by the Company shall be purchased by the
Company, at the option of the Holder thereof, at a
purchase price equal to 100% of the principal amount of
those Securities, plus accrued and unpaid Interest,
accrued and unpaid Contingent Interest, if any, and
accrued and unpaid Liquidated Damages, if any, on those
Securities (the "Designated Event Repurchase Price")
to, but not including, the date that is 30 days
following the date of the notice of a Designated Event
delivered by the Company pursuant to Section 3.08(b)
(the "Designated Event Repurchase Date"), subject to
satisfaction by or on behalf of the Holder of the
requirements set forth in Section 3.08(c).
Notwithstanding the foregoing, the Company shall
not be required to purchase Securities of Holders upon
a Designated Event that is a Change of Control pursuant
to this Section 3.08(a) if:
(i) the Closing Sale Price per share of Common Stock
for any five Trading Days within the period of 10
consecutive Trading Days (x) ending immediately after
the later of the Change of Control or the public
announcement of such Change of Control, in the case of
a Change of Control set forth under clause (A) of the
definition of Change of Control, or (y) ending
immediately before the Change of Control in the case of
a Change of Control set forth under clause (B) of the
definition of Change of Control above, in each case
equals or exceeds 130% of the Conversion Price of the
Securities in effect on each of those five Trading
Days; or
(ii) 90% or more of the consideration in the
transaction or transactions (other than cash payments
for fractional shares and cash payments made in respect
of dissenters' appraisal rights) constituting a Change
of Control described in clause (B) of the definition of
a Change of Control consists of shares of common stock
traded or to be traded immediately following a Change
of Control on a national securities exchange or the
Nasdaq National Market, and, as a result of the
transaction or transactions, the Securities become
convertible in that common stock (and any rights
attached thereto).
(b) No later than 30 days after the occurrence of a
Designated Event, the Company shall mail a Company
Notice of the Designated Event (substantially in the
form of Exhibit F) by first class mail to the Trustee
and to each Holder (and to beneficial owners as
required by applicable law). The Company Notice shall
include a form of Designated Event Purchase Notice to
be completed by the Holder and shall state:
(i) briefly, the events causing a Designated Event and
the date of such Designated Event;
(ii) the date by which the Designated Event Repurchase
Notice pursuant to this Section 3.08 must be delivered
to the Paying Agent in order for a Holder to exercise
the repurchase rights;
(iii) the Designated Event Repurchase Date;
(iv) the Designated Event Repurchase Price;
(v) the name and address of the Paying Agent and the
Conversion Agent;
(vi) the Conversion Rate;
(vii) that the Securities as to which a Designated
Event Repurchase Notice has been given may be converted
if they are otherwise convertible pursuant to Article
10 hereof only if the Designated Event Repurchase
Notice has been withdrawn in accordance with the terms
of this Indenture;
(viii) that the Securities must be surrendered to
the Paying Agent to collect payment;
(ix) that the Designated Event Repurchase Price for any
Security as to which a Designated Event Repurchase
Notice has been duly given and not withdrawn will be
paid promptly following the later of the Business Day
immediately following the Designated Event Repurchase
Date and the time of surrender of such Security as
described in clause (viii);
(x) briefly, the procedures the Holder must follow to
exercise rights under this Section 3.08;
(xi) briefly, the conversion rights, if any, on the
Securities;
(xii) the procedures for withdrawing a Designated
Event Repurchase Notice;
(xiii) that, unless the Company defaults in making
payment of such Designated Event Repurchase Price,
Interest, Contingent Interest and Liquidated Damages,
if any, on Securities surrendered for purchase by the
Company will cease to accrue on and immediately after
the Designated Event Repurchase Date; and
(xiv) the CUSIP number(s) of the Securities.
At the Company's request, the Trustee shall give
such Company Notice in the Company's name and at the
Company's expense; provided, however, that, in all
cases, the text of such Company Notice shall be
prepared by the Company.
(c) A Holder may exercise its rights specified in this
Section 3.08 upon delivery of a written notice of
purchase (a "Designated Event Repurchase Notice") to
the Paying Agent at any time on or prior to the close
of business on the Designated Event Repurchase Date
stating:
(i) the certificate number of the Security which the
Holder will deliver to be purchased or the appropriate
Depositary procedures if Certificated Securities have
not been issued;
(ii) the portion of the principal amount of the
Security which the Holder will deliver to be purchased,
which portion must be $1,000 or an integral multiple of
$1,000; and
(iii) that such Security shall be purchased
pursuant to the terms and conditions specified in the
Securities and in this Indenture.
The delivery of such Security to the Paying Agent
with the Designated Event Repurchase Notice (together
with all necessary endorsements) at the offices of the
Paying Agent shall be a condition to the receipt by the
Holder of the Designated Event Repurchase Price
therefor; provided, however, that such Designated Event
Repurchase Price shall be so paid pursuant to this
Section 3.08 only if the Security so delivered to the
Paying Agent shall conform in all respects to the
description thereof set forth in the related Designated
Event Repurchase Notice.
The Company shall purchase from the Holder
thereof, pursuant to this Section 3.08, a portion of a
Security if the principal amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions
of this Indenture that apply to the purchase of all of
a Security also apply to the purchase of such portion
of such Security.
Any purchase by the Company contemplated pursuant
to the provisions of this Section 3.08 shall be
consummated by the delivery of the Designated Event
Repurchase Price to be received by the Holder on the
Business Day immediately following the Designated Event
Repurchase Date.
Notwithstanding anything herein to the contrary,
any Holder delivering to the Paying Agent the
Designated Event Repurchase Notice contemplated by this
Section 3.08(c) shall have the right to withdraw such
Designated Event Repurchase Notice at any time prior to
the close of business on the Designated Event
Repurchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with
Section 3.09.
The Paying Agent shall promptly notify the Company
of the receipt by it of any Change of Control Purchase
Notice or written withdrawal thereof.
Section 3.09 . Effect Of Repurchase Notice Or
Designated Event Repurchase Notice.
(a) Upon receipt by the Paying Agent of the Repurchase
Notice or Designated Event Repurchase Notice specified
in Section 3.07 or Section 3.08, as applicable, the
Holder of the Security in respect of which such
Repurchase Notice or Designated Event Repurchase
Notice, as the case may be, was given shall (unless
such Repurchase Notice or Designated Event Repurchase
Notice, as the case may be, is withdrawn as specified
in the following two paragraphs) thereafter be entitled
solely to receive the Repurchase Price or Designated
Event Repurchase Price, as the case may be, with
respect to such Security. Such Repurchase Price or
Designated Event Repurchase Price shall be paid to such
Holder, subject to receipts of funds and/or securities
by the Paying Agent, promptly following the later of
(x) the Business Day immediately following the
Repurchase Date or the Designated Event Repurchase
Date, as the case may be, with respect to such Security
(provided the conditions in Section 3.07 or Section
3.08, as applicable, have been satisfied) and (y) the
time of delivery of such Security to the Paying Agent
by the Holder thereof in the manner required by Section
3.07 or Section 3.08, as applicable. Securities in
respect of which a Repurchase Notice or Designated
Event Repurchase Notice has been given by the Holder
thereof may not be converted pursuant to Article 10
hereof on or after the date of the delivery of such
Repurchase Notice or Designated Event Repurchase Notice
unless such Repurchase Notice or Designated Event
Repurchase Notice has first been validly withdrawn as
specified in the following two paragraphs.
(b) A Repurchase Notice or Designated Event Repurchase
Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent
in accordance with the Repurchase Notice or Designated
Event Repurchase Notice, as the case may be, at any
time prior to the close of business on the Repurchase
Date or Designated Event Repurchase Date, as the case
may be, specifying:
(1) the certificate number, if any, of the Security in
respect of which such notice of withdrawal is being
submitted,
(2) the principal amount of the Security with respect
to which such notice of withdrawal is being submitted,
and
(3) the principal amount, if any, of such Security
which remains subject to the original Repurchase Notice
or Designated Event Repurchase Notice, as the case may
be, and which has been or will be delivered for
purchase by the Company.
(c) There shall be no purchase of any Securities
pursuant to Section 3.07 or 3.08 if there has occurred
(prior to, on or after, as the case may be, the giving,
by the Holders of such Securities, of the required
Repurchase Notice or Designated Event Repurchase
Notice, as the case may be) and is continuing an Event
of Default (other than a default in the payment of the
Repurchase Price or Designated Event Repurchase Price,
as the case may be, with respect to such Securities).
The Paying Agent will promptly return to the respective
Holders thereof any Securities (x) with respect to
which a Repurchase Notice or Designated Event
Repurchase Notice, as the case may be, has been
withdrawn in compliance with this Indenture, or (y)
held by it during the continuance of an Event of
Default (other than a default in the payment of the
Repurchase Price or Designated Event Repurchase Price,
as the case may be, with respect to such Securities) in
which case, upon such return, the Repurchase Notice or
Designated Event Repurchase Notice with respect thereto
shall be deemed to have been withdrawn.
Section 3.10 . Deposit Of Repurchase Price Or
Designated Event Repurchase Price. Prior to 11:00 a.m.
(local time in the City of New York) on the Business
Day following the Repurchase Date or the Designated
Event Repurchase Date, as the case may be, the Company
shall deposit with the Trustee or with the Paying Agent
(or, if the Company or a Subsidiary or an Affiliate of
either of them is acting as the Paying Agent, shall
segregate and hold in trust as provided in Section
2.04) an amount of cash in immediately available funds
sufficient to pay the aggregate Repurchase Price or
Designated Event Repurchase Price, as the case may be,
of all the Securities or portions thereof which are to
be purchased as of the Repurchase Date or Designated
Event Repurchase Date, as the case may be.
Section 3.11 . Securities Purchased In Part. Any
Certificated Security which is to be purchased only in
part shall be surrendered at the office of the Paying
Agent (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 such Xxxxxx's
attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service
charge, a new Security or Securities, of any authorized
denomination as requested by such Holder in aggregate
principal amount equal to, and in exchange for, the
portion of the principal amount of the Security so
surrendered which is not purchased.
Section 3.12 . Covenant To Comply With Securities
Laws Upon Purchase Of Securities. When complying with
the provisions of Section 3.07 or 3.08 hereof (provided
that such offer or purchase constitutes an "issuer
tender offer" for purposes of Rule 13e-4 (which term,
as used herein, includes any successor provision
thereto) under the Exchange Act at the time of such
offer or purchase), and subject to any exemptions
available under applicable law, the Company shall (i)
comply with Rule 13e-4 and Rule 14e-1 (or any successor
provision) under the Exchange Act, (ii) file the
related Schedule TO (or any successor schedule, form or
report) under the Exchange Act, and (iii) otherwise
comply with all Federal and state securities laws so as
to permit the rights and obligations under Sections
3.07 and 3.08 to be exercised in the time and in the
manner specified in Sections 3.07 and 3.08.
Section 3.13 . Repayment To The Company. The
Trustee and the Paying Agent shall return to the
Company any cash that remains unclaimed as provided in
Section 13 of the Securities, together with interest,
if any, thereon (subject to the provisions of Section
7.01(f)), held by them for the payment of the
Repurchase Price or Designated Event Repurchase Price,
as the case may be.
ARTICLE 4
Covenants
Section 4.01 . Payment of Securities. The Company
shall promptly make all payments in respect of the
Securities on the dates and in the manner provided in
the Securities or pursuant to this Indenture. Any
amounts of cash in immediately available funds or
shares of Common Stock to be given to the Trustee or
Paying Agent, shall be deposited with the Trustee or
Paying Agent by 11:00 a.m., New York City time, by the
Company. The principal amount of, and Interest,
Contingent Interest, if any, and Liquidated Damages, if
any, on the Securities, and the Redemption Price,
Repurchase Price and the Designated Event Purchase
Price shall be considered paid on the applicable date
due if on such date (or, in the case of a Repurchase
Price or a Designated Event Purchase Price, on the
Business Day immediately following the applicable
Purchase Date or Designated Event Purchase Date, as the
case may be) the Trustee or the Paying Agent holds, in
accordance with this Indenture, cash or securities, if
permitted hereunder, sufficient to pay all such amounts
then due.
Section 4.02 . SEC And Other Reports. The Company
shall file with the Trustee, within 15 days after it
files such annual and quarterly reports, information,
documents and other reports with the SEC, copies of its
annual report and of the information, documents and
other reports (or copies of such portions of any of the
foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with
the SEC pursuant to Section 13 or 15(d) of the Exchange
Act. The Company shall comply with the other
provisions of TIA Section 314(a). Delivery of such
reports, information and documents to the Trustee is
for informational purposes only and the Trustee's
receipt of such shall not constitute constructive
notice of any information contained therein or
determinable from information contained therein,
including the Company's compliance with any of its
covenants hereunder (as to which the Trustee is
entitled to rely conclusively on Officers'
Certificates).
Section 4.03 . Compliance Certificate. The Company
shall deliver to the Trustee within 120 days after the
end of each fiscal year of the Company (beginning with
the fiscal year ending in July 31, 2004) an Officers'
Certificate, stating whether or not to the knowledge of
the signers thereof, the Company is in default in the
performance and observance of any of the terms,
provisions and conditions of this Indenture (without
regard to any period of grace or requirement of notice
provided hereunder) and if the Company shall be in
default, specifying all such defaults and the nature
and status thereof of which they may have knowledge.
Section 4.04 . Further Instruments And Acts. The
Company will 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.
Section 4.05 . Maintenance Of Office Or Agency. The
Company will maintain in the Borough of Manhattan, the
City of New York, an office or agency of the Trustee,
Registrar, Paying Agent and Conversion Agent where
Securities may be presented or surrendered for payment,
where Securities may be surrendered for registration of
transfer, exchange, purchase, redemption or conversion
and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be
served. The office of Deutsche Bank Trust Company
Americas shall initially be such office or agency for
all of the aforesaid purposes. The Company shall give
prompt written notice to the Trustee of the location,
and of any change in the location, of any such office
or agency (other than a change in the location of the
office of the Trustee). If at any time the Company
shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders,
notices and demands may be made or served at the
address of the Trustee set forth in Section 12.02.
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.
Section 4.06 . Delivery Of Certain Information. At
any time when the Company is not subject to Section 13
or 15(d) of the Exchange Act, upon the request of a
Holder or any beneficial owner of Securities or holder
or beneficial owner of shares of Common Stock issued
upon conversion thereof, or in accordance with Section
3.08(c), the Company will promptly furnish or cause to
be furnished Rule 144A Information (as defined below)
to such Holder or any beneficial owner of Securities or
holder or beneficial owner of shares of Common Stock,
or to a prospective purchaser of any such security
designated by any such holder, as the case may be, to
the extent required to permit compliance by such Holder
or holder with Rule 144A under the Securities Act in
connection with the resale of any such security. "Rule
144A Information" shall be such information as is
specified pursuant to Rule 144A(d)(4) under the
Securities Act. Whether a person is a beneficial owner
shall be determined by the Company to the Company's
reasonable satisfaction.
Section 4.07 . Liquidated Damages Notice. In the
event that the Company is required to pay Liquidated
Damages to holders of Securities pursuant to the
Registration Rights Agreement, the Company will provide
written notice ("Liquidated Damages Notice") to the
Trustee of its obligation to pay Liquidated Damages
prior to the Interest Record Date for the payment of
Liquidated Damages, and the Liquidated Damages Notice
shall set forth the amount of Liquidated Damages to be
paid by the Company on such payment date. The Trustee
shall not at any time be under any duty to any holder
of Securities to determine the Liquidated Damages, or
with respect to the nature, extent or calculation of
the amount of Liquidated Damages when made, or with
respect to the method employed in such calculation of
the Liquidated Damages.
ARTICLE 5
Successor Person
Section 5.01 . When Company May Merge Or Transfer
Assets. The Company shall not consolidate with or
merge with or into any other Person or convey,
transfer, sell, lease or otherwise dispose of all or
substantially all of its properties and assets to any
Person, unless:
(a) either (1) the Company shall be the continuing
corporation or (2) the Person (if other than the
Company) formed by such consolidation or into which the
Company is merged or the Person which acquires by
conveyance, transfer or lease all or substantially all
of the properties and assets of the Company (i) shall
be a corporation organized and validly existing under
the laws of the United States or any State thereof or
the District of Columbia and (ii) shall expressly
assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, all of the obligations of
the Company under the Securities and this Indenture;
(b) immediately after giving effect to such
transaction, no Event of Default, and no event that,
after notice or lapse of time or both, would become an
Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such
supplemental indenture, comply with this Article 5 and
that all conditions precedent herein provided for
relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by
lease, assignment, sale or otherwise) of the properties
and assets of one or more Designated Subsidiaries
(other than to the Company or another Subsidiary),
which, if such assets were owned by the Company, would
constitute all or substantially all of the properties
and assets of the Company, shall be deemed to be the
transfer of all or substantially all of the properties
and assets of the Company; provided that, with respect
to the foregoing, any securitization transaction or
series of securitization transactions entered into by
any Subsidiary pursuant to which such Subsidiary sells,
transfers, conveys or grants a security interest in,
any assets (including any documentation of such
securitization and rights arising therefrom) that are
the subject of such securitization transaction or
series of securitization transactions shall not be
deemed to be the transfer of all or substantially all
the assets of the Company.
