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EXHIBIT 4.1
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CKE RESTAURANTS, INC.
TO
CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION
TRUSTEE
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INDENTURE
DATED AS OF MARCH 13, 1998
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4 1/4% CONVERTIBLE SUBORDINATED NOTES DUE 2004
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CKE RESTAURANTS, INC.
CROSS-REFERENCE SHEET
PURSUANT TO ITEM 601(B)(4)(IV) OF REGULATION S-K
SECTION OF THE
TRUST INDENTURE ACT OF 1939 INDENTURE LOCATION AND CAPTION
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310(a)...................................... Section 8.9 (Eligibility of Trustee)
310(b)...................................... Section 8.8 (Conflicting Interest of
Trustee); Section 8.10 (Resignation or
Removal of Trustee)
311(a) and (b).............................. Section 8.13 (Limitation on Rights of Trustee
as Creditor)
311(c)...................................... Not Applicable
312(a), (b) and (c)......................... Section 6.1 (Noteholders' Lists); Section 6.2
(Preservation and Disclosure of Lists)
3.13(a), (b), (c) and (d)................... Section 6.3 (Reports by Trustee)
3.14(a)..................................... Section 6.4 (Reports by Company)
3.14(b)..................................... Not Applicable
3.14(c)..................................... Section 5.10 (Compliance Certificate);
Section 8.2 (Reliance on
Documents, Opinions, Etc.);
Section 8.7 (Officers'
Certificate and Opinion of
Counsel as Evidence); Section
13.1 (Discharge of Indenture);
Section 16.5 (Evidence of
Compliance with Conditions
Precedent; Certificates)
3.14(d)..................................... Not Applicable
3.14(e)..................................... Section 16.6 (Statements Required in
Certificate or Opinion)
3.14(f)..................................... Section 8.7 (Officers' Certificate and
Opinion of Counsel as Evidence)
3.15(a)..................................... Section 8.1 (Duties and Responsibilities of
Trustee); Section 8.7 (Officers' Certificate
and Opinion of Counsel)
3.15(b)..................................... Section 7.8 (Notice of Defaults)
3.15(c) and (d)............................. Section 8.1 (Duties and Responsibilities of
Trustee)
3.15(e)..................................... Section 7.9 (Undertaking to Pay Costs)
3.16(a)..................................... Section 7.1 (Events of Default); Section 7.7
(Direction of Proceedings and Waiver of
Defaults by Majority of Noteholders)
3.16(b)..................................... Section 5.1 (Payment of Principal, Premium
and Interest); Section 7.7 (Direction of
Proceedings and Waiver of Defaults by
Majority of Noteholders)
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SECTION OF THE
TRUST INDENTURE ACT OF 1939 INDENTURE LOCATION AND CAPTION
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3.16(c)..................................... Section 9.1 (Action by Noteholders)
3.17(a)..................................... Section 7.2 (Payment of Notes on Default;
Suit Therefor); Section 7.5 (Proceedings by
Trustee)
317(b)...................................... Section 5.4 (Provisions as to Paying Agent);
Section 13.3 (Paying Agent to Repay Monies
Held)
318(a)...................................... Section 6.2 (Preservation and Disclosure of
Lists); Section 6.3 (Reports by Trustee);
Section 6.4 (Reports by Company); Section 8.1
(Duties and Responsibilities of Trustee);
Section 8.8 (Conflicting Interests of
Trustee); Section 8.9 (Eligibility of
Trustee); Section 8.13 (Limitations on Rights
of Trustee as Creditor)
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions.............................................................. 2
Affiliate.......................................... 2
Applicable Price................................... 2
Board of Directors................................. 2
Business Day....................................... 2
Closing Price...................................... 3
Commission......................................... 3
Common Stock....................................... 3
Company............................................ 3
Company Notice..................................... 3
Conversion Price................................... 3
Corporate Trust Office............................. 3
Credit Agreement................................... 3
Custodian.......................................... 4
default............................................ 4
Defaulted Interest................................. 4
Depositary......................................... 4
Designated Senior Indebtedness..................... 4
Event of Default................................... 5
Exchange Act....................................... 5
Fundamental Change................................. 5
Indebtedness....................................... 5
Indenture.......................................... 6
Initial Purchasers................................. 6
Liquidated Damages................................. 6
Note or Notes...................................... 6
Noteholder or holder.................................6
Officers' Certificate.............................. 6
Opinion of Counsel................................. 6
outstanding........................................ 6
Person............................................. 7
PORTAL Market...................................... 7
Predecessor Note................................... 7
QIB................................................ 7
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Reference Market Price............................. 7
Register........................................... 7
Registration Rights Agreement...................... 8
Regulation S....................................... 8
Representative..................................... 8
Responsible Officer................................ 8
Restricted Securities.............................. 8