The successor Person formed by such consolidation
or into which the Company is merged or the successor
Person to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under
this Indenture with the same effect as if such
successor had been named as the Company herein; and
thereafter, except in the case of a lease and
obligations the Company may have under a supplemental
indenture, the Company shall be discharged from all
obligations and covenants under this Indenture and the
Securities. Subject to Section 9.06, the Company, the
Trustee and the successor Person shall enter into a
supplemental indenture to evidence the succession and
substitution of such successor Person and such
discharge and release of the Company.
ARTICLE 6
Defaults And Remedies
Section 6.01 . Events Of Default. So long as any
Securities are outstanding, each of the following shall
be an "Event of Default":
(1) following the exercise by the Holder of the right
to convert a Security in accordance with Article 10
hereof, the Company (x) fails to deliver the cash, if
any, required to be delivered as part of the applicable
Conversion Settlement Distribution on the applicable
Conversion Settlement Date or (y) fails to deliver the
Common Stock required to be delivered as part of the
applicable Conversion Settlement Distribution on the
applicable Conversion Settlement Date;
(2) the Company defaults in its obligation to
repurchase any Security, or any portion thereof, upon
the exercise by the Holder of such Holder's right to
require the Company to purchase such Securities
pursuant to and in accordance with Section 3.07 or 3.08
hereof;
(3) the Company defaults in its obligation to redeem
any Security, or any portion thereof, called for
redemption by the Company pursuant to and in accordance
with Section 3.01 hereof;
(4) the Company fails to provide a Designated Event
Repurchase Notice when due;
(5) the Company defaults in the payment of the
principal amount of any Security when the same becomes
due and payable at its Stated Maturity or the payment
of any portion of the principal amount of any Security,
when the same becomes due and payable hereof;
(6) the Company defaults in the payment of any
Interest, Contingent Interest or Liquidated Damages
when due and payable, and continuance of such default
for a period of 30 days hereof;
(7) the Company fails to comply with any of its
agreements or covenants in the Securities or this
Indenture (other than those referred to in clause (1)
through clause (6) above) and such failure continues
for 60 days after receipt by the Company of a Notice of
Default;
(8) a failure to pay when due at maturity or a
default, event of default or other similar condition or
event (however described) that results in the
acceleration of maturity of any Indebtedness of the
Company or any Designated Subsidiary in an aggregate
amount of $25 million or more, unless the acceleration
is rescinded, stayed or annulled within 30 days after
written notice of default is given to the Company by
the Trustee or Holders of not less than 25% in
aggregate principal amount of the Securities then
outstanding;
(9) the entry by a court having jurisdiction in the
premise of (i) a decree or order for relief in respect
of the Company or any of Designated Subsidiary in an
involuntary case or proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar
law or (ii) a decree or order adjudging the Company or
any Designated Subsidiary, a bankrupt or insolvent, or
approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition
of or in respect of the Company or any Designated
Subsidiary under any applicable law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company
or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect
for a period of 90 consecutive days; and
(10) the commencement by the Company or any Designated
Subsidiary of a voluntary case or proceeding under any
applicable bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent
by the Company or any Designated Subsidiary to the
entry of a decree or order for relief in respect of the
Company or any Designated Subsidiary in an involuntary
case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or to
the commencement of any bankruptcy or insolvency case
or proceeding against the Company, or the filing by the
Company or any Designated Subsidiary of a petition or
answer or consent seeking reorganization or relief
under any applicable law, or the consent by the Company
to the filing of such petition or to the appointment of
or the taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial
part of its property, or the making by the Company or
any Designated Subsidiary of an assignment for the
benefit of creditors, or the admission by the Company
or any Designated Subsidiary in writing of its
inability to pay its debts generally as they become
due, or the taking of corporate action by the Company
or any Designated Subsidiary expressly in furtherance
of any such action.
For the avoidance of doubt, clause (7) above shall
not constitute an Event of Default until the Trustee
notifies the Company, or the Holders of at least 25% in
aggregate principal amount of the Securities at the
time outstanding notify the Company and the Trustee, of
such default and the Company does not cure such default
(and such default is not waived) within the time
specified in clause (7) above after actual receipt of
such notice. Any such notice must specify the default,
demand that it be remedied and state that such notice
is a "Notice of Default."
The Trustee shall, within 90 days of the
occurrence of an Event of Default known to it, give to
the Holders of the Securities notice of all uncured
Events of Defaults known to it and written notice of
any event which with the giving of notice or the lapse
of time, or both, would become an Event of Default, its
status and what action the Company is taking or
proposes to take with respect thereto; provided,
however, the Trustee shall be protected in withholding
such notice if it, in good faith, determines that the
withholding of such notice is in the best interest of
such Holders, except in the case of an Event of Default
specified in clauses (1) through (6) of this Section
6.01.
Section 6.02 . Acceleration. If an Event of Default
(other than an Event of Default specified in Section
6.01(9) or 6.01(10) with respect to the Company) occurs
and is continuing (the default not having been cured or
waived), the Trustee by notice to the Company, or the
Holders of at least 25% in aggregate principal amount
of the Securities at the time outstanding by notice to
the Company and the Trustee, may declare the principal
amount of the Securities and any accrued and unpaid
Interest, any accrued and unpaid Contingent Interest,
if any, and accrued and unpaid Liquidated Damages, if
any, on all the Securities to be immediately due and
payable. Upon such a declaration, such accelerated
amount shall be due and payable immediately. If an
Event of Default specified in Section 6.01(9) or
6.01(10) with respect to the Company occurs and is
continuing, the principal amount of the Securities and
any accrued and unpaid Interest, any accrued and unpaid
Contingent Interest, if any, and accrued and unpaid
Liquidated Damages, if any, on all the Securities shall
become and be immediately due and payable without any
declaration or other act on the part of the Trustee or
any Securityholders. The Holders of a majority in
aggregate principal amount of the Securities at the
time outstanding, by notice to the Trustee (and without
notice to any other Securityholder) may rescind an
acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if
all existing Events of Default have been cured or
waived except nonpayment of the principal amount of the
Securities and any accrued and unpaid Interest, any
accrued and unpaid Contingent Interest, if any, and
accrued and unpaid Liquidated Damages, if any, that
have become due solely as a result of acceleration. No
such rescission shall affect any subsequent Event of
Default or impair any right consequent thereto.
Section 6.03 . Other Remedies. If an Event of
Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of
the principal amount of the Securities and any accrued
and unpaid Interest, any accrued and unpaid Contingent
Interest, if any, and accrued and unpaid Liquidated
Damages, if any, on the Securities or to enforce the
performance of any provision of the Securities or this
Indenture.
The Trustee may maintain a proceeding even if the
Trustee does not possess any of the Securities or does
not produce any of the Securities in the proceeding. A
delay or omission by the Trustee or any Securityholder
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. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
Section 6.04 . Waiver Of Past Defaults. The Holders
of a majority in aggregate principal amount of the
Securities at the time outstanding, by notice to the
Trustee (and without notice to any other
Securityholder), may waive an existing or past Event of
Default and its consequences except (1) an Event of
Default described in Section 6.01 clauses (1) through
(6) or (2) an Event of Default in respect of a
provision that under Section 9.02 cannot be amended
without the consent of each Securityholder affected.
When an Event of Default is waived, it is deemed cured,
but no such waiver shall extend to any subsequent or
other Event of Default or impair any consequent right.
This Section 6.04 shall be in lieu of Section
316(a)1(B) of the TIA and such Section 316(a)1(B) is
hereby expressly excluded from this Indenture, as
permitted by the TIA.
Section 6.05 . Control By Majority. The Holders of
a majority in aggregate principal amount of the
Securities at the time outstanding may direct the time,
method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any
trust or power conferred on the Trustee. However, the
Trustee may refuse to follow any direction that
conflicts with law or this Indenture or that the
Trustee determines in good faith is unduly prejudicial
to the rights of other Securityholders or would involve
the Trustee in personal liability unless the Trustee is
offered indemnity satisfactory to it. This Section
6.05 shall be in lieu of Section 316(a)1(A) of the TIA
and such Section 316(a)1(A) is hereby expressly
excluded from this Indenture, as permitted by the TIA.
Section 6.06 . Limitation On Suits. A
Securityholder may not pursue any remedy with respect
to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice
stating that an Event of Default is continuing;
(2) the Holders of at least 25% in aggregate principal
amount of the Securities at the time outstanding make a
written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee
security or indemnity satisfactory to the Trustee
against any loss, liability or expense;
(4) the Trustee does not comply with the request
within 60 days after receipt of such notice, request
and offer of security or indemnity; and
(5) the Holders of a majority in aggregate principal
amount of the Securities at the time outstanding do not
give the Trustee a direction inconsistent with the
request during such 60-day period.
A Securityholder may not use this Indenture to
prejudice the rights of any other Securityholder or to
obtain a preference or priority over any other
Securityholder.
Section 6.07 . Rights Of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture,
the right of any Holder to receive payment of the
principal amount of the Securities and any accrued and
unpaid Interest, any accrued and unpaid Contingent
Interest, if any, and accrued and unpaid Liquidated
Damages, if any, in respect of the Securities held by
such Holder, on or after the respective due dates
expressed in the Securities or any Redemption Date,
Repurchase Date or Designated Event Repurchase Date,
and to convert the Securities in accordance with
Article 10, or to bring suit for the enforcement of any
such payment on or after such respective dates or the
right to convert, shall not be impaired or affected
adversely without the consent of such Holder.
Section 6.08 . Collection Suit By Trustee. If an
Event of Default described in Section 6.01 clauses (1)
through (6) 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
owing with respect to the Securities and the amounts
provided for in Section 7.07.
Section 6.09 . Trustee May File Proofs Of Claim. In
case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding
relative to the Company or any other obligor upon the
Securities or the property of the Company or of such
other obligor or their creditors, the Trustee
(irrespective of whether the principal amount of the
Securities and any accrued and unpaid Interest, any
accrued and unpaid Contingent Interest, if any, and
accrued and unpaid Liquidated Damages, if any, in
respect of the Securities shall then be due and payable
as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any
demand on the Company for the payment of any such
amount) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole principal
amount of the Securities and any accrued and unpaid
Interest, any accrued and unpaid Contingent Interest,
if any, and accrued and unpaid Liquidated Damages, if
any, and to file such other papers or documents as may
be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel or any other
amounts due the Trustee under Section 7.07) and of the
Holders allowed in such judicial proceeding, and
(b) to 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 such judicial proceeding is hereby
authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the
Holders, to pay 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.
Section 6.10 . Priorities. If the Trustee collects
any money pursuant to this Article 6, 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 amounts due and
unpaid on the Securities for the principal amount of
the Securities and any accrued and unpaid Interest, any
accrued and unpaid Contingent Interest, if any, and
accrued and unpaid Liquidated Damages, if any, as the
case may be, ratably, without preference or priority of
any kind, according to such amounts due and payable on
the Securities; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date
for any payment to Securityholders pursuant to this
Section 6.10. At least 15 days before such record
date, the Trustee shall mail to each Securityholder and
the Company a notice that states the record date, the
payment date and the amount to be paid.
Section 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 (other than the Trustee) in the suit of an
undertaking to pay the costs of the suit, and the court
in its discretion may assess reasonable costs,
including reasonable attorneys' fees and expenses,
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 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 10% in aggregate principal amount of the
Securities at the time outstanding. This Section 6.11
shall be in lieu of Section 315(e) of the TIA and such
Section 315(e) is hereby expressly excluded from this
Indenture, as permitted by the TIA.
Section 6.12 . Waiver Of Stay, Extension Or Usury
Laws. The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension
law or any usury or other law wherever enacted, now or
at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of
the principal amount of the Securities and any accrued
and unpaid Interest, any accrued and unpaid Contingent
Interest, if any, and accrued and unpaid Liquidated
Damages, if any, on Securities, as contemplated herein,
or which may affect the covenants or the performance of
this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though
no such law had been enacted.
ARTICLE 7
Trustee
Section 7.01 . Duties Of Trustee. The duties and
responsibilities of the Trustee shall be as provided by
the TIA and as set forth herein.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same
degree of care and skill in its exercise as a prudent
person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except during the continuance of an Event of
Default:
(1) the Trustee need perform only those duties that
are specifically set forth in this Indenture and no
others, and no implied duties shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of 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. This
Section 7.01(b) shall be in lieu of Section 315(a) of
the TIA and such Section 315(a) is hereby expressly
excluded from this Indenture, as permitted by the TIA.
(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:
(1) this Section (c) does not limit the effect of
Section 7.01(b);
(2) 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; and
(3) 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.
Subparagraphs (c)(1), (2) and (3) shall be in lieu
of Sections 315(d)(1), 315(d)(2) and 315(d)(3) of the
TIA and such Sections 315(d)(1), 315(d)(2) and
315(d)(3) are hereby expressly excluded from this
Indenture, as permitted by the TIA.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to this Section 7.01.
(e) The Trustee may refuse to perform any duty or
exercise any right or power unless it receives
indemnity satisfactory to it against any loss,
liability or expense.
(f) Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent
required by law. The Trustee (acting in any capacity
hereunder) shall be under no liability for interest on
any money received by it hereunder unless otherwise
agreed in writing with the Company.
(g) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 7.02 . Rights Of Trustee. Subject to its
duties and responsibilities under the TIA.
(a) the Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document (whether in
original or facsimile form) believed by it to be
genuine and to have been signed or presented by the
proper party or parties;
(b) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be
proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, conclusively
rely upon an Officers' Certificate;
(c) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(d) the Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good
faith which it believes to be authorized or within its
rights or powers conferred under this Indenture;
(e) the Trustee may consult with counsel selected by
it and any advice or Opinion of Counsel shall be full
and complete authorization and protection in respect of
any action taken or suffered or omitted by it hereunder
in good faith and in accordance with such advice or
Opinion of Counsel;
(f) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of
any of the Holders, pursuant to the provisions of this
Indenture, unless such Holders shall have offered to
the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities which may
be incurred therein or thereby;
(g) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company
Request or Company Order and any resolution of the
Board of Directors may be sufficiently evidenced by a
Board Resolution;
(h) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as
it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of
the Company, personally or by agent or attorney at the
sole cost of the Company and shall incur no liability
or additional liability of any kind by reason of such
inquiry or investigation;
(i) the Trustee shall not be deemed to have notice of
any default or Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact
such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice
references the Securities and this Indenture;
(j) 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 to each agent, custodian
and other person employed to act hereunder; and
(k) 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.
Section 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 its Affiliates with
the same rights it would have if it were not Trustee.
Any Paying Agent, Registrar, Conversion Agent or co-
registrar may do the same with like rights. However,
the Trustee must comply with Sections 7.10 and 7.11.
Section 7.04 . Trustee's Disclaimer. The Trustee
makes no representation as to the validity or adequacy
of this Indenture or the Securities, it shall not be
accountable for the Company's use or application of the
proceeds from the Securities, it shall not be
responsible for any statement in the registration
statement for the Securities under the Securities Act
or in any offering document for the Securities, the
Indenture or the Securities (other than its certificate
of authentication), or the determination as to which
beneficial owners are entitled to receive any notices
hereunder.
Section 7.05 . Notice Of Defaults. If a default or
Event of Default occurs and if it is known to the
Trustee, the Trustee shall give to each Securityholder
notice of the default or Event of Default within 90
days after it occurs or, if later, within 15 days after
it is known to the Trustee, unless such default or
Event of Default shall have been cured or waived before
the giving of such notice. Notwithstanding the
preceding sentence, except in the case of a default or
Event of Default described in Section 6.01 clauses (1)
through (6), the Trustee may withhold the notice if and
so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in
the interest of the Securityholders. The preceding
sentence shall be in lieu of the proviso to Section
315(b) of the TIA and such proviso is hereby expressly
excluded from this Indenture, as permitted by the TIA.
The Trustee shall not be deemed to have knowledge of a
default or Event of Default unless a Responsible
Officer of the Trustee has received written notice of
such default or Event of Default, which notice
specifically references this Indenture and the
Securities.
Section 7.06 . Reports By Trustee To Holders.
Within 75 days after each December 31 beginning with
the December 31 following the date of this Indenture,
the Trustee shall mail to each Securityholder a brief
report dated as of such December 31 that complies with
TIA Section 313(a), if required by such Section 313(a).
The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing
to Securityholders shall be filed with the SEC and each
securities exchange, if any, on which the Securities
are listed. The Company agrees to notify the Trustee
promptly whenever the Securities become listed on any
securities exchange and of any delisting thereof.
Section 7.07 . Compensation And Indemnity. The
Company agrees:
(a) to pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from
time to time agree in writing for all services rendered
by it hereunder (which compensation shall not be
limited (to the extent permitted by law) by any
provision of law in regard to the compensation of a
trustee of an express trust);
(b) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable
compensation and the expenses, advances and
disbursements of its agents and counsel), except any
such expense, disbursement or advance as shall be
determined to have been caused by its own negligence or
willful misconduct; and
(c) to indemnify the Trustee or any predecessor
Trustee and their agents for, and to hold them harmless
against, any loss, damage, claim, liability, cost or
expense (including reasonable attorney's fees and
expenses, and taxes (other than taxes based upon,
measured by or determined by the income of the
Trustee)) incurred without negligence or willful
misconduct on its part, arising out of or in connection
with the acceptance or administration of this trust,
including the costs and expenses of defending itself
against any claim (whether asserted by the Company or
any Holder or any other person) or liability in
connection with the exercise or performance of any of
its powers or duties hereunder.
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 the principal amount of, or the Redemption Price,
Repurchase Price, Designated Event Purchase Price,
Interest, Contingent Interest or Liquidated Damages, if
any, as the case may be, on particular Securities.
The Company's payment obligations pursuant to this
Section 7.07 shall survive the discharge of this
Indenture and the resignation or removal of the
Trustee. When the Trustee incurs expenses after the
occurrence of an Event of Default specified in Section
6.01(9) or 6.01(10), the expenses, including the
reasonable charges and expenses of its counsel, are
intended to constitute expenses of administration under
any bankruptcy law.
Section 7.08 . Replacement Of Trustee. The Trustee
may resign by so notifying the Company; provided,
however, no such resignation shall be effective until a
successor Trustee has accepted its appointment pursuant
to this Section 7.08. The Holders of a majority in
aggregate principal amount of the Securities at the
time outstanding may remove the Trustee by so notifying
the Trustee and the Company. The Company shall remove
the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise 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, by resolution of
its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee
and to the Company satisfactory in form and substance
to the retiring Trustee and 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.
If a successor Trustee does not take office within
30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate principal amount of
the Securities at the time outstanding may petition any
court of competent jurisdiction at the expense of the
Company for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10,
any Securityholder may petition any court of competent
jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
So long as no event which is, or after notice or
lapse of time, or both, would become, an Event of
Default shall have occurred and be continuing, if the
Company shall have delivered to the Trustee (i) a Board
Resolution appointing a successor Trustee, effective as
of a date specified therein, and (ii) an instrument of
acceptance of such appointment, effective as of such
date, by such successor Trustee in accordance with this
Indenture, the Trustee shall be deemed to have resigned
as contemplated in this Section 7.08, the successor
Trustee shall be deemed to have been accepted as
contemplated in this Indenture, all of such date, and
all other provisions of this Indenture shall be
applicable to such resignation, appointment and
acceptance.
Section 7.09 . Successor Trustee By Xxxxxx. If the
Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust
business or assets to, another corporation, the
resulting, surviving or transferee corporation without
any further act shall be the successor Trustee.
Section 7.10 . Eligibility; Disqualification. The
Trustee shall at all times satisfy the requirements
of TIA Sections 310(a)(1) and 310(b). The Trustee (or
its parent holding company) shall have a combined
capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of
condition. Nothing herein contained shall prevent the
Trustee from filing with the Commission the application
referred to in the penultimate paragraph of TIA Section
310(b).
Section 7.11 . Preferential Collection Of Claims
Against Company. The Trustee shall comply with TIA
Section 311(a), excluding any creditor relationship
listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
ARTICLE 8
Discharge Of Indenture
Section 8.01 . Discharge Of Liability On Securities.
When (i) the Company delivers to the Trustee all
outstanding Securities (other than Securities replaced
or repaid pursuant to Section 2.07) for cancellation or
(ii) all outstanding Securities have become due and
payable and the Company deposits with the Trustee cash
sufficient to pay all amounts due and owing on all
outstanding Securities (other than Securities replaced
pursuant to Section 2.07), and if in either case the
Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Section
7.07, cease to be of further effect. The Trustee shall
join in the execution of a document prepared by the
Company acknowledging satisfaction and discharge of
this Indenture on demand of the Company accompanied by
an Officers' Certificate and Opinion of Counsel and at
the cost and expense of the Company.
Section 8.02 . Repayment To The Company. The
Trustee and the Paying Agent shall return to the
Company upon written request any money or securities
held by them for the payment of any amount with respect
to the Securities that remains unclaimed for two years,
subject to applicable unclaimed property law. After
return to the Company, Holders entitled to the money or
securities must look to the Company for payment as
general creditors unless an applicable abandoned
property law designates another person and the Trustee
and the Paying Agent shall have no further liability to
the Securityholders with respect to such money or
securities for that period commencing after the return
thereof.
ARTICLE 9
Amendments
Section 9.01 . Without Consent Of Holders. The
Company and the Trustee may amend this Indenture or the
Securities without the consent of any Securityholder
to:
(a) add to the covenants of the Company for the
benefit of the Holders of Securities;
(b) surrender any right or power herein conferred upon
the Company;
(c) provide for conversion rights of Holders of
Securities if any reclassification or change of the
Common Stock or any consolidation, merger or sale of
all or substantially all of the Company's assets
occurs;
(d) provide for the assumption of the Company's
obligations to the Holders of Securities in the case of
a merger, consolidation, conveyance, transfer or lease
pursuant to Article 5 hereof;
(e) increase the Conversion Rate; provided, however,
that such increase in the Conversion Rate shall not
adversely affect the interests of the Holders of
Securities (after taking into account tax and other
consequences of such increase);
(f) comply with the requirements of the SEC in order
to effect or maintain the qualification of this
Indenture under the TIA or in connection with the
registration of the Securities as contemplated by the
Registration Rights Agreement;
(g) cure any ambiguity or to correct or supplement any
provision herein which may be inconsistent with any
other provision herein or which is otherwise defective;
(h) establish the form of Securities if issued in
definitive form (substantially in the form of Exhibit
B);
(i) evidence and provide for the acceptance of the
appointment under this Indenture of a successor Trustee
in accordance with the terms of this Indenture;
(j) add or modify any other provisions herein with
respect to matters or questions arising hereunder which
the Company and the Trustee may deem necessary or
desirable and which will not adversely affect the
interests of the Holders of Securities in any material
respect; provided that any addition or modification
made solely to conform the provisions of this Indenture
to the "Description of Debentures" in the Offering
Memorandum relating to the Securities will not be
deemed to adversely affect the interests of the holders
of the Securities.
Section 9.02 . With Consent Of Holders. Except as
provided below in this Section 9.02, this Indenture or
the Securities may be amended, modified or
supplemented, and noncompliance in any particular
instance with any provision of this Indenture or the
Securities may be waived, in each case with the written
consent of the Holders of at least a majority of the
principal amount of the Securities at the time
outstanding.
Without the written consent or the affirmative
vote of each Holder of Securities affected thereby, an
amendment, supplement or waiver under this Section 9.02
may not:
(a) change the maturity of any Security, or the
payment date of any installment of Interest, Contingent
Interest or Liquidated Damages payable on any Security;
(b) reduce the principal amount of, or the Interest,
or the Contingent Interest or Liquidated Damages,
payable on, or the Redemption Price, Repurchase Price
or Designated Event Purchase Price of, any Security;
(c) impair or adversely affect the conversion rights
of any Holder of Securities;
(d) change the currency of payment of such Securities
or Interest, Contingent Interest, Liquidated Damages,
Redemption Price, Designated Event Purchase Price or
Repurchase Price thereon;
(e) alter the manner of calculation or rate of accrual
of Interest, Contingent Interest or Liquidated Damages,
Redemption Price, Designated Event Purchase Price or
Repurchase Price on any Security, or extend time for
payment of any amounts due and payable to the Holders
of the Securities;
(f) impair the right of any Holder to institute suit
for the enforcement of any payment or with respect to,
or conversion of, any Security;
(g) adversely affect the purchase right of the Holders
of the Securities as provided in Article 3 or the right
of the Holders of the Securities to convert any
Security as provided in Article 10, except as otherwise
permitted pursuant to Article 5 or Section 10.05
hereof;
(h) modify the provisions of Article 3 in a manner
adverse to the Holders of the Securities;
(i) modify any of the provisions of this Section, or
reduce the percentage of the aggregate principal amount
of outstanding Securities required to amend, modify or
supplement the Indenture or the Security or waive an
Event of Default, except to provide that certain other
provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each
outstanding Security affected thereby; or
(j) reduce the percentage of the aggregate principal
amount of the outstanding Securities the consent of
whose Holders is required for any such supplemental
indenture entered into in accordance with this Section
9.02 or the consent of whose Holders is required for
any waiver provided for in this Indenture.
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, but it shall
be sufficient if such consent approves the substance
thereof.
After an amendment under this Section 9.02 becomes
effective, the Company shall mail to each Holder a
notice briefly describing the amendment.
Nothing in this Section 9.02 shall impair the
ability of the Company and the Trustee to amend this
Indenture or the Securities without the consent of any
Securityholder to provide for the assumption of the
Company's obligations to the Holders of Securities in
the case of a merger, consolidation, conveyance,
transfer or lease pursuant to Article 5 hereof.
Section 9.03 . Compliance With Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall comply with the TIA.
Section 9.04 . Revocation And Effect Of Consents,
Waivers And Actions. Until an amendment, waiver or
other action by Holders becomes effective, a consent
thereto by a Holder of a Security hereunder is a
continuing consent by the Holder and every subsequent
Holder of that Security or portion of the Security that
evidences the same obligation as the consenting
Holder's Security, even if notation of the consent,
waiver or action is not made on the Security. However,
any such Holder or subsequent Holder may revoke the
consent, waiver or action as to such Holder's Security
or portion of the Security if the Trustee receives the
notice of revocation before the date the amendment,
waiver or action becomes effective. After an
amendment, waiver or action becomes effective, it shall
bind every Securityholder.
Section 9.05 . Notation On Or Exchange Of
Securities. Securities authenticated and delivered
after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in
the opinion of the Trustee and the Board of Directors,
to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered
by the Trustee in exchange for outstanding Securities.
Section 9.06 . Trustee To Sign Supplemental
Indentures. The Trustee shall sign any supplemental
indenture authorized pursuant to this Article 9 if the
amendment contained therein does not affect the rights,
duties, liabilities or immunities of the Trustee. If
it does, the Trustee may, but need not, sign such
supplemental indenture. In signing such supplemental
indenture the Trustee shall receive, and (subject to
the provisions of Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and
an Opinion of Counsel stating that such amendment is
authorized or permitted by this Indenture.
Section 9.07 . Effect Of Supplemental Indentures.
Upon the execution of any supplemental indenture under
this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall
be bound thereby.
ARTICLE 10
Conversions
Section 10.01 . Conversion Privilege.
(a) Subject to and upon compliance with the
provisions of this Article 10 (including without
limitation the Company's right, in its sole and
absolute discretion, to satisfy its Conversion
Obligation in any manner permitted pursuant to Section
10.03), a Holder of a Security shall have the right, at
such Holder's option, to convert all or any portion (if
the portion to be converted is $1,000 principal amount
or an integral multiple thereof) of such Security at
any time prior to the close of business on the Stated
Maturity into shares of Common Stock at the Conversion
Rate (the "Conversion Obligation") in effect on the
date of conversion:
(1) during any fiscal quarter of the Company (a
"Fiscal Quarter") (and only during such Fiscal Quarter)
commencing after July 31, 2004, if the Closing Sale
Price of the Common Stock for 20 of the last 30 Trading
Days of the immediately preceding Fiscal Quarter was
130% or more of the Conversion Price in effect on such
30th Trading Day;
(2) at any time prior to the close of business on the
Redemption Date, if such Security has been called for
redemption pursuant to Article 3 hereof;
(3) at any time when the Securities are rated by Fitch
Ratings, Inc. and such rating is at or below BB (it
being agreed that the Company shall have no obligation
to maintain a rating on the Securities); provided that
this clause (3) shall not apply if Fitch Ratings, Inc.
withdraws its rating, is no longer rating the
Securities or ceases to exist; and
(4) as provided in clause (b) of this Section 10.01.
The Company or a designated agent shall determine
on a daily basis whether the Securities shall be
convertible as a result of the occurrence of an event
specified in clause above and, if the Securities shall
be so convertible, the Company shall promptly deliver
to the Trustee and Conversion Agent written notice
thereof. Whenever the Securities shall become
convertible pursuant to Section 10.01, the Company or,
at the Company's request, the Trustee in the name and
at the expense of the Company, shall promptly notify
the Holders of the event triggering such convertibility
in the manner provided in Section 12.02, and the
Company shall also promptly publicly announce such
information and publish it on the Company's Web site.
Any notice so given shall be conclusively presumed to
have been duly given, whether or not the Holder
receives such notice.
(b) In addition, in the event that:
(1) the Company distributes to Holders of Common Stock
rights entitling them to purchase, for a period
expiring within 60 days, Common Stock at less than the
Closing Sale Price of the Common Stock on the Business
Day immediately preceding the announcement for such
distribution; or
(2) the Company distributes to Holders of Common Stock
cash or other assets, debt, securities or rights to
purchase the Company's securities, which distribution
has a per share value as determined by the Board of
Directors exceeding 10% of the Closing Sale Price of
the Common Stock on the Business Day immediately
preceding the announcement of such distribution,
then, in each case, the Securities may be
surrendered for conversion at any time on and
after the date that the Company gives notice
to the Holders of such right, which shall be
not less than 20 days prior to the Ex-
Dividend Date for such distribution, until
the earlier of the close of business on the
Business Day immediately preceding the Ex-
Dividend Date or the date the Company
announces that such distribution will not
take place, and
(3) the Company becomes a party to a consolidation,
merger or binding share exchange pursuant to which the
Common Stock would be converted into cash, stock or
other property,
then the Securities may be surrendered for
conversion at any time from and after the
date which is 15 days prior to the date
announced by the Company as the anticipated
effective time of such transaction until 15
days after the actual date of such
transaction (or, if such transaction also
constitutes a Change of Control, until the
Designated Event Repurchase Date), and, at
such effective time, the right to convert the
Securities into shares of Common Stock shall
be changed, as set forth in Section 10.05,
into a right to convert into the kind and
amount of such cash, securities or other
property which the Holder of such Securities
would have received if such Holder had
converted the Securities immediately prior to
such transaction. The Company shall notify
Holders and the Trustee at the same time the
Company publicly announces such transaction
(but in no event less than 15 days prior to
the effective date of such transaction).
Section 10.02 . Conversion Procedure; Conversion
Rate; Fractional Shares.
(a) Subject to Section 10.01 and the Company's rights
under Section 10.03, each Security shall be convertible
at the office of the Conversion Agent into fully paid
and nonassessable shares (calculated to the nearest
1/100th of a share) of Common Stock. The rate at which
shares of Common Stock shall be delivered upon
conversion (the "Conversion Rate") shall be initially
22.6778 shares of Common Stock for each $1,000
principal amount of Securities. The Conversion Rate
shall be adjusted in certain instances as provided in
Section 10.04 hereof, but shall not be adjusted for any
accrued and unpaid Interest, Contingent Interest, or
Liquidated Damages, if any. Upon conversion, no
payment shall be made by the Company with respect to
any accrued and unpaid Interest, including Contingent
Interest, if any. Instead, such amount shall be deemed
paid by the applicable Conversion Settlement
Distribution delivered upon conversion of any Security
into Common Stock. In addition, no payment or
adjustment shall be made in respect of dividends on the
Common Stock with a record date prior to the date of
conversion. Notwithstanding the foregoing, upon
conversion a Holder shall receive any accrued and
unpaid Liquidated Damages to the Conversion Date. The
Company shall not issue any fraction of a share of
Common Stock in connection with any conversion of
Securities, but instead shall, subject to Section 10.04
hereof, make a cash payment (calculated to the nearest
cent) equal to such fraction multiplied by the Closing
Sale Price of the Common Stock on the Trading Day
immediately preceding the Conversion Date.
(b) Before any Holder of a Security shall be entitled
to convert the same into Common Stock, such Holder
shall (1) in the case of Global Securities, comply with
the procedures of the Depositary in effect at that
time, and in the case of Certificated Securities,
surrender such Securities, duly endorsed to the Company
or in blank, at the office of the Conversion Agent, and
(2) give written notice to the Company in form on
reverse of such Certificated Security (a "Notice of
Conversion") at said office or place that such Holder
elects to convert the same and shall state in writing
therein the principal amount of Securities to be
converted and the name or names (with addresses) in
which such Holder wishes the certificate or
certificates for Common Stock included in the
Conversion Settlement Distribution, if any, to be
registered.
Before any such conversion, a Holder also shall
pay all taxes or duties, if any, as provided in Section
10.06 and any amount payable pursuant to Section
10.02(g).