Rule 144A.......................................... 8
Securities Act..................................... 8
Senior Indebtedness................................ 8
Subsidiary......................................... 9
Trading Day........................................ 9
Trigger Event........................................9
Trust Indenture Act................................ 9
Trustee............................................ 9
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION
AND EXCHANGE OF NOTES
Section 2.1 Designation Amount and Issue of Notes.................................... 10
Section 2.2 Form of Notes............................................................ 10
Section 2.3 Date and Denomination of Notes; Payments of Interest..................... 11
Section 2.4 Execution of Notes....................................................... 12
Section 2.5 Exchange and Registration of Transfer of Notes: Restrictions on
Transfer; Depositary..................................................... 13
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes............................... 21
Section 2.7 Temporary Notes.......................................................... 22
Section 2.8 Cancellation of Notes Paid, Etc.......................................... 22
ARTICLE III
REDEMPTION OF NOTES
Section 3.1 Redemption Prices........................................................ 22
Section 3.2 Notice of Redemption; Selection of Notes................................. 23
Section 3.3 Payment of Notes Called for Redemption................................... 24
Section 3.4 Conversion Arrangement on Call for Redemption............................ 25
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Section 3.5 Redemption at Option of Holders.......................................... 26
Section 3.6 Covenant to Comply with Securities Laws upon Purchase of Notes........... 28
Section 3.7 No Sinking Fund.......................................................... 28
ARTICLE IV
SUBORDINATION OF NOTES
Section 4.1 Agreement of Subordination............................................... 28
Section 4.2 Payments to Noteholders.................................................. 29
Section 4.3 Subrogation of Notes..................................................... 32
Section 4.4 Authorization by Noteholders............................................. 33
Section 4.5 Notice to Trustee........................................................ 33
Section 4.6 Trustee's Relation to Senior Indebtedness................................ 34
Section 4.7 No Impairment of Subordination........................................... 34
Section 4.8 Certain Conversions Deemed Payment....................................... 34
Section 4.9 Article Applicable to Paying Agents...................................... 35
Section 4.10 Senior Indebtedness Entitled to Rely..................................... 35
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
Section 5.1 Payment of Principal, Premium and Interest............................... 35
Section 5.2 Offices for Notices and Payments......................................... 36
Section 5.3 Appointments to Fill Vacancies in Trustee's Office....................... 36
Section 5.4 Provisions as to Paying Agent............................................ 37
Section 5.5 Corporate Existence...................................................... 38
Section 5.6 Maintenance of Properties................................................ 38
Section 5.7 Payment of Taxes and Other Claims........................................ 38
Section 5.8 Rule 144A Information Requirement........................................ 38
Section 5.9 Stay, Extension and Usury Laws........................................... 39
Section 5.10 Compliance Certificate................................................... 39
ARTICLE VI
NOTEHOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
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Section 6.1 Noteholders' Lists....................................................... 39
Section 6.2 Preservation and Disclosure of Lists..................................... 40
Section 6.3 Reports by Trustee....................................................... 40
Section 6.4 Reports by Company....................................................... 40
ARTICLE VII
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
IN THE EVENT OF DEFAULT
Section 7.1 Events of Default........................................................ 41
Section 7.2 Payment of Notes on Default; Suit Therefor............................... 43
Section 7.3 Application of Monies Collected by Trustee............................... 45
Section 7.4 Proceedings by Noteholder................................................ 46
Section 7.5 Proceedings by Trustee................................................... 47
Section 7.6 Remedies Cumulative and Continuing....................................... 47
Section 7.7 Direction of Proceedings and Waiver of Defaults by Majority of
Noteholders.............................................................. 47
Section 7.8 Notice of Defaults....................................................... 48
Section 7.9 Undertaking to Pay Costs................................................. 48
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.1 Duties and Responsibilities of Trustee................................... 48
Section 8.2 Reliance on Documents, Opinions, Etc..................................... 50
Section 8.3 No Responsibility for Recitals, Etc...................................... 51
Section 8.4 Trustee, Paying Agents, Conversion Agents or Registrar May Own
Notes.................................................................... 51
Section 8.5 Monies to Be Held in Trust............................................... 51
Section 8.6 Compensation and Expenses of Trustee..................................... 52
Section 8.7 Officers' Certificate and Opinion of Counsel as Evidence................. 52
Section 8.8 Conflicting Interests of Trustee......................................... 53
Section 8.9 Eligibility of Trustee................................................... 53
Section 8.10 Resignation or Removal of Trustee........................................ 53
Section 8.11 Acceptance by Successor Trustee.......................................... 54
Section 8.12 Succession by Merger, Etc................................................ 55
Section 8.13 Limitation on Rights of Trustee as Creditor.............................. 55
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ARTICLE IX
CONCERNING THE NOTEHOLDERS
Section 9.1 Action by Noteholders.................................................... 56
Section 9.2 Proof of Execution by Noteholders........................................ 56
Section 9.3 Who Are Deemed Absolute Owners........................................... 56
Section 9.4 Company-Owned Notes Disregarded.......................................... 57
Section 9.5 Revocation of Consents; Future Holders Bound............................. 57
ARTICLE X
NOTEHOLDERS' MEETINGS
Section 10.1 Purposes of Meetings..................................................... 58
Section 10.2 Call of Meetings by Trustee.............................................. 58
Section 10.3 Call of Meetings by Company or Noteholders............................... 58
Section 10.4 Qualifications for Voting................................................ 59
Section 10.5 Regulations.............................................................. 59
Section 10.6 Voting................................................................... 59
Section 10.7 No Delay of Rights by Meeting............................................ 60
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.1 Supplemental Indentures Without Consent of Noteholders................... 60
Section 11.2 Supplemental Indentures with Consent of Noteholders...................... 61
Section 11.3 Effect of Supplemental Indenture......................................... 62
Section 11.4 Notation on Notes........................................................ 63
Section 11.5 Evidence of Compliance of Supplemental Indenture to Be Furnished
Trustee.................................................................. 63
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ARTICLE XII
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 12.1 Company May Consolidate Etc. on Certain Terms............................ 63
Section 12.2 Successor Corporation to Be Substituted.................................. 64
Section 12.3 Opinion of Counsel to Be Given Trustee................................... 64
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.1 Discharge of Indenture................................................... 65
Section 13.2 Deposited Monies to Be Held in Trust by Trustee.......................... 65
Section 13.3 Paying Agent to Repay Monies Held........................................ 65
Section 13.4 Return of Unclaimed Monies............................................... 66
Section 13.5. Reinstatement............................................................ 66
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 14.1 Indenture and Notes Solely Corporate Obligations......................... 66
ARTICLE XV
CONVERSION OF NOTES
Section 15.1 Right to Convert......................................................... 67
Section 15.2 Exercise of Conversion Privilege; Issuance of Common Stock on
Conversion; No Adjustment for Interest or Dividends...................... 67
Section 15.3 Payments in Lieu of Fractional Shares.................................... 69
Section 15.4 Conversion Price......................................................... 69
Section 15.5 Adjustment of Conversion Price........................................... 69
Section 15.6 Effect of Reclassification, Consolidation, Merger or Sale................ 80
Section 15.7 Taxes on Shares Issued................................................... 81
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Section 15.8 Reservation of Shares; Shares to Be Fully Paid; Compliance with
Governmental Requirements; Listing of Common Stock....................... 81
Section 15.9 Responsibility of Trustee................................................ 82
Section 15.10 Notice to Holders Prior to Certain Actions............................... 83
ARTICLE XVI
MISCELLANEOUS PROVISIONS
Section 16.1 Provisions Binding on Company's Successors............................... 84
Section 16.2 Official Acts by Successor Corporation................................... 84
Section 16.3 Addresses for Notices, Etc............................................... 84
Section 16.4 Governing Law............................................................ 84
Section 16.5 Evidence of Compliance with Conditions Precedent; Certificates to
Trustee.................................................................. 84
Section 16.6 Statements Required in Certificate or Opinion............................ 84
Section 16.7 Legal Holidays........................................................... 85
Section 16.8 No Security Interest Created............................................. 85
Section 16.9 Benefits of Indenture.................................................... 85
Section 16.10 Table of Contents, Headings, Etc......................................... 85
Section 16.11 Authenticating Agent..................................................... 86
Section 16.12 Execution in Counterparts................................................ 87
EXHIBIT A -- Form of Note
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INDENTURE dated as of March 13, 1998, between CKE RESTAURANTS,
INC., a Delaware corporation (hereinafter sometimes called the "Company", as
more fully set forth in Section 1.1), and CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION, duly organized and existing under the laws of the
United States of America, as trustee hereunder (hereinafter sometimes called the
"Trustee", as more fully set forth in Section 1.1).