If more than one Security shall be surrendered for
conversion at one time by the same Holder, the number
of full shares of Common Stock, if any, that shall be
deliverable upon conversion as part of the Conversion
Settlement Distribution shall be computed on the basis
of the aggregate principal amount of the Securities (or
specified portions thereof to the extent permitted
thereby) so surrendered.
(c) A Security shall be deemed to have been converted
immediately prior to the close of business on the date
(the "Conversion Date") that is the latest of: (i) the
date the Holder has complied with Section 10.02(b),
(ii) the expiration of the Cash Settlement Notice
Period or (iii) if the Company elects to pay cash in
lieu of Common Stock pursuant to Section 10.03, the
expiration of the Conversion Retraction Period.
(d) Subject to the next succeeding sentence, the
Company will, as soon as practicable following the
Conversion Settlement Date, (i) pay the cash component
(including cash in lieu of any fraction of a share to
which such Holder would otherwise be entitled), if any,
of the Conversion Settlement Distribution determined
pursuant to Section 10.03 to the Holder of a Security
surrendered for conversion, or such Holder's nominee or
nominees, and (ii) issue, or cause to be issued, and
deliver to the Conversion Agent or to such Holder, or
such Holder's nominee or nominees, certificates for the
number of full shares of Common Stock, if any, to which
such Holder shall be entitled as part of such
Conversion Settlement Distribution. The Company shall
not be required to deliver certificates for shares of
Common Stock while the stock transfer books for such
stock or the security register are duly closed for any
purpose, but certificates for shares of Common Stock
shall be issued and delivered as soon as practicable
after the opening of such books or security register,
and the Person or Persons entitled to receive the
Common Stock as part of the applicable Conversion
Settlement Distribution upon such conversion shall be
treated for all purposes as the record holder or
holders of such Common Stock, as of the close of
business on the applicable Conversion Settlement Date.
(e) In case any Security shall be surrendered for
partial conversion, the Company shall execute and the
Trustee shall authenticate and deliver to or upon the
written order of the Holder of the Security so
surrendered, without charge to such Holder (subject to
the provisions of Section 10.06 hereof), a new Security
or Securities in authorized denominations in an
aggregate principal amount equal to the unconverted
portion of the surrendered Securities.
(f) By delivering the applicable Conversion Settlement
Distribution upon conversion of any Security to the
Conversion Agent or to the Holder or such Xxxxxx's
nominee or nominees, the Company will have satisfied in
full its Conversion Obligation with respect to such
Security, and upon such delivery accrued and unpaid
Interest with respect to such Security will be deemed
to be paid in full rather than canceled, extinguished
or forfeited.
(g) If a Securityholder delivers a Notice of
Conversion after the Interest Record Date for a payment
of Interest (including Contingent Interest, if any) but
prior to the corresponding Interest Payment Date, such
Securityholder must pay to the Company, at the time
such Securityholder surrenders Securities for
conversion, an amount equal to the Interest (including
Contingent Interest, if any, and excluding, for the
avoidance of doubt, Liquidated Damages, if any), that
has accrued and will be paid on the related Interest
Payment Date. This Section 10.02(g) shall not apply to
a Securityholder that converts Securities after an
Interest Record Date for a payment of Interest but on
or prior to the corresponding Interest Payment Date if
(1) the Company has specified a Redemption Date during
such period, (2) the Company has specified a Designated
Event Purchase Date during such period or (3) to the
extent of any overdue Interest if any overdue Interest
exists at the time of conversion with respect to the
Securities converted. Notwithstanding the foregoing,
the Company shall refund any amount paid by a
Securityholder pursuant to this Section 10.02(g) if the
Cash Settlement Notice Period or, if the Company elects
to pay cash in lieu of Common Stock pursuant to Section
10.03, the Cash Settlement Averaging Period, ends on or
subsequent to the Interest Payment Date immediately
following the date such Securityholder delivered a
Notice of Conversion. Such refunded amount shall be
paid at the time of delivery of the Conversion
Settlement Distribution following conversion of any
Securities.
Section 10.03 . Payment Of Cash In Lieu Of Common
Stock.
(a) If a Holder elects to convert all or any portion
of a Security into shares of Common Stock as set forth
in Section 10.01 and the Company receives such Holder's
Notice of Conversion on or prior to the day that is 45
calendar days prior to the Stated Maturity, or with
respect to Securities called for redemption pursuant to
Section 3.01, the applicable Redemption Date (the
"Final Notice Date"), the Company may choose to satisfy
all or any portion of its Conversion Obligation in
cash. Upon such election, the Company will notify such
Holder through the Trustee of the dollar amount to be
satisfied in cash (which must be expressed either as
100% of the Conversion Obligation or as a fixed dollar
amount) at any time on or before the date that is two
Business Days following the Company's receipt of the
Notice of Conversion as specified in Section 10.02
(such period, the "Cash Settlement Notice Period"). If
the Company elects to pay cash for any portion of the
shares otherwise issuable to the Holder, the Holder may
retract the Notice of Conversion at any time during the
two Business Day period beginning on the day after the
final day of the Cash Settlement Notice Period (the
"Conversion Retraction Period"); no such retraction can
be made (and a Notice of Conversion shall be
irrevocable) if the Company does not elect to deliver
cash in lieu of shares of Common Stock (other than cash
in lieu of fractional shares). With respect to any
Notice of Conversion received by the Company prior to
the Final Notice Date, the "Conversion Settlement
Distribution" for any Security subject to such Notice
of Conversion shall consist of cash, Common Stock or a
combination thereof, as selected by the Company as set
forth below:
(i) if the Company elects to satisfy the entire
Conversion Obligation in shares of Common Stock, the
Conversion Settlement Distribution shall be a number of
shares equal to (1) the aggregate principal amount of
the Securities to be converted divided by 1,000,
multiplied by (2) the Conversion Rate.
(ii) if the Company elects to satisfy the entire
Conversion Obligation in cash, the Conversion
Settlement Distribution shall be cash in an amount
equal to the product of:
(1) a number equal to the product of
(x) the aggregate principal amount of
Securities to be converted divided by 1,000
multiplied by (y) the Conversion Rate, and
(2) the average Closing Sale Prices of
the Common Stock during the 20 Trading Days
beginning on the Trading Day immediately
following the final day of the Conversion
Retraction Period (the "Cash Settlement
Averaging Period"); and
(iii) if the Company elects to satisfy a fixed
portion (other than 100%) of the Conversion Obligation
in cash, the Conversion Settlement Distribution shall
consist of such cash amount ("Cash Amount") and a
number of shares equal to the greater of (1) zero and
(2) the excess, if any, of the number of shares
calculated as set forth in clause (i) above over the
number of shares equal to the sum, for each day of the
Cash Settlement Averaging Period, of (x) 5% of the Cash
Amount, divided by (y) the Closing Sale Price of the
Common Stock on such day.
(b) At any time on or before any Final Notice Date,
the Company may notify the Trustee if it intends to
satisfy all or any portion of the Conversion Obligation
with respect to conversions of Securities for which the
Company receives a Notice of Conversion after such
Final Notice Date in cash and the dollar amount to be
satisfied in cash (which must be expressed either as
100% or as a fixed dollar amount). In such case, the
applicable Conversion Settlement Distribution will be
computed in the same manner as set forth in clause (a)
above except that the Cash Settlement Averaging Period
shall be the 20 Trading Days beginning on the first
Trading Day following the Company's receipt of the
Notice of Conversion (or in the event that we receive a
Notice of Conversion on the business day prior to the
Stated Maturity, the 20 Trading Days beginning on the
Trading Day after the Stated Maturity).
(c) Notwithstanding anything to the contrary in this
Indenture, at any time prior to Stated Maturity, the
Company may irrevocably elect, in its sole discretion
without the consent of the Holders, by notice to the
Trustee and the Holders, to satisfy the Conversion
Obligation in cash by paying 100% of the principal
amount of the Securities converted after the date of
such election. After making such election, the Company
shall satisfy the remainder of the Conversion
Obligation to the extent it exceeds the principal
amount in Common Stock. Settlement amounts shall be
computed and settlement dates shall be determined in
the same manner as set forth above under clause (a);
provided that notice of the election to deliver cash
for the principal amount will be deemed to have been
provided on the last date of the Cash Settlement Notice
Period and the Notice of Conversion will not be
retractable.
Section 10.04 . Adjustment of Conversion Rate. The
Conversion Rate shall be adjusted from time to time by
the Company as follows:
(a) In case the Company shall hereafter pay a dividend
or make a distribution to all holders of the
outstanding Common Stock in shares of Common Stock, the
Conversion Rate shall be increased so that the same
shall equal the rate determined by dividing the
Conversion Rate in effect at the opening of business on
the date following the date fixed for the determination
of stockholders entitled to receive such dividend or
other distribution by a fraction,
(i) the numerator of which shall be the number of
shares of the Common Stock outstanding at the close of
business on the date fixed for such determination; and
(ii) the denominator of which shall be the sum of such
number of shares and the total number of shares
constituting such dividend or other distribution,
such increase to become effective immediately after the
opening of business on the day following the date fixed
for such determination. For the purpose of this
paragraph (a), the number of shares of Common Stock at
any time outstanding shall not include shares held in
the treasury of the Company. The Company will not pay
any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company. If
any dividend or distribution of the type described in
this Section 10.04(a) is declared but not so paid or
made, the Conversion Rate shall again be adjusted to
the Conversion Rate that would then be in effect if
such dividend or distribution had not been declared.
(b) In case the Company shall issue rights or warrants
to all holders of its outstanding shares of Common
Stock entitling them (for a period expiring within 60
days after the date fixed for determination of
stockholders entitled to receive such rights or
warrants) to subscribe for or purchase shares of Common
Stock at a price per share less than the Closing Sale
Price on the date fixed for determination of
stockholders entitled to receive such rights or
warrants, the Conversion Rate shall be adjusted so that
the same shall equal the rate determined by dividing
the Conversion Rate in effect immediately prior to the
date fixed for determination of stockholders entitled
to receive such rights or warrants by a fraction,
(i) the numerator of which shall be the number of
shares of Common Stock outstanding at the close of
business on the date fixed for determination of
stockholders entitled to receive such rights or
warrants plus the number of shares that the aggregate
offering price of the total number of shares so offered
would purchase at such Closing Sale Price, and
(ii) the denominator of which shall be the number of
shares of Common Stock outstanding on the date fixed
for determination of stockholders entitled to receive
such rights or warrants plus the total number of
additional shares of Common Stock offered for
subscription or purchase.
Such adjustment shall be successively made
whenever any such rights or warrants are issued, and
shall become effective immediately after the opening of
business on the day following the date fixed for
determination of stockholders entitled to receive such
rights or warrants. To the extent that shares of Common
Stock are not delivered after the expiration of such
rights or warrants, the Conversion Rate shall be
readjusted to the Conversion Rate that would then be in
effect had the adjustments made upon the issuance of
such rights or warrants been made on the basis of
delivery of only the number of shares of Common Stock
actually delivered. In the event that such rights or
warrants are not so issued, the Conversion Rate shall
again be adjusted to be the Conversion Rate that would
then be in effect if such date fixed for the
determination of stockholders entitled to receive such
rights or warrants had not been fixed. In determining
whether any rights or warrants entitle the holders to
subscribe for or purchase shares of Common Stock at
less than such Closing Sale Price, and in determining
the aggregate offering price of such shares of Common
Stock, there shall be taken into account any
consideration received by the Company for such rights
or warrants and any amount payable on exercise or
conversion thereof, the value of such consideration, if
other than cash, to be determined by the Board of
Directors.
(c) In case outstanding shares of Common Stock shall
be subdivided into a greater number of shares of Common
Stock, the Conversion Rate in effect at the opening of
business on the day following the day upon which such
subdivision becomes effective shall be proportionately
increased, and conversely, in case outstanding shares
of Common Stock shall be combined into a smaller number
of shares of Common Stock, the Conversion Rate in
effect at the opening of business on the day following
the day upon which such combination becomes effective
shall be proportionately reduced, such increase or
reduction, as the case may be, to become effective
immediately after the opening of business on the day
following the day upon which such subdivision or
combination becomes effective.
(d) In case the Company shall, by dividend or
otherwise, distribute to all holders of its Common
Stock shares of any class of Capital Stock of the
Company or evidences of its indebtedness or assets
(including securities, but excluding any rights or
warrants referred to in Section 10.04(b) and excluding
any dividend or distribution (x) paid exclusively in
cash or (y) referred to in Section 10.04(a)) (any of
the foregoing hereinafter in this Section 10.04(d)
called the "Distributed Assets"), then, in each such
case (unless the Company elects to reserve such
Distributed Assets for distribution to the Holders upon
the conversion of the Securities so that any such
holder converting Securities will receive upon such
conversion, in addition to the shares of Common Stock
to which such holder is entitled, the amount and kind
of such Distributed Assets which such holder would have
received if such holder had converted its Securities
into Common Stock immediately prior to the Record Date
for such distribution of the Distributed Assets), the
Conversion Rate shall be adjusted so that the same
shall be equal to the rate determined by multiplying
the Conversion Rate in effect on the Record Date with
respect to such distribution by a fraction,
(i) the numerator of which shall be the Current Market
Price per share of the Common Stock on such Record
Date; and
(ii) the denominator of which shall be the Current
Market Price per share of the Common Stock less the
Fair Market Value (as determined by the Board of
Directors and described in a resolution of the Board of
Directors) on the Record Date of the portion of the
Distributed Assets so distributed applicable to one
share of Common Stock,
such adjustment to become effective immediately prior
to the opening of business on the day following such
Record Date; provided, however, that in the event (1)
the then Fair Market Value (as so determined) of the
portion of the Distributed Assets so distributed
applicable to one share of Common Stock is equal to or
greater than the Current Market Price of the Common
Stock on the Record Date or (2) the Current Market
Price of Common Stock on the Record Date exceeds the
then Fair Market Value (as so determined) of the
portion of the Distributed Assets so distributed
applicable to one share of Common Stock by less than
$1.00, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Holder shall have
the right to receive upon conversion the amount of
Distributed Assets such holder would have received had
such holder converted each Security on the Record Date.
In the event that such dividend or distribution is not
so paid or made, the Conversion Rate shall again be
adjusted to be the Conversion Rate that would then be
in effect if such dividend or distribution had not been
declared. If the Board of Directors determines the
Fair Market Value of any distribution for purposes of
this Section 10.04(d) by reference to the actual or
when issued trading market for any securities, it must
in doing so consider the prices in such market over the
same period used in computing the Current Market Price
of the Common Stock.
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 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 10.04 (and no
adjustment to the Conversion Rate under this Section
10.04 will be required) until the occurrence of the
earliest Trigger Event, whereupon such rights 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
10.04(d). If any such right or warrant, including any
such existing rights or warrants distributed prior to
the date of this Indenture, are subject to events, upon
the occurrence of which such rights or warrants become
exercisable to purchase different securities, evidences
of indebtedness or other assets, then the date of the
occurrence of any and each such event shall be deemed
to be the date of distribution and record date with
respect to new rights or warrants with such rights (and
a termination or expiration of the existing rights or
warrants without exercise by any of the holders
thereof). In addition, in the event of any distribution
(or deemed distribution) of rights or warrants, or any
Trigger Event or other event (of the type described in
the preceding sentence) with respect thereto that was
counted for purposes of calculating a distribution
amount for which an adjustment to the Conversion Rate
under this Section 10.04 was made, (1) in the case of
any such rights or warrants that shall all have been
redeemed or repurchased without exercise by any holders
thereof, the Conversion Rate shall be readjusted upon
such final redemption or repurchase to give effect to
such distribution or Trigger Event, as the case may be,
as though it were a cash distribution, equal to the per
share redemption or repurchase price received by a
holder or holders of Common Stock with respect to such
rights or warrants (assuming such holder had retained
such rights or warrants), made to all holders of Common
Stock as of the date of such redemption or repurchase,
and (2) in the case of such rights or warrants that
shall have expired or been terminated without exercise
by any holders thereof, the Conversion Rate shall be
readjusted as if such rights and warrants had not been
issued.
No adjustment of the Conversion Rate shall be made
pursuant to this Section 10.04(d) in respect of rights
or warrants distributed or deemed distributed on any
Trigger Event to the extent that such rights or
warrants are actually distributed, or reserved by the
Company for distribution to holders of Securities upon
conversion by such holders of Securities to Common
Stock.