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issue of its 4 1/4% Convertible Subordinated Notes due 2004
(hereinafter sometimes called the "Notes"), in an aggregate principal amount not
to exceed $197,225,000 and, to provide the terms and conditions upon which the
Notes are to be authenticated, issued and delivered, the Company has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, the Notes, the certificate of authentication to be borne
by the Notes, a form of assignment, a form of option to elect repayment upon a
Fundamental Change (as defined herein), a form of conversion notice and a
certificate of transfer to be borne by the Notes are to be substantially in the
forms hereinafter provided for; and
WHEREAS, all acts and things necessary to make the Notes, when
executed by the Company and authenticated and delivered by the Trustee or a duly
authorized authenticating agent, as provided in this Indenture, the valid,
binding and legal obligations of the Company, and to constitute these presents a
valid agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Notes have in all
respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Notes are, and are to be, authenticated, issued and delivered, and in
consideration of the premises and of the purchase and acceptance of the Notes by
the holders thereof, the Company covenants and agrees with the Trustee for the
equal and proportionate benefit of the respective holders from time to time of
the Notes (except as otherwise provided below), as follows:
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions. The terms defined in this Section 1.1
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section 1.1. All
other terms used in this Indenture that are defined in the Trust Indenture Act
or which are by reference therein defined in the Securities Act (except as
herein otherwise expressly provided or unless the context otherwise requires)
shall have the meanings assigned to such terms in said Trust Indenture Act and
in said Securities Act as in force at the date of the execution of this
Indenture. The words "herein," "hereof," "hereunder," and words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other Subdivision. The terms defined in this Article include the
plural as well as the singular.
Affiliate: The term "Affiliate" of any specified Person shall
mean 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 Price: The term "Applicable Price" means (i) in the
event of a Fundamental Change in which the holders of the Common Stock
receive only cash, the amount of cash received by the holder of one
share of Common Stock and (ii) in the event of any other Fundamental
Change, the arithmetic average of the Closing Price for the Common Stock
(determined as set forth in Section 15.5(i)) during the ten Trading Days
immediately prior to (A) the record date for the determination of the
holders of Common Stock entitled to receive cash, securities, property
or other assets in connection with such Fundamental Change, or, (B) if
there is no such record date, the date upon which the holders of the
Common Stock shall have the right to receive cash, securities, property
or other assets in connection with the Fundamental Change.
Board of Directors: The term "Board of Directors" shall mean the
Board of Directors of the Company or a committee of such Board duly
authorized to act for it hereunder.
Business Day: The term "Business Day" means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking
institutions in
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The City of New York or the City of San Francisco are authorized or
obligated by law or executive order to close or be closed.
Closing Price: The term "Closing Price" shall have the meaning
specified in Section 15.5(i)(1).
Commission: The term "Commission" shall mean the Securities and
Exchange Commission.
Common Stock: The term "Common Stock" shall mean any stock of any
class of the Company which has no preference in respect of dividends or
of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and which is not
subject to redemption by the Company. Subject to the provisions of
Section 15.6, however, shares issuable on conversion of Notes shall
include only shares of the class designated as common stock of the
Company at the date of this Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and
which have no preference in respect of dividends or of amounts payable
in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which are not subject to redemption by the
Company; provided that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable shall be
substantially in the proportion to which the total number of shares of
such class resulting from all such reclassifications bears to the total
number of shares of all such classes resulting from all such
reclassifications.
Company: The term "Company" shall mean CKE Restaurants, Inc., a
Delaware corporation, and subject to the provisions of Article XII,
shall include its successors and assigns.
Company Notice: The term "Company Notice" shall have the meaning
specified in Section 3.5(b).
Conversion Price: The term "Conversion Price" shall have the
meaning specified in Section 15.4.
Corporate Trust Office: The term "Corporate Trust Office", or
other similar term, shall mean the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, which office is, at the date as of which this Indenture is
dated, located at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000.
Credit Agreement: The term "Credit Agreement" shall mean that
certain Credit Agreement dated as of July 15, 1997 among the Company,
the Lenders named therein and Banque Paribas, as agent, together with
all other agreements, instruments and
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documents executed or delivered pursuant thereto or in connection
therewith, in each case as such Credit Agreement, agreements,
instruments or documents (or such agents or lenders) has been prior to
the date hereof and hereafter may be amended, restated, supplemented,
extended, renewed, replaced, substituted or otherwise modified from time
to time, including, without limitation, replacement or substitution in
its entirety with one or more agreements, agents or syndicates of
financial institutions; provided, that with respect to any one or more
loan agreements providing for the refinancing of Indebtedness under the
Credit Agreement, such loan agreement or loan agreements shall be the
Credit Agreement under this Indenture only if a notice to that effect
has been delivered by the Company to the Trustee.
Custodian: The term "Custodian" shall mean Chase Manhattan Bank
and Trust Company, National Association, as custodian with respect to
the Notes in global form, or any successor entity thereto.
default: The term "default" shall mean any event that is, or
after notice or passage of time, or both, would be, an Event of Default.
Defaulted Interest: The term "Defaulted Interest" has the meaning
ascribed to it in Section 2.3.
Depositary: The term "Depositary" means, with respect to the
Notes issuable or issued in whole or in part in global form, the Person
specified in Section 2.5(d) as the Depositary with respect to the Notes,
until a successor shall have been appointed and become such pursuant to
the applicable provisions of this Indenture, and thereafter,
"Depositary" shall mean or include such successor.
Designated Senior Indebtedness: The term "Designated Senior
Indebtedness" shall mean Senior Indebtedness under the Credit Agreement
or any other particular Senior Indebtedness in which the instrument
creating or evidencing the same or the assumption or guarantee thereof
(or related agreements or documents to which the Company is a party)
expressly provides that such Senior Indebtedness shall be "Designated
Senior Indebtedness" for purposes of this Indenture (provided that such
instrument, agreement or other document may place limitations and
conditions on the right of such Senior Indebtedness to exercise the
rights of Designated Senior Indebtedness). If any payment made to any
holder of any Designated Senior Indebtedness or its Representative with
respect to such Designated Senior Indebtedness is rescinded or must
otherwise be returned by such holder or Representative upon the
insolvency, bankruptcy, reorganization, receivership, dissolution,
winding-up or liquidation of the Company or any similar proceeding, the
reinstated Indebtedness of the Company arising as a result of such
rescission or return shall constitute Designated Senior Indebtedness
effective as of the date of such rescission or return.
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Event of Default: The term "Event of Default" shall mean any
event specified in Section 7.1(a), (b), (c), (d), (e), (f) or (g).
Exchange Act: The term "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder, as in effect from time to time.
Fundamental Change: The term "Fundamental Change" means the
occurrence of any transaction or event in connection with which all or
substantially all Common Stock shall be exchanged for, be converted
into, be acquired for or constitute the right to receive consideration
(whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization
or otherwise) which is not all or substantially all common stock listed
(or, upon consummation of or immediately following such transaction or
event which will be listed) on a United States national securities
exchange or approved for quotation on the Nasdaq National Market or any
similar system of automated dissemination of quotations of securities
prices.