For purposes of this Section 10.04(d) and Sections
10.04(a) and (b), any dividend or distribution to which
this Section 10.04(d) is applicable that also includes
shares of Common Stock, or rights or warrants to
subscribe for or purchase shares of Common Stock (or
both), shall be deemed instead to be (1) a dividend or
distribution of the evidences of indebtedness, assets
or shares of capital stock other than such shares of
Common Stock or rights or warrants (and any Conversion
Rate adjustment required by this Section 10.04(d) with
respect to such dividend or distribution shall then be
made) immediately followed by (2) a dividend or
distribution of such shares of Common Stock or such
rights or warrants (and any further Conversion Rate
adjustment required by Sections 10.04(a) and (b) with
respect to such dividend or distribution shall then be
made), except (A) the Record Date of such dividend or
distribution shall be substituted as "the date fixed
for the determination of stockholders entitled to
receive such dividend or other distribution", "the date
fixed for the determination of stockholders entitled to
receive such rights or warrants" and "the date fixed
for such determination" within the meaning of Sections
10.04(a) and (b), and (B) any shares of Common Stock
included in such dividend or distribution shall not be
deemed "outstanding at the close of business on the
date fixed for such determination" within the meaning
of Section 10.04(a).
If any Distributed Assets requiring any adjustment
pursuant to this Section 10.04(d) consists of the
Capital Stock, or similar equity interests in, a
Subsidiary or other business unit of the Company, the
Conversion Rate in effect immediately before the close
of business on the Record Date fixed for determination
of shareholders entitled to receive the distribution
shall instead be increased by multiplying the
Conversion Rate then in effect by a fraction, (A) the
numerator of which is the sum of (1) the average of the
Closing Sale Prices of such distributed security for
the 10 Trading Days commencing on and including the
fifth Trading Day after the Ex-Dividend Date on the
NYSE or such other national or regional exchange or
market on which the securities are then listed or
quoted, plus (2) the average of the Closing Sale Prices
of the Common Stock over the same Trading Day period
and (B) the denominator of which is such average of the
Closing Sale Prices of the Common Stock.
(e) In case the Company shall, by dividend or
otherwise, distribute to all holders of its Common
Stock cash (an "Extraordinary Cash Dividend")
(excluding any dividend or distribution in connection
with the liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary), then, in
such case, the Conversion Rate shall be adjusted so
that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately
prior to the close of business on the Record Date for
such Extraordinary Cash Dividend by a fraction,
(i) the numerator of which shall be the Current Market
Price of the Common Stock on such Record Date plus the
amount of cash so distributed applicable to one share
of Common Stock, and
(ii) the denominator of which shall be such Current
Market Price of the Common Stock,
such adjustment to be effective immediately prior to
the opening of business on the day following the Record
Date; provided, however, that in the event the portion
of the cash so distributed applicable to one share of
Common Stock is equal to or greater than the Current
Market Price of the Common Stock on the Record Date, in
lieu of the foregoing adjustment, adequate provision
shall be made so that each Holder shall have the right
to receive upon conversion the amount of cash such
holder would have received had such holder converted
each Security on the record date. In the event that
such dividend or distribution is not so paid or made,
the Conversion Rate shall again be adjusted to be the
Conversion Rate that would then be in effect if such
dividend or distribution had not been declared.
(f) In case a tender or exchange offer made by the
Company or any Subsidiary for all or any portion of the
Common Stock shall expire and such tender or exchange
offer (as amended upon the expiration thereof) shall
require the payment to stockholders of consideration
per share of Common Stock having a Fair Market Value
(as determined by the Board of Directors, whose
determination shall be conclusive and described in a
resolution of the Board of Directors) that as of the
last time (the "Expiration Time") tenders or exchanges
may be made pursuant to such tender or exchange offer
(as it may be amended) exceeds the last reported
Closing Sale Price of the Common Stock on the Trading
Day next succeeding the Expiration Time, the Conversion
Rate shall be adjusted so that the same shall equal the
rate determined by multiplying the Conversion Rate in
effect immediately prior to the Expiration Time by a
fraction
(i) the numerator of which shall be the sum of (x) the
Fair Market Value (determined as aforesaid) of the
aggregate consideration payable to stockholders based
on the acceptance (up to any maximum specified in the
terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of
the Expiration Time (the shares deemed so accepted up
to any such maximum, being referred to as the
"Purchased Shares") and (y) the product of the number
of shares of Common Stock outstanding (less any
Purchased Shares) at the Expiration Time and the last
reported Closing Sale Price of the Common Stock on the
Trading Day next succeeding the Expiration Time, and
(ii) the denominator of which shall be the number of
shares of Common Stock outstanding (including any
Purchased Shares) at the Expiration Time multiplied by
last reported Closing Sale Price of the Common Stock on
the Trading Day next succeeding the Expiration Time,
such adjustment to become effective immediately prior
to the opening of business on the day following the
Expiration Time. In the event that the Company is
obligated to purchase shares pursuant to any such
tender or exchange offer, but the Company is
permanently prevented by applicable law from effecting
any such purchases or all such purchases are rescinded,
the Conversion Rate shall again be adjusted to be the
Conversion Rate that would then be in effect if such
tender or exchange offer had not been made.
(g) In case of a tender or exchange offer made by a
Person other than the Company or any Subsidiary for an
amount that increases the offeror's ownership of Common
Stock to more than twenty-five percent (25%) of the
Common Stock outstanding and shall involve the payment
by such Person of consideration per share of Common
Stock having a Fair Market Value (as determined by the
Board of Directors, whose determination shall be
conclusive, and described in a resolution of the Board
of Directors) that as of the last time (the "Offer
Expiration Time") tenders or exchanges may be made
pursuant to such tender or exchange offer (as it shall
have been amended) that exceeds the last reported
Closing Sale Price of the Common Stock on the Trading
Day next succeeding the Offer Expiration Time, and in
which, as of the Offer Expiration Time the Board of
Directors is not recommending rejection of the offer,
the Conversion Rate shall be adjusted so that the same
shall equal the rate determined by multiplying the
Conversion Rate in effect immediately prior to the
Offer Expiration Time by a fraction
(i) the numerator of which shall be the sum of (x) the
Fair Market Value (determined as aforesaid) of the
aggregate consideration payable to stockholders based
on the acceptance (up to any maximum specified in the
terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of
the Offer Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as
the "Accepted Purchased Shares") and (y) the product of
the number of shares of Common Stock outstanding (less
any Accepted Purchased Shares) at the Offer Expiration
Time and the last reported Closing Sale Price of the
Common Stock on the Trading Day next succeeding the
Offer Expiration Time, and
(ii) the denominator of which shall be the number of
shares of Common Stock outstanding (including any
Accepted Purchase Shares) at the Offer Expiration Time
multiplied by the last reported Closing Sale Price of
the Common Stock on the Trading Day next succeeding the
Offer Expiration Time,
such adjustment to become effective immediately prior
to the opening of business on the day following the
Offer Expiration Time. In the event that such Person is
obligated to purchase shares pursuant to any such
tender or exchange offer, but such Person is
permanently prevented by applicable law from effecting
any such purchases or all such purchases are rescinded,
the Conversion Rate shall again be adjusted to be the
Conversion Rate that would then be in effect if such
tender or exchange offer had not been made.
Notwithstanding the foregoing, the adjustment described
in this Section 10.04(g) shall not be made if, as of
the Offer Expiration Time, the offering documents with
respect to such offer disclose a plan or intention to
cause the Company to engage in any transaction
described in Section 10.05.
(h) The Company may make such increases in the
Conversion Rate, in addition to those required by this
Section 10.04 as the Board of Directors considers to be
advisable to avoid or diminish any income tax to
holders of Common Stock resulting from any stock
distribution; provided, however, that such increase in
the Conversion Rate shall not adversely affect the
interests of the Holders of Securities (after taking
into account tax and other consequences of such
increase).
To the extent permitted by applicable law, the
Company from time to time may increase the Conversion
Rate by any amount for any period of time if the period
is at least twenty (20) days, the increase is
irrevocable during the period and the Board of
Directors shall have made a determination that such
increase would be in the best interests of the Company,
which determination shall be conclusive. Whenever the
Conversion Rate is increased pursuant to the preceding
sentence, the Company shall mail to holders of record
of the Securities a notice of the increase at least
fifteen (15) days prior to the date the increased
Conversion Rate takes effect, and such notice shall
state the increased Conversion Rate and the period
during which it will be in effect.
(i) All calculations under this Article 10 shall be
made by the Company and shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the
case may be, with one half-cent and 0.005 of a share,
respectively, being rounded upward. No adjustment need
be made for:
(i) the issuance of any shares of Common Stock
pursuant to any present or future plan providing for
the reinvestment of dividends or interest payable on
our securities and the investment of additional
optional amounts in shares of Common Stock under any
plan,
(ii) the issuance of any shares of Common Stock or
options or rights to purchase those shares pursuant to
any present or future employee, director or consultant
benefit plan or program of or assumed by the Company or
any of its Subsidiaries,
(iii) the issuance of any shares of Common Stock
pursuant to any option, warrant, right or exercisable,
exchangeable or convertible security outstanding as of
the date the Securities were first issued,
(iv) a change in the par value of the Common Stock, or
(v) accrued and unpaid Interest, including Contingent
Interest or Liquidated Damages, if any.
To the extent the Securities become convertible
into cash, assets, property or securities (other
than Capital Stock of the Company), no adjustment
need be made thereafter as to the cash, assets,
property or such securities.
(j) Whenever the Conversion Rate is adjusted as herein
provided, the Company shall promptly file with the
Trustee and any conversion agent other than the Trustee
an Officers' Certificate setting forth the Conversion
Rate after such adjustment and setting forth a brief
statement of the facts requiring such adjustment.
Unless and until a Responsible Officer of the Trustee
shall have received such Officers' Certificate, the
Trustee shall not be deemed to have knowledge of any
adjustment of the Conversion Rate and may assume that
the last Conversion Rate of which it has knowledge is
still in effect. Promptly after delivery of such
certificate, the Company shall prepare a notice of such
adjustment of the Conversion Rate setting forth the
adjusted Conversion Rate and the date on which each
adjustment becomes effective and shall mail such notice
of such adjustment of the Conversion Rate to the holder
of each Security at his last address appearing on the
Security register provided for in Section 2.03 of this
Indenture, within twenty (20) days after execution
thereof. Failure to deliver such notice shall not
affect the legality or validity of any such adjustment.
(k) In any case in which this Section 10.04 provides
that an adjustment shall become effective immediately
after (1) a record date or Record Date for an event,
(2) the date fixed for the determination of
stockholders entitled to receive a dividend or
distribution pursuant to Section 10.04(a), (3) a date
fixed for the determination of stockholders entitled to
receive rights or warrants pursuant to Section
10.04(b), or (4) the Expiration Time for any tender or
exchange offer pursuant to Section 10.04(f), or (5) the
Offer Expiration Time for a tender offer or exchange
offer pursuant to Section 10.04(g) (each a
"Determination Date"), the Company may elect to defer
until the occurrence of the relevant Adjustment Event
(as hereinafter defined) (x) issuing to the holder of
any Security converted after such Determination Date
and before the occurrence of such Adjustment Event, the
additional shares of Common Stock or other securities
issuable upon such conversion by reason of the
adjustment required by such Adjustment Event over and
above the Common Stock issuable upon such conversion
before giving effect to such adjustment and (y) paying
to such holder any amount in cash in lieu of any
fraction pursuant to Section 10.04(a). For purposes of
this Section 10.04(k), the term "Adjustment Event"
shall mean:
(i) in any case referred to in clause (1) hereof, the
occurrence of such event,
(ii) in any case referred to in clause (2) hereof, the
date any such dividend or distribution is paid or made,
(iii) in any case referred to in clause (3) hereof,
the date of expiration of such rights or warrants, and
(iv) in any case referred to in clause (4) or clause
(5) hereof, the date a sale or exchange of Common Stock
pursuant to such tender or exchange offer is
consummated and becomes irrevocable.
(l) For purposes of this Section 10.04, the number of
shares of Common Stock at any time outstanding shall
not include shares held in the treasury of the Company
but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of
Common Stock. The Company will not pay any dividend or
make any distribution on shares of Common Stock held in
the treasury of the Company.
Section 10.05 . Effect of Reclassification,
Consolidation, Merger or Sale. If any of the following
events occur, namely (i) any reclassification or change
of the outstanding shares of Common Stock (other than a
subdivision or combination to which Section 10.04(c)
applies), (ii) any consolidation, merger, statutory
share exchange or combination of the Company with
another Person as a result of which holders of Common
Stock shall be entitled to receive stock, other
securities or other property or assets (including cash)
with respect to or in exchange for such Common Stock,
or (iii) any sale or conveyance of all or substantially
all the properties and assets of the Company to any
other Person as a result of which holders of Common
Stock shall be entitled to receive stock, other
securities or other property or assets (including cash)
with respect to or in exchange for such Common Stock,
then the Company or the successor or purchasing Person,
as the case may be, shall execute with the Trustee a
supplemental indenture (which shall comply with the
Trust Indenture Act as in force at the date of
execution of such supplemental indenture) providing
that each Security shall be convertible, subject to the
provisions of Section 10.03, into the kind and amount
of shares of stock, other securities or other property
or assets (including cash) receivable upon such
reclassification, change, consolidation, merger,
statutory share exchange, combination, sale or
conveyance by a holder of a number of shares of Common
Stock issuable upon conversion of such Securities
(assuming, for such purposes, a sufficient number of
authorized shares of Common Stock are available to
convert all such Securities) immediately prior to such
reclassification, change, consolidation, merger,
statutory share exchange, combination, sale or
conveyance assuming such holder of Common Stock did not
exercise his rights of election, if any, as to the kind
or amount of stock, other securities or other property
or assets (including cash) receivable upon such
reclassification, change, consolidation, merger,
statutory share exchange, combination, sale or
conveyance (provided that, if the kind or amount of
stock, other securities or other property or assets
(including cash) receivable upon such reclassification,
change, consolidation, merger, statutory share
exchange, combination, sale or conveyance is not the
same for each share of Common Stock in respect of which
such rights of election shall not have been exercised
("nonelecting share"), then for the purposes of this
Section 10.05 the kind and amount of stock, other
securities or other property or assets (including cash)
receivable upon such reclassification, change,
consolidation, merger, statutory share exchange,
combination, sale or conveyance for each nonelecting
share shall be deemed to be the kind and amount so
receivable per share by a plurality of the nonelecting
shares). Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may
be practicable to the adjustments provided for in this
Article 10.
The Company shall cause notice of the execution of
such supplemental indenture to be mailed to each holder
of Securities, at its address appearing on the Security
register provided for in Section 2.03 of this
Indenture, within twenty (20) days after execution
thereof. Failure to deliver such notice shall not
affect the legality or validity of such supplemental
indenture.
The above provisions of this Section shall
similarly apply to successive reclassifications,
changes, consolidations, mergers, statutory share
exchanges, combinations, sales and conveyances.
If this Section 10.05 applies to any event or
occurrence, Section 10.04 shall not apply.
Section 10.06 . Taxes on Shares Issued. The issue of
stock certificates on conversions of Securities shall
be made without charge to the converting Holder for any
tax in respect of the issue thereof. The Company shall
not, however, be required to pay any tax which may be
payable in respect of any transfer involved in the
issue and delivery of stock in any name other than that
of the holder of any Securities converted, and the
Company shall not be required to issue or deliver any
such stock certificate unless and until the Person or
Persons requesting the issue thereof shall have paid to
the Company the amount of such tax or shall have
established to the satisfaction of the Company that
such tax has been paid.
Section 10.07 . Reservation of Shares, Shares to Be
Fully Paid; Compliance with Governmental Requirements;
Listing of Common Stock.
(a) The Company shall provide, free from preemptive
rights, out of its authorized but unissued shares or
shares held in treasury, sufficient shares of Common
Stock to provide for the conversion of the Securities
from time to time as such Securities are presented for
conversion.
(b) Before taking any action which would cause an
adjustment increasing the Conversion Rate to an amount
that would cause the Conversion Price to be reduced
below the then par value, if any, of the shares of
Common Stock issuable upon conversion of the
Securities, the Company will take all corporate action
which may, in the opinion of its counsel, be necessary
in order that the Company may validly and legally issue
shares of such Common Stock at such adjusted Conversion
Rate.
(c) Error! Bookmark not defined. The Company
covenants that all shares of Common Stock which may be
issued upon conversion of Securities or in payment of
the Repurchase Price or the Designated Event Purchase
Price will upon issue be fully paid and non-assessable
by the Company and free from all taxes, liens and
charges with respect to the issue thereof.
(ii) The Company covenants that, if any shares of
Common Stock to be provided for the purpose of
conversion of Securities hereunder or for payment of
the Repurchase Price or the Designated Event Purchase
Price require registration with or approval of any
governmental authority under any federal or state law
before such shares may be validly issued upon
conversion, the Company will in good faith and as
expeditiously as possible, to the extent then permitted
by the rules and interpretations of the Securities and
Exchange Commission (or any successor thereto),
endeavor to secure such registration or approval, as
the case may be.
(iii) The Company further covenants that, if at any
time the Common Stock shall be listed on the NYSE or
any other national securities exchange or automated
quotation system, the Company will, if permitted by the
rules of such exchange or automated quotation system,
list and keep listed, so long as the Common Stock shall
be so listed on such exchange or automated quotation
system, all Common Stock issuable upon conversion of
the Security or in payment of the Repurchase Price or
the Designated Event Purchase Price; provided, however,
that, if the rules of such exchange or automated
quotation system permit the Company to defer the
listing of such Common Stock until the first conversion
of the Securities into Common Stock or the first
payment of the Repurchase Price or the Designated Event
Purchase Price in Common Stock in accordance with the
provisions of this Indenture, the Company covenants to
list such Common Stock issuable upon conversion of the
Securities or in payment of the Repurchase Price or the
Designated Event Purchase Price in accordance with the
requirements of such exchange or automated quotation
system at such time.
Section 10.08 . Responsibility of Trustee. The
Trustee and any other conversion agent shall not at any
time be under any duty or responsibility to any holder
of Securities to determine the Conversion Rate or
whether any facts exist which may require any
adjustment of the Conversion Rate, or with respect to
the nature or extent or calculation of any such
adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture
provided to be employed, in making the same. The
Trustee and any other conversion agent shall not be
accountable with respect to the validity or value (or
the kind or amount) of any shares of Common Stock, or
of any securities or property, which may at any time be
issued or delivered upon the conversion of any
Security; and the Trustee and any other conversion
agent make no representations with respect thereto.
Neither the Trustee nor any conversion agent shall be
responsible for any failure of the Company to issue,
transfer or deliver any shares of Common Stock or stock
certificates or other securities or property or cash
upon the surrender of any Security for the purpose of
conversion or to comply with any of the duties,
responsibilities or covenants of the Company contained
in this Article 10. Without limiting the generality of
the foregoing, neither the Trustee nor any conversion
agent shall be under any responsibility to determine
the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section
10.05 relating either to the kind or amount of shares
of stock or securities or property (including cash)
receivable by Holders upon the conversion of their
Securities after any event referred to in such Section
10.05 or to any adjustment to be made with respect
thereto, but, subject to the provisions of Section
7.01, may accept as conclusive evidence of the
correctness of any such provisions, and shall be
protected in relying upon, the Officers' Certificate
(which the Company shall be obligated to file with the
Trustee prior to the execution of any such supplemental
indenture) with respect thereto.
Section 10.09 . Notice To Holders Prior To Certain
Actions. In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock that would require an
adjustment in the Conversion Rate pursuant to Section
10.04; or
(b) the Company shall authorize the granting to the
holders of all or substantially all of its Common Stock
of rights or warrants to subscribe for or purchase any
share of any class or any other rights or warrants; or
(c) of any reclassification or reorganization of the
Common Stock of the Company (other than a subdivision
or combination of its outstanding Common Stock, or a
change in par value, or from par value to no par value,
or from no par value to par value), or of any
consolidation, merger or statutory share exchange to
which the Company is a party and for which approval of
any stockholders of the Company is required, or of the
sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
the Company shall cause to be filed with the Trustee
and to be mailed to each Holder of Securities at his
address appearing on the register provided for in
Section 2.03 of this Indenture, as promptly as possible
but in any event at least ten (10) days prior to the
applicable date hereinafter specified, a notice stating
(x) the date on which a record is to be taken for the
purpose of such dividend, distribution of rights or
warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be
entitled to such dividend, distribution or rights are
to be determined, or (y) the date on which such
reclassification, consolidation, merger, or statutory
share exchange, sale, transfer, dissolution,
liquidation or winding up is expected to become
effective or occur, and the date as of which it is
expected that holders of Common Stock of record shall
be entitled to exchange their Common Stock for
securities or other property deliverable upon such
reclassification, consolidation, merger, or statutory
share exchange, sale, transfer, dissolution,
liquidation or winding up. Failure to give such notice,
or any defect therein, shall not affect the legality or
validity of such dividend, distribution,
reclassification, consolidation, merger, or statutory
share exchange, sale, transfer, dissolution,
liquidation or winding up.
Section 10.10 . Rights Issued in Respect of Common
Stock Issued upon Conversion. If the Company hereafter
adopts any stockholder rights plan, a Securityholder
shall be entitled to receive upon conversion of its
Securities in addition to the shares of Common Stock
issuable upon conversion the related rights for the
Common Stock, whether or not the rights under the
future stockholder rights plan have separated from the
Common Stock at the time of conversion, but otherwise
subject to the generally applicable terms of such plan
and no additional adjustment to the Conversion Rate
shall be made for the future stockholder rights plan
under Section 10.04(d).
Section 10.11 . Unconditional Right Of Holders To
Convert.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to convert
its Security in accordance with this Article 10 and to
bring an action for the enforcement of any such right
to convert, and such rights shall not be impaired or
affected without the consent of such Holder.
ARTICLE 11
Contingent Interest
Section 11.01 . Contingent Interest.
(a) The Company shall pay Contingent Interest with
respect to the Securities for any Measurement Period
commencing with the Measurement Period ending October
14, 2009, if the average Trading Price of a Security
for the five consecutive Trading Days immediately
preceding the first day of the relevant Measurement
Period equals 120% or more of the principal amount of
such Security.
(b) The amount of Contingent Interest payable per
$1,000 principal amount of Securities in respect of any
Measurement Period will equal 0.25% per annum
calculated on the average Trading Price of $1,000
principal amount of Securities during the relevant five
consecutive Trading Days used to determine whether
Contingent Interest must be paid.
Section 11.02 . Payment Of Contingent Interest.
Payments of Contingent Interest shall be made in
the same manner, at the same time, and subject to the
same restrictions, including those restrictions in
respect of accrued and unpaid interest on any
Securities that are submitted for conversion, as
payments of Interest.
Section 11.03 . Contingent Interest Notification.
(a) By the first Business Day of a Measurement Period
for which Contingent Interest will be payable, the
Company will disseminate a press release containing
this information or publish the information on its Web
site or through such other public medium as it may use
may use at that time.
(b) On any Interest Payment Date on which Contingent
Interest is payable pursuant to this Article 11, the
Company shall issue a press release stating the amount
of such Contingent Interest and setting forth the
manner in which such amount was calculated, or publish
the information on its Web site or through such other
public medium as it may use may use at that time.
ARTICLE 12
Miscellaneous
Section 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 shall control.
Section 12.02 . Notices. Any request, demand,
authorization, notice, waiver, consent or communication
shall be in writing and delivered in person or mailed
by first-class mail, postage prepaid, addressed as
follows or transmitted by facsimile transmission
(confirmed by guaranteed overnight courier) to the
following facsimile numbers:
if to the Company:
Financial Federal Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxx Xxxxxx
if to the Trustee:
Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx-00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Trust and Securities Services
Tel: 000-000-0000
Fax: 000-000-0000
The Company or the Trustee by notice given to the
other in the manner provided above may designate
additional or different addresses for subsequent
notices or communications.
Any notice or communication given to a
Securityholder shall be delivered to the
Securityholder, in accordance with the procedures of
the Registrar or by first-class mail, postage prepaid,
at the Securityholder's address as it appears on the
registration books of the Registrar and shall be
sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders. If
a notice or communication is mailed in the manner
provided above, it is duly given, whether or not
received by the addressee.
If the Company mails a notice or communication to
the Securityholders, it shall mail a copy to the
Trustee and each Registrar, Paying Agent, Conversion
Agent or co-registrar.
Section 12.03 . Communication By Holders With Other
Holders. Securityholders may communicate pursuant to
TIA Section 312(b) with other Securityholders with
respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar,
the Paying Agent, the Conversion Agent and anyone else
shall have the protection of TIA Section 312(c).
Section 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:
(1) an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if
any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion
of such counsel, all such conditions precedent have
been complied with.
Section 12.05 . Statements Required In Certificate Or
Opinion. Each Officers' Certificate or Opinion of
Counsel with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that each person making such Officers'
Certificate or Opinion of Counsel has read such
covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the
statements or opinions contained in such Officers'
Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such
person, he has made such examination or investigation
as is necessary to enable such person to express an
informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement that, in the opinion of such person,
such covenant or condition has been complied with.
Section 12.06 . Separability Clause. In case any
provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
Section 12.07 . Rules By Trustee, Paying Agent,
Conversion Agent and Registrar. The Trustee may make
reasonable rules for action by or a meeting of
Securityholders. The Registrar, the Conversion Agent
and the Paying Agent may make reasonable rules for
their functions.
Section 12.08 . Legal Holidays. A "Legal Holiday" is
any day other than a Business Day. If any specified
date (including a date for giving notice) is a Legal
Holiday, the action shall be taken on the next
succeeding day that is not a Legal Holiday, and, if the
action to be taken on such date is a payment in respect
of the Securities, no interest shall accrue with
respect to such payment for the intervening period.
Section 12.09 . GOVERNING LAW. THIS INDENTURE SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
Section 12.10 . No Recourse Against Others. A
director, officer, employee or stockholder, as such, of
the Company shall not have any liability for any
obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of or
by reason of such obligations or their creation. By
accepting a Security, each Securityholder shall waive
and release all such liability. The waiver and release
shall be part of the consideration for the issue of the
Securities.
Section 12.11 . Successors. All agreements of the
Company in this Indenture and the Securities shall bind
its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
Section 12.12 . Multiple 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. One signed copy
is enough to prove this Indenture.
IN WITNESS WHEREOF, the undersigned, being duly
authorized, have executed this Indenture on behalf of
the respective parties hereto as of the date first
above written.
FINANCIAL FEDERAL CORPORATION
By:
Name:
Title:
By:
Name:
Title:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, As Trustee
By:
Name:
Title:
EXHIBIT A
[FORM OF FACE OF GLOBAL SECURITY]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY TO THE ISSUER 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 THE DEPOSITORY TRUST COMPANY (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED
TO TRANSFERS TO NOMINEES OF THE DEPOSITORY TRUST
COMPANY, 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 ARTICLE
TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT OF 1933"), OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT
AS SET FORTH IN THE FOLLOWING SENTENCE, BY ACQUISITION
HEREOF, THE HOLDER:
(1) REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT OF 1933;
(2) AGREES THAT IT WILL NOT, PRIOR TO THE DATE
(THE "RESALE RESTRICTION TERMINATION DATE") THAT
IS TWO YEARS AFTER THE LATER OF THE LAST DAY OF
THE ORIGINAL ISSUE DATE OF THE 2.0% CONVERTIBLE
SENIOR DEBENTURES AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), RESELL OR OTHERWISE TRANSFER THE
SECURITY EVIDENCED HEREBY OR THE COMMON STOCK
ISSUABLE UPON CONVERSION OF SUCH SECURITY EXCEPT
(A) TO FINANCIAL FEDERAL CORPORATION OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT OF 1933, (C) PURSUANT TO
ANY OTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933,
INCLUDING RULE 144 UNDER THE SECURITIES ACT OF
1933 (IF AVAILABLE), OR (D) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND
WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF
SUCH TRANSFER; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED
(OTHER THAN A TRANSFER PURSUANT TO RULE 144 OR
CLAUSE 2(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
The foregoing legend may be removed from this
Security upon the earlier of the Resale Restriction
Termination Date or the transfer of the Securities
pursuant to Rule 144 or clause 2(D) above.
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS
SECURITY IS BEING ISSUED WITH TAX ORIGINAL ISSUE
DISCOUNT AND THE ISSUE DATE OF THIS SECURITY IS APRIL
12, 2004. IN ADDITION, THIS SECURITY IS SUBJECT TO THE
UNITED STATES FEDERAL INCOME TAX REGULATIONS GOVERNING
CONTINGENT PAYMENT DEBT INSTRUMENTS. FOR PURPOSES OF
SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE
CODE, THE COMPARABLE YIELD OF THIS SECURITY IS 7.375%,
COMPOUNDED SEMI-ANNUALLY (WHICH WILL BE TREATED AS THE
YIELD TO MATURITY FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES).
THE COMPANY AGREES, AND BY ACCEPTING A BENEFICIAL
OWNERSHIP INTEREST IN THIS SECURITY EACH HOLDER AND ANY
BENEFICIAL OWNER OF THIS SECURITY WILL BE DEEMED TO
HAVE AGREED, FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES (1) TO TREAT THIS SECURITY AS A DEBT
INSTRUMENT THAT IS SUBJECT TO TREAS. REG. SEC. 1.1275-
4, OR ANY SUCCESSOR PROVISION (THE "CONTINGENT PAYMENT
REGULATIONS"), AND (2) TO BE BOUND BY THE COMPANY'S
DETERMINATION OF THE "COMPARABLE YIELD" AND "PROJECTED
PAYMENT SCHEDULE," WITHIN THE MEANING OF THE CONTINGENT
PAYMENT REGULATIONS. THE COMPANY AGREES TO PROVIDE
PROMPTLY TO THE HOLDER OF THIS SECURITY, UPON WRITTEN
REQUEST, THE ISSUE PRICE, AMOUNT OF TAX ORIGINAL ISSUE
DISCOUNT, ISSUE DATE, YIELD TO MATURITY, COMPARABLE
YIELD AND PROJECTED PAYMENT SCHEDULE. ANY SUCH WRITTEN
REQUEST SHOULD BE SENT TO THE COMPANY AT THE FOLLOWING
ADDRESS: FINANCIAL FEDERAL CORPORATION, 000 XXXXX
XXXXXX, XXX XXXX, XXX XXXX 00000, ATTENTION: INVESTOR
RELATIONS.
Pursuant to Section 2.14 of the Indenture, the
foregoing legend is required for United States federal
income tax purposes.
FINANCIAL FEDERAL CORPORATION
2% Convertible Senior Debentures Due 2034
REGISTERED
CUSIP: 317492 AE 6
ISSUE DATE: April 12, 2004 Principal Amount: $175,000,000
No. R-1
FINANCIAL FEDERAL CORPORAITON, a Nevada
corporation, promises to pay to Cede & Co. or
registered assigns, the principal amount of One Hundred
Seventy-Five Million Dollars, on April 15, 2034.
Interest Rate: 2% per year.
Interest Payment Dates: April 15 and October 15 of
each year, commencing October 15, 2004.
Interest Record Date: April 1 and October 1 of
each year.
Reference is hereby made to the further provisions
of this Security set forth on the reverse side of this
Security, which further provisions shall for all
purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate
seal.
Dated: April 12, 2004 FINANCIAL FEDERAL CORPORATION
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee, certifies that this is one
of the Securities referred to in the
within-mentioned Indenture.
By__________________________________
Authorized Signatory
Dated: April 12, 2004
[FORM OF REVERSE OF GLOBAL SECURITY]
2% Convertible Senior Debentures Due 2034
This Security is one of a duly authorized issue of
2% Convertible Senior Debentures Due 2034 (the
"Securities") of Financial Federal Corporation, a
Nevada corporation (including any successor corporation
under the Indenture hereinafter referred to, the
"Company"), issued under an Indenture, dated as of
April 12, 2004 (the "Indenture"), between the Company
and Deutsche Bank Trust Company Americas, as trustee
(the "Trustee"). The terms of the Security include
those stated in the Indenture, those made part of the
Indenture by reference to the Trust Indenture Act of
1939, as amended ("TIA"), and those set forth in this
Security. This Security is subject to all such terms,
and Holders are referred to the Indenture and the TIA
for a statement of all such terms. To the extent
permitted by applicable law, in the event of any
inconsistency between the terms of this Security and
the terms of the Indenture, the terms of the Indenture
shall control. Capitalized terms used but not defined
herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
1. Interest.
The Securities shall bear interest on the
principal amount thereof at a rate of 2% per year. The
Company shall pay Contingent Interest as set forth in
the Indenture and in Section 3 hereof. The Company
shall also pay Liquidated Damages as set forth in
Section 4.07 of the Indenture and the Registration
Rights Agreement.
Interest will be payable semi-annually on each
Interest Payment Date to Holders at the close of
business on the preceding Interest Record Date.
Interest will be computed on the basis of a 360-day
year comprised of twelve 30 day months.
The Company will pay Interest to a person other
than the Securityholder of record on the Interest
Record Date if the Company elects to redeem or
Securityholders elect to require the Company to
repurchase, the Securities on a date that is after an
Interest Record Date but on or prior to the
corresponding Interest Payment Date. In that instance,
the Company will pay accrued and unpaid Interest on the
Securities being redeemed to, but not including, the
Redemption Date, the Purchase Date or the Designated
Event Purchase Date, as the case may be, to the same
person to whom it will pay the principal of those
Securities.
If the principal amount of any Security, or any
accrued and unpaid Interest, Contingent Interest, if
any, or Liquidated Damages, if any, are not paid when
due (whether upon acceleration pursuant to Section 6.02
of the Indenture, upon the date set for payment of the
Redemption Price pursuant to Section 5 hereof, upon the
date set for payment of the Repurchase Price or
Designated Event Purchase Price pursuant to Section 6
hereof, upon the Stated Maturity of the Securities,
upon the Interest Payment Dates or upon the Liquidated
Damages Payment Dates as defined in the Registration
Rights Agreement), then in each such case the overdue
amount shall, to the extent permitted by law, bear cash
interest at the rate of 2% per annum, compounded
semiannually, which interest shall accrue from the date
such overdue amount was originally due to the date
payment of such amount, including interest thereon, has
been made or duly provided for. All such interest
shall be payable in cash on demand but if not so
demanded shall be paid quarterly to the Holders on the
last day of each quarter.
2. Method of Payment.
Except as provided below, the Company shall pay
Interest on (i) Global Securities, to DTC in
immediately available funds, (ii) any Certificated
Security having an aggregate principal amount of
$5,000,000 or less, by check mailed to the Holder of
such Security and (iii) any Certificated Security
having an aggregate principal amount of more than
$5,000,000, by wire transfer in immediately available
funds or by mail at the election of the Holder of any
such Security.
At Stated Maturity, the Company will pay Interest
on Certificated Securities at the Company's office or
agency in New York City.
Subject to the terms and conditions of the
Indenture, the Company will make payments in cash in
respect of Redemption Prices, Repurchase Prices,
Designated Event Purchase Prices and at Stated Maturity
to Holders who surrender Securities to a Paying Agent
to collect such payments in respect of the Securities.
The Company will pay cash amounts in money of the
United States that at the time of payment is legal
tender for payment of public and private debts.
However, the Company may make such cash payments by
check payable in such money.
3. Contingent Interest
The Company shall pay Contingent Interest under
the circumstances and in the amounts described in
Article 11 of the Indenture. Such Contingent Interest,
if any, shall be payable in the same manner, at the
same time, and subject to the same restrictions,
including those restrictions in respect of accrued and
unpaid interest on any Securities that are submitted
for conversion, as payments of Interest.
4. Indenture.
The Securities are general unsecured obligations
of the Company limited to $175,000,000 aggregate
principal amount. The Indenture does not limit other
indebtedness of the Company, secured or unsecured.
5. Redemption at the Option of the Company.
No sinking fund is provided for the Securities.
The Securities are redeemable for cash at the option of
the Company, in whole or in part, at any time or from
time to time on or after April 20, 2009 upon not less
than 30 nor more than 60 days' notice by mail for a
redemption price equal to the principal amount of those
Securities plus accrued and unpaid Interest, accrued
and unpaid Contingent Interest, if any, and Liquidated
Damages, if any, on those Securities up to (but
excluding) the Redemption Date (the "Redemption
Price").
In no event will any Security be redeemable before
April 20, 2009.
6. 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 the Holder, all or any
portion of the Securities held by such Holder on April
15, 2009, April 15, 2014, April 15, 2019, April 15,
2024 and April 15, 2029 in integral multiples of $1,000
at a Repurchase Price equal to the principal amount of
those Securities plus accrued and unpaid Interest,
accrued and unpaid Contingent Interest, if any, and
Liquidated Damages, if any, on those Securities up to
(but excluding) the Purchase Date. To exercise such
right, a Holder shall deliver to the Paying Agent a
Purchase Notice containing the information set forth in
the Indenture, at any time from the opening of business
on the date that is 20 Business Days prior to such
Purchase Date until the close of business on such
Purchase Date, and shall deliver the Securities to the
Paying Agent as set forth in the Indenture.
At the option of the Holder and subject to the
terms and conditions of the Indenture, the Company
shall become obligated to purchase the Securities held
by such Holder after the occurrence of a Designated
Event for a Designated Event Purchase Price equal to
the principal amount of those Securities plus accrued
and unpaid Interest, accrued and unpaid Contingent
Interest, if any, and Liquidated Damages, if any, on
those Securities up to (but excluding) the Designated
Event Purchase Date.
Holders have the right to withdraw any Purchase
Notice or Designated Event Purchase Notice, as the case
may be, by delivering to the Paying Agent a written
notice of withdrawal in accordance with the provisions
of the Indenture.
If cash sufficient to pay the Repurchase Price or
Designated Event Purchase Price, as the case may be, of
all Securities or portions thereof to be purchased as
of the Purchase Date or the Designated Event Purchase
Date, as the case may be, is deposited with the Paying
Agent, on the Business Day immediately following the
Purchase Date or the Designated Event Purchase Date,
Interest, accrued and unpaid Contingent Interest, if
any, and Liquidated Damages, if any, will cease to
accrue on such Securities (or portions thereof) on and
following such Purchase Date or Designated Event
Purchase Date, and the Holder thereof shall have no
other rights as such other than the right to receive
the Repurchase Price or Designated Event Purchase Price
upon surrender of such Security.
7. Notice of Redemption.
Notice of redemption pursuant to Section 5 of this
Security will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder
of Securities to be redeemed at the Holder's registered
address. If money sufficient to pay the Redemption
Price of all Securities (or portions thereof) to be
redeemed on the Redemption Date is deposited with the
Paying Agent prior to or on the Redemption Date, on and
immediately after such Redemption Date Interest,
Contingent Interest, if any, and Liquidated Damages, if
any, will cease to accrue on such Securities or
portions thereof. Securities in denominations larger
than $1,000 principal amount may be redeemed in part
but only in integral multiples of $1,000 of principal
amount.
8. Conversion.
Subject to and in compliance with the provisions
of the Indenture (including, without limitation, the
conditions to conversion of this Security set forth in
Section 10.01 thereof), a Holder is entitled, at such
Holder's option, to convert the Holder's Security (or
any portion of the principal amount thereof that is
$1,000 or an integral multiple $1,000), into fully paid
and nonassessable shares of Common Stock at the
Conversion Rate in effect at the time of conversion
provided, however, the Company may satisfy its
obligation with respect to any demand for conversion by
delivering Common Stock, cash or a combination of cash
and Common Stock.
The Company will notify Holders of any event
triggering the right to convert the Securities as
specified above in accordance with the Indenture.
A Security in respect of which a Holder has
delivered a Purchase Notice or Designated Event
Purchase Notice, as the case may be, exercising the
option of such Holder to require the Company to
purchase such Security may be converted only if such
Purchase Notice or Designated Event Purchase Notice, as
the case may be, is withdrawn in accordance with the
terms of the Indenture.
The initial Conversion Rate is 22.6778 shares of
Common Stock per $1,000 principal amount, subject to
adjustment in certain events described in the
Indenture. The Conversion Rate shall not be adjusted
for any accrued and unpaid Interest and accrued and
unpaid Contingent Interest or Liquidated Damages. Upon
conversion, no payment shall be made by the Company
with respect to accrued and unpaid Interest and accrued
and unpaid Contingent Interest, if any. Instead, such
amount shall be deemed paid by the shares of Common
Stock delivered upon conversion of any Security. A
Holder shall receive, however, accrued and unpaid
Liquidated Damages, if any. In addition, no payment or
adjustment shall be made in respect of dividends on the
Common Stock, except as set forth in the Indenture.
To surrender a Security for conversion, a Holder
must (1) complete and manually sign the Notice of
Conversion attached hereto (or complete and manually
sign a facsimile of such notice) and deliver such
notice to the Conversion Agent, (2) surrender the
Security to the Conversion Agent, (3) furnish
appropriate endorsements and transfer documents, (4) if
required by Section 10.02(g) of the Indenture, pay
Interest and Contingent Interest and (5) pay any
transfer or similar tax, if required.
No fractional shares of Common Stock shall be
issued upon conversion of any Security. Instead of any
fractional share of Common Stock that would otherwise
be issued upon conversion of such Security, the Company
shall pay a cash adjustment as provided in the
Indenture.
If the Company (i) is a party to a consolidation,
merger, statutory share exchange or combination, (ii)
reclassifies the Common Stock, or (iii) conveys,
transfers or leases its properties and assets
substantially as an entirety to any Person, the right
to convert a Security into shares of Common Stock may
be changed into a right to convert it into securities,
cash or other assets of the Company or such other
Person, in each case in accordance with the Indenture.
9. Conversion Arrangement on Call for Redemption.
Any Securities called for redemption, unless
surrendered for conversion before the close of business
on Redemption Date, may be deemed to be purchased from
the Holders of such Securities at an amount not less
than the Redemption Price, by one or more investment
bankers or other purchasers who may agree with the
Company to purchase such Securities from the Holders,
to convert them into shares of Common Stock and to make
payment for such Securities to the Trustee in trust for
such Holders.
10. Paying Agent, Conversion Agent and Registrar.
Initially, the Trustee will act as Paying Agent,
Conversion Agent and Registrar. The Company may appoint
and change any Paying Agent, Conversion Agent or
Registrar without notice, other than notice to the
Trustee; provided that the Company will maintain at
least one Paying Agent in the State of New York, City
of New York, Borough of Manhattan, which shall
initially be an office or agency of the Trustee. The
Company or any of its Subsidiaries or any of their
Affiliates may act as Paying Agent, Conversion Agent or
Registrar.
11. Denominations; Transfer; Exchange.
The Securities are in fully registered form,
without coupons, in denominations of $1,000 of
principal amount and integral multiples of $1,000. A
Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to
pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not transfer or
exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in
part, the portion of the Security not to be redeemed)
or any Securities in respect of which a Purchase Notice
or Designated Event Purchase Notice has been given and
not withdrawn (except, in the case of a Security to be
purchased in part, the portion of the Security not to
be purchased) or any Securities for a period of 15 days
before the mailing of a notice of redemption of
Securities to be redeemed.
12. Persons Deemed Owners.
The registered Holder of this Security may be
treated as the owner of this Security for all purposes.
13. Unclaimed Money or Securities.
The Trustee and the Paying Agent shall return to
the Company upon written request any money or
securities held by them for the payment of any amount
with respect to the Securities that remains unclaimed
for two years, subject to applicable unclaimed property
law. After return to the Company, Holders entitled to
the money or securities must look to the Company for
payment as general creditors unless an applicable
abandoned property law designates another person.
14. Amendment; Waiver.
Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Securities may be
amended with the written consent of the Holders of at
least a majority in aggregate principal amount of the
outstanding Securities and (ii) certain Events of
Defaults may be waived with the written consent of the
Holders of a majority in aggregate principal amount of
the outstanding Securities. Subject to certain
exceptions set forth in the Indenture, without the
consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities (i)
to add to the covenants of the Company for the benefit
of the Holders of Securities, (ii) to surrender any
right or power conferred upon the Company in the
Indenture, (iii) to provide for conversion rights of
Holders of Securities if any reclassification or change
of the Company's Common Stock or any consolidation,
merger or sale of the Company's assets substantially as
an entirety occurs, (iv) to provide for the assumption
of the Company's obligations to the Holders of
Securities in the case of a merger, consolidation,
conveyance, transfer or lease pursuant to Article 5 of
the Indenture, (v) to increase the Conversion Rate;
provided, however, that such increase in the Conversion
Rate shall not adversely affect the interest of the
Holders of Securities (after taking into account tax
and other consequences of such increase), (vi) to
establish the form of Securities if issued in
definitive form, (vii) to evidence and provide for the
acceptance of the appointment under the Indenture of a
successor Trustee, (viii) to comply with the
requirements of the SEC in order to effect or maintain
the qualification of the Indenture under the TIA or in
connection with the registration of the Securities as
contemplated by the Registration Rights Agreement, (ix)
to cure any ambiguity or to correct or supplement any
provision in the Indenture which may be inconsistent
with any other provision in the Indenture or which is
otherwise defective, (x) add or modify any other
provisions of the Indenture with respect to matters or
questions arising under the Indenture which the Company
and the Trustee may deem necessary or desirable and
which will not adversely affect the interests of the
Holders of Securities; provided that any addition or
modification made solely to conform the provisions of
this Indenture to the "Description of Debentures" in
the Offering Memorandum relating to the Securities will
not be deemed to adversely affect the interests of the
holders of the Securities.
15. Defaults and Remedies.
If any Event of Default with respect to Securities
shall occur and be continuing, the principal amount of
the Securities and any accrued and unpaid Interest,
accrued and unpaid Contingent Interest, if any, and
accrued and unpaid Liquidated Damages, if any, on all
the Securities may be declared due and payable in the
manner and with the effect provided in the Indenture.
16. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA,
the Trustee under the Indenture, in its individual or
any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates
and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it
were not Trustee.
17. Calculations in Respect of Securities.
The Company or its agents will be responsible for
making all calculations called for under the Securities
including, but not limited to, determination of the
market prices for the Securities and of the Common
Stock and the amounts of Contingent Interest and
Liquidated Damages, if any, accrued on the Securities.
Any calculations made in good faith and without
manifest error will be final and binding on Holders of
the Securities. The Company or its agents will be
required to deliver to the Trustee a schedule of its
calculations and the Trustee will be entitled to
conclusively rely upon the accuracy of such
calculations without independent verification.
18. United States Federal Income Tax Treatment.
For purposes of Sections 1272, 1273 and 1275 of
the Internal Revenue Code of 1986, as amended, this
Security is being issued with Tax Original Issue
Discount and the issue date of this Security is April
12 2004. In addition, this Security is subject to the
United States federal income tax regulations governing
contingent payment debt instruments. For purposes of
Sections 1272, 1273 and 1275 of the Internal Revenue
Code, the comparable yield of this Security is 7.375%,
compounded semi-annually (which will be treated as the
yield to maturity for United States federal income tax
purposes).
The Company agrees, and by accepting a beneficial
ownership interest in this Security each Holder and any
beneficial owner of this Security will be deemed to
have agreed, for United States federal income tax
purposes (1) to treat this Security as a debt
instrument that is subject to Treas. Reg. Sec. 1.1275-
4, or any successor provision (the "contingent payment
regulations"), and (2) to be bound by the Company's
determination of the "comparable yield" and "projected
payment schedule," within the meaning of the contingent
payment regulations. The Company agrees to provide
promptly to the Holder of this security, upon written
request, the issue price, amount of Tax Original Issue
Discount, issue date, yield to maturity, comparable
yield and projected payment schedule. Any such written
request should be sent to the Company at the following
address: Financial Federal Corporation, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Investor
Relations.
19. [Reserved].
20. No Recourse Against Others.
A director, officer, employee or shareholder, as
such, of the Company shall not have any liability for
any obligations of the Company under the Securities or
the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By
accepting a Security, each Securityholder waives and
releases all such liability. The waiver and release are
part of the consideration for the issue of the
Securities.
21. Authentication.
This Security shall not be valid until an
authorize signatory of the Trustee manually signs the
Trustee's Certificate of Authentication on the other
side of this Security.
22. Abbreviations.
Customary abbreviations may be used in the name of
a Securityholder or an assignee, such as TEN COM
(=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of
survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
23. GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE
INDENTURE AND THIS SECURITY.
24. Copy of Indenture.
The Company will furnish to any Securityholder
upon written request and without charge a copy of the
Indenture which has in it the text of this Security in
larger type. Requests may be made to:
Financial Federal Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Xxxxxxxxx No.: 000-000-0000
25. Registration Rights.
The Holders of the Securities are entitled to the
benefits of a Registration Rights Agreement, dated
April 12, 2004, between the Company and Banc of America
Securities LLC and X.X. Xxxxxx Securities Inc., as
representatives of the several initial purchasers,
including the receipt of Liquidated Damages upon a
Registration Default (as defined in such agreement).
The Company shall make payments of Liquidated Damages
on the Liquidated Damages Payment Dates (as defined in
the Registration Rights Agreement), but otherwise in
accordance with the provisions set forth herein for the
payment of Interest.
ASSIGNMENT FORM CONVERSION NOTICE
To assign this Security, To convert this Security
fill in the form below: into Common Stock of the
Company, check the box [
]
I or we assign and To convert only part of
transfer this Security to this Security, state the
_________________________ principal amount to be
_________________________ converted (which must be
(Insert assignee's soc. $1,000 or an integral
sec. or tax ID no.) multiple of $1,000):
_________________________
____ If you want the stock
_________________________ certificate made out in
____ another person's name
_________________________ fill in the form below:
____ ________________________
(Print or type assignee's ________________________
name, address and zip __________
code) (Insert the other
person's soc. sec. tax
and irrevocably appoint ID no.)
________________________
____________________ ________________________
agent to transfer this ________________________
Security on the books of ________________________
the Company. The agent ________________________
may substitute another to ________________________
act for him. (Print or type other
person's name, address
and zip code)
Date: __________ Your Signature:
_________________________________
_______________________________________________________
_______
(Sign exactly as your name appears on the other side
of this Security)
Signature Guaranteed
________________________________
Participant in a Recognized Signature
Guarantee Medallion Program
By:_____________________________
Authorized Signatory
SCHEDULE OF INCREASES AND DECREASES
OF GLOBAL SECURITY
Initial Principal Amount of Global Security: One
Hundred Seventy-Five Million dollars ($175,000,000).
Date Amount of Amount of Principal Notation
Increase Decrease Amount of by
in in Global Registrar
Principal Principal Security or
Amount of Amount of After Security
Global Global Increase Custodian
Security Security or
Decrease
EXHIBIT B
[FORM OF FACE OF CERTIFICATED SECURITY]
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT OF 1933"), OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT
AS SET FORTH IN THE FOLLOWING SENTENCE, BY ACQUISITION
HEREOF, THE HOLDER:
(1) REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT OF 1933;
(2) AGREES THAT IT WILL NOT, PRIOR TO THE DATE
(THE "RESALE RESTRICTION TERMINATION DATE") THAT
IS TWO YEARS AFTER THE LATER OF THE LAST DAY OF
THE ORIGINAL ISSUE DATE OF THE 2.0% CONVERTIBLE
SENIOR DEBENTURES AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), RESELL OR OTHERWISE TRANSFER THE
SECURITY EVIDENCED HEREBY OR THE COMMON STOCK
ISSUABLE UPON CONVERSION OF SUCH SECURITY EXCEPT
(A) TO FINANCIAL FEDERAL CORPORATION OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT OF 1933, (C) PURSUANT TO
ANY OTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933,
INCLUDING RULE 144 UNDER THE SECURITIES ACT OF
1933 (IF AVAILABLE), OR (D) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND
WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF
SUCH TRANSFER; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED
(OTHER THAN A TRANSFER PURSUANT TO RULE 144 OR
CLAUSE 2(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
The foregoing legend may be removed from this
Security upon the earlier of the Resale Restriction
Termination Date or the transfer of the Securities
pursuant to Rule 144 or clause 2(D) above.
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS
SECURITY IS BEING ISSUED WITH TAX ORIGINAL ISSUE
DISCOUNT AND THE ISSUE DATE OF THIS SECURITY IS APRIL
12, 2004. IN ADDITION, THIS SECURITY IS SUBJECT TO THE
UNITED STATES FEDERAL INCOME TAX REGULATIONS GOVERNING
CONTINGENT PAYMENT DEBT INSTRUMENTS. FOR PURPOSES OF
SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE
CODE, THE COMPARABLE YIELD OF THIS SECURITY IS 7.375%,
COMPOUNDED SEMI-ANNUALLY (WHICH WILL BE TREATED AS THE
YIELD TO MATURITY FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES).
THE COMPANY AGREES, AND BY ACCEPTING A BENEFICIAL
OWNERSHIP INTEREST IN THIS SECURITY EACH HOLDER AND ANY
BENEFICIAL OWNER OF THIS SECURITY WILL BE DEEMED TO
HAVE AGREED, FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES (1) TO TREAT THIS SECURITY AS A DEBT
INSTRUMENT THAT IS SUBJECT TO TREAS. REG. SEC. 1.1275-
4, OR ANY SUCCESSOR PROVISION (THE "CONTINGENT PAYMENT
REGULATIONS"), AND (2) TO BE BOUND BY THE COMPANY'S
DETERMINATION OF THE "COMPARABLE YIELD" AND "PROJECTED
PAYMENT SCHEDULE," WITHIN THE MEANING OF THE CONTINGENT
PAYMENT REGULATIONS. THE COMPANY AGREES TO PROVIDE
PROMPTLY TO THE HOLDER OF THIS SECURITY, UPON WRITTEN
REQUEST, THE ISSUE PRICE, AMOUNT OF TAX ORIGINAL ISSUE
DISCOUNT, ISSUE DATE, YIELD TO MATURITY, COMPARABLE
YIELD AND PROJECTED PAYMENT SCHEDULE. ANY SUCH WRITTEN
REQUEST SHOULD BE SENT TO THE COMPANY AT THE FOLLOWING
ADDRESS: FINANCIAL FEDERAL CORPORATION, 000 XXXXX
XXXXXX, XXX XXXX, XXX XXXX 00000., XXXXXXXXX:
XXXXXXXXX.
Pursuant to Section 2.14 of the Indenture, the
foregoing legend is required for United States federal
income tax purposes.
FINANCIAL FEDERAL CORPORATION.
2% Convertible Senior Debentures Due 2034
REGISTERED
CUSIP: 317492 AE 6
ISSUE DATE: April 12, 2004 Principal Amount: [
]
No. R-1
FINANCIAL FEDERAL CORPORATION, a Nevada
corporation, promises to pay to __________ or
registered assigns, the principal amount of
_____________________, on April 15, 2034.
Interest Rate: 2% per year.
Interest Payment Dates: April 15 and October 15 of
each year, commencing October 15, 2004.
Interest Record Date: April 1 and October 1 of
each year.
Reference is hereby made to the further provisions
of this Security set forth on the reverse side of this
Security, which further provisions shall for all
purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate
seal.
Dated: [____] FINANCIAL FEDERAL
CORPORATION.
By:
_________________________
Title:
_________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
____________________________,
Deutche Bank Trust Company Americas,
as Trustee, certifies that this is one
of the Securities referred to in the
within-mentioned Indenture.
By__________________________________
Authorized Signatory
Dated: [__], 2004
[FORM OF REVERSE OF CERTIFICATED SECURITY IS IDENTICAL TO EXHIBIT A]
EXHIBIT C
FINANCIAL FEDERAL CORPORATION
2% Convertible Senior Debentures Due 2034
Transfer Certificate
In connection with any transfer of any of the
Securities within the period prior to the expiration of
the holding period applicable to the sales thereof
under Rule 144(k) under the Securities Act of 1933, as
amended (the "Securities Act") (or any successor
provision), the undersigned registered owner of this
Security hereby certifies with respect to $____________
principal amount of the above-captioned Securities
presented or surrendered on the date hereof (the
"Surrendered Securities") for registration of transfer,
or for exchange or conversion where the securities
issuable upon such exchange or conversion are to be
registered in a name other than that of the undersigned
registered owner (each such transaction being a
"transfer"), that such transfer complies with the
restrictive legend set forth on the face of the
Surrendered Securities for the reason checked below:
[_] A transfer of the Surrendered Securities
is made to the Company or any subsidiaries;
or
[_] The transfer of the Surrendered Securities is
pursuant to an effective registration
statement under the Securities Act; or
[_] The transfer of the Surrendered
Securities complies with Rule 144A under the
Securities Act; or
[_] The transfer of the Surrendered Securities is
pursuant to Rule 144 under the Securities Act
and each of the conditions set forth in such
rule have been met;
and unless the box below is checked, the undersigned
confirms that, to the undersigned's knowledge, such
Securities are not being transferred to an "affiliate"
of the Company as defined in Rule 144 under the
Securities Act (an "Affiliate").
[_] The transferee is an Affiliate of the
Company.
DATE: __________________________________
Signature(s)
(If the registered owner is a corporation,
partnership or fiduciary, the title of the person
signing on behalf of such registered owner must be
stated.)
Signature Guaranteed
________________________________
Participant in a Recognized Signature
EXHIBIT D
FINANCIAL FEDERAL CORPORATION
NOTICE OF REDEMPTION
[DATE]
To the Holders of the 2.0% Convertible Senior
Debentures Due 2034
issued by Financial Federal Corporation:
Financial Federal Corporation (the "Issuer") by
this written notice hereby exercises, pursuant to
Section 3.01 of that certain Indenture (the
"Indenture"), dated as of April 12, 2004, between the
Issuer and Deutsche Bank Trust Company Americas, its
right to redeem $[_________] of its 2% Convertible
Senior Debentures Due 2034 (the "Securities"). All
capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms
in the Indenture.
1. Redemption Date: [_______ _, ____]
2. Redemption Price: $[______]
3. Conversion Rate: Each $1,000 principal amount
of the Securities is convertible at your option into
[insert number of shares] shares of the Issuer's common
stock, par value $.50 per share (the "Common Stock"),
subject to adjustment.
4. Paying Agent and Conversion Agent: [NAME]
[ADDRESS]
5. The Securities called for redemption may be
converted at your option at any time from the date of
this Notice of Redemption until 5:00 p.m. on the
Redemption Date set forth above.
6. The Securities called for redemption and not
converted at your election prior to 5:00 p.m. on the
Redemption Date set forth above shall be redeemed on
the business day immediately following such Redemption
Date.
7. If you elect to convert your Securities, you must
satisfy the requirements for conversion set forth in
your Securities.
8. Your Securities called for redemption must be
surrendered by you to [Name of Paying Agent] at [insert
address] in order for you to collect the Redemption
Price.
9. [The Securities bearing the following Certificate
Number(s) in the principal amount set forth below
opposite such Certificate Number(s) are being redeemed:
Certificate Number(s) Principal Amount]
10. Unless the Company defaults in making the payment
of the Redemption Price owed to you, Interest,
Contingent Interest, if any, and Liquidated Damages, if
any, on your Securities called for redemption will
cease to accrue on and after the Redemption Date.
11. Cusip Number: 317492 AE 6.
FINANCIAL FEDERAL CORPORATION
EXHIBIT E
FINANCIAL FEDERAL CORPORATION
NOTICE OF REPURCHASE
[DATE]
To the Beneficial Owners of the 2.0% Convertible Senior
Debentures Due 2034
(the "Securities") issued by Financial Federal
Corporation:
Financial Federal Corporation (the "Issuer") by
this written notice hereby notifies you, pursuant to
Section 3.07 of that certain Indenture (the
"Indenture"), dated as of April 12, 2004, between the
Issuer and Deutsche Bank Trust Company Americas, that
you may request the Issuer to repurchase your
Securities by delivery of a Repurchase Notice. Included
herewith is the form of Repurchase Notice to be
completed by you if you wish to have your Securities
repurchased by the Issuer. All capitalized terms used
herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Indenture.
1. Repurchase Date: [ ]
2. Repurchase Price: [ ]
3. Conversion Rate: Each $1,000 principal amount
of the Securities is convertible into [insert number of
shares] shares of the Issuer's common stock, par value
$.50 per share (the "Common Stock"), subject to
adjustment.
4. Paying Agent and Conversion Agent: [NAME]
[ADDRESS]
5. The Securities as to which you have delivered a
Repurchase Notice to the Paying Agent may be converted
if they are otherwise convertible pursuant to Article
10 of the Indenture and the terms of the Securities
only if you withdraw such Repurchase Notice pursuant to
the terms of the Indenture. You may be entitled to
have your Securities converted into shares of the
Issuer's common stock (or, at the option of the Issuer,
cash or a combination of cash and shares of the
Issuer's common stock):
(i) if, during the immediately preceding fiscal
quarter, the sale price of the Issuer's common
stock for at least 20 trading days in the 30
trading-day period ending on the last trading day
of such preceding fiscal quarter exceeds 130% of
the conversion price (as defined in the Indenture)
on that 30th trading day;
(ii) if at any time the credit rating assigned to
the Securities by Fitch Ratings, Inc. ("Fitch") is
at or below BB (but this clause (ii) shall not
apply if Fitch has withdrawn its rating on the
Securities, is no longer rating the Securities or
ceases to exist);
(iii) if the Issuer has called the Securities for
redemption; or
(iv) upon the occurrence of certain specified
corporate transactions described in the Indenture.
6. The Securities as to which you have delivered a
Repurchase Notice must be surrendered by you to [Name
of Paying Agent] at [insert address] in order for you
to collect the Repurchase Price.
7. The Repurchase Price for the Securities as to
which you have delivered a Repurchase Notice and not
withdrawn such Notice shall be paid on the later of the
business day immediately following such Repurchase Date
and the date you deliver such Securities to [Name of
Paying Agent].
8. In order to exercise your option to have the
Issuer repurchase your Securities, you must deliver the
Repurchase Notice, duly completed by you with the
information required by such Repurchase Notice (as
specified in Section 3.07 of the Indenture) and deliver
such Repurchase Notice to the Paying Agent at any time
from 9:00 a.m. on [insert day that is 20 Business Days
prior to Repurchase Date] until 5:00 p.m. on the
Repurchase Date.
9. In order to withdraw any Repurchase Notice
previously delivered by you to the Paying Agent, you
must deliver to the Paying Agent, by 5:00 p.m. on the
Repurchase Date, a written notice of withdrawal
specifying (i) the certificate number, if any, of the
Securities in respect of which such notice of
withdrawal is being submitted, (ii) the principal
amount of the Securities in respect of which such
notice of withdrawal is being submitted, and (iii) if
you are not withdrawing your Repurchase Notice for all
of your Securities, the principal amount of the
Securities which still remain subject to the original
Repurchase Notice.
10. Unless the Issuer defaults in making the payment
of the Repurchase Price owed to you, Interest,
Contingent Interest, if any, and Liquidated Damages, if
any, on your Securities as to which you have delivered
a Repurchase Notice will cease to accrue on and after
the Repurchase Date.
11. Cusip Number: 317492 AE 6.
FINANCIAL FEDERAL CORPORATION
EXHIBIT F
FINANCIAL FEDERAL CORPORATION
NOTICE OF OCCURRENCE
OF DESIGNATED EVENT
[DATE]
To the Holders of the 2.0% Convertible Senior
Debentures Due 2034
(the "Securities") issued by Financial Federal
Corporation:
Financial Federal Corporation (the "Issuer") by
this written notice hereby notifies you, pursuant to
Section 3.08 of that certain Indenture (the
"Indenture"), dated as of April 12, 2004, between the
Issuer and Deutsche Bank Trust Company Americas, that a
Designated Event (as such term and other capitalized
terms used herein and not otherwise defined herein is
defined in the Indenture) as described below has
occurred. Included herewith is the form of Designated
Event Repurchase Notice to be completed by you if you
wish to have your Securities repurchased by the Issuer.
1. Designated Event: [Insert brief description of
the Change of Control or Termination of Trading and the
date of the occurrence thereof].
2. Date by which Designated Event Repurchase Notice
must be delivered by you to Paying Agent in order to
have your Securities repurchased:
3. Designated Event Repurchase Date:
4. Designated Event Repurchase Price:
5. Paying Agent and Conversion Agent: [NAME]
[ADDRESS]
6. Conversion Rate: Each $1,000 principal amount
of the Securities is convertible into [insert number of
shares] shares of the Issuer's common stock, par value
$.50 per share (the "Common Stock"), subject to
adjustment.
7. The Securities as to which you have delivered a
Designated Event Repurchase Notice to the Paying Agent
may be converted if they are otherwise convertible
pursuant to Article 10 of the Indenture and the terms
of the Securities only if you withdraw such Designated
Event Repurchase Notice pursuant to the terms of the
Indenture. You may be entitled to have your Securities
converted into shares of the Issuer's common stock (or,
at the option of the Issuer, cash or a combination of
cash and shares of the Issuer's common stock):
(i) if, during the immediately preceding fiscal
quarter [(which must be a fiscal quarter
commencing after July 31, 2004)], the sale price
of the Issuer's common stock for at least 20
trading days in the 30 trading-day period ending
on the last trading day of such preceding fiscal
quarter exceeds 130% of the conversion price (as
defined in the Indenture) on that 30th trading
day;
(ii) if at any time the credit rating assigned to
the Securities by Fitch Ratings, Inc. ("Fitch") is
at or below BB (but this clause (ii) shall not
apply if Fitch has withdrawn its rating on the
Securities, is no longer rating the Securities or
ceases to exist);
(iii) if the Issuer has called the Securities for
redemption; or
(iv) upon the occurrence of certain specified
corporate transactions described in the Indenture.
8. The Securities as to which you have delivered a
Designated Event Repurchase Notice must be surrendered
by you to [Name of Paying Agent] at [insert address] in
order for you to collect the Designated Event
Repurchase Price.
9. The Designated Event Repurchase Price for the
Securities as to which you have delivered a Designated
Event Repurchase Notice and not withdrawn such Notice
shall be paid on the later of the business day
immediately following such Designated Event Repurchase
Date and the date you deliver such Securities to [Name
of Paying Agent].
10. In order to have the Issuer repurchase your
Securities, you must deliver the Designated Event
Repurchase Notice, duly completed by you with the
information required by such Designated Event
Repurchase Notice (as specified in Section 3.08 of the
Indenture) and deliver such Designated Event Repurchase
Notice to the Paying Agent at any time from 9:00 a.m.
on the date of the occurrence of the Designated Event
until 5:00 p.m. on the Designated Event Repurchase
Date.
11. In order to withdraw any Designated Event
Repurchase Notice previously delivered by you to the
Paying Agent, you must deliver to the Paying Agent, by
5:00 p.m. on the Designated Event Repurchase Date, a
written notice of withdrawal specifying (i) the
certificate number, if any, of the Securities in
respect of which such notice of withdrawal is being
submitted, (ii) the principal amount of the Securities
in respect of which such notice of withdrawal is being
submitted, and (iii) if you are not withdrawing your
Designated Event Repurchase Notice for all of your
Securities, the principal amount of the Securities
which still remain subject to the original Designated
Event Repurchase Notice.
12. Unless the Issuer defaults in making the payment
of the Designated Event Repurchase Price owed to you,
Interest, Contingent Interest, if any, and Liquidated
Damages, if any, on your Securities as to which you
have delivered a Designated Event Repurchase Notice
will cease to accrue on and after the Designated Event
Repurchase Date.
13. Cusip Number: 317492 AE 6.
FINANCIAL FEDERAL CORPORATION