Indebtedness: The term "Indebtedness" shall mean, with respect to
any Person, and without duplication, (a) all indebtedness, obligations
and other liabilities (contingent or otherwise) of such Person for
borrowed money (including obligations of the Company 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
evidenced by 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 account payable or
other accrued current liability or obligation incurred in the ordinary
course of business in connection with the obtaining of materials or
services; (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) in respect of leases of such
Person required, in conformity with generally accepted accounting
principles, to be accounted for as capitalized lease obligations on the
balance sheet of such Person and all obligations and other liabilities
(contingent or otherwise) under any lease or related document (including
a purchase agreement) in connection with the lease of real property
which provides that such Person is contractually obligated to purchase
or cause a third party to purchase the leased property and thereby
guarantee a minimum residual value of the leased property to the lessor
and the obligations of such Person under such lease or related document
to purchase or to cause a third party to purchase such leased property;
(d) all obligations of such Person (contingent or otherwise) with
respect to an interest rate or other swap, cap or collar agreement or
other similar instrument or agreement or foreign currency hedge,
exchange, purchase or similar instrument or agreement; (e) all direct or
indirect guaranties or similar agreements by
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such Person in respect of, and obligations or liabilities (contingent or
otherwise) 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 kind described in clauses (a)
through (d); (f) any indebtedness or other obligations described in
clauses (a) through (d) secured by any mortgage, pledge, lien or other
encumbrance existing on property which is owned or held by such Person,
regardless of whether the indebtedness or other obligation secured
thereby shall have been assumed by such Person; and (g) any and all
deferrals, renewals, extensions and refundings of, or amendments,
modifications or supplements to, any indebtedness, obligation or
liability of the kind described in clauses (a) through (f).
Indenture: The term "Indenture" shall mean this instrument as
originally executed or, if amended or supplemented as herein provided,
as so amended or supplemented.
Initial Purchasers: The term "Initial Purchasers" means Xxxxxx
Xxxxxxx & Co. Incorporated, BT Alex. Xxxxx Incorporated, Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxxx & Co. Inc.
Liquidated Damages: The term "Liquidated Damages" shall have the
meaning specified in Section 2(e) of the Registration Rights Agreement.
Note or Notes: The terms "Note" or "Notes" shall mean any Note or
Notes, as the case may be, authenticated and delivered under this
Indenture, including the Global Note.
Noteholder or holder: The terms "Noteholder" or "holder" as
applied to any Note, or other similar terms (but excluding the term
"beneficial holder"), shall mean any Person in whose name at the time a
particular Note is registered on the Note registrar's books.
Officers' Certificate: The term "Officers' Certificate," when
used with respect to the Company, shall mean a certificate signed by
both (a) the President, the Chief Executive Officer or the Chief
Financial Officer and (b) by the Treasurer or the Secretary of the
Company.
Opinion of Counsel: The term "Opinion of Counsel" shall mean an
opinion in writing signed by legal counsel, who may be an employee of or
counsel to the Company, or other counsel acceptable to the Trustee.
outstanding: The term "outstanding," (except as otherwise
provided in Section 8.10) when used with reference to Notes, shall,
subject to the provisions of Section 9.4,
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mean, as of any particular time, all Notes authenticated and delivered
by the Trustee under this Indenture, except
(a) Notes theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Notes, or portions thereof, (i) for the redemption
of which monies in the necessary amount shall have been deposited
in trust with the Trustee or with any paying agent (other than
the Company) or (ii) which shall have been otherwise defeased in
accordance with Article XIII;
(c) Notes in lieu of which, or in substitution for
which, other Notes shall have been authenticated and delivered
pursuant to the terms of Section 2.6; and
(d) Notes converted into Common Stock pursuant to
Article XV and Notes deemed not outstanding pursuant to Article
III.
Person: The term "Person" shall mean a corporation, an
association, a partnership, an individual, a joint venture, a joint
stock company, a trust, an unincorporated organization or a government
or an agency or a political subdivision thereof.
PORTAL Market: The term "PORTAL Market" shall mean the Private
Offerings, Resales and Trading through Automated Linkages Market
operated by the National Association of Securities Dealers, Inc. or any
successor thereto.
Predecessor Note: The term "Predecessor Note" of any particular
Note shall mean every previous Note evidencing all or a portion of the
same debt as that evidenced by such particular Note; and, for the
purposes of this definition, any Note authenticated and delivered under
Section 2.6 in lieu of a lost, destroyed or stolen Note shall be deemed
to evidence the same debt as the lost, destroyed or stolen Note that it
replaces.
QIB: The term "QIB" shall mean a "qualified institutional buyer"
as defined in Rule 144A.
Reference Market Price: The term "Reference Market Price" shall
initially mean $25.92 and, in the event of any adjustment to the
Conversion Price pursuant to Sections 15.5(a), (b), (c), (d), (e), (f)
or (g), the Reference Market Price shall also be adjusted so that the
ratio of the Reference Market Price to the Conversion Price after giving
effect to any such adjustment shall always be the same as the ratio of
$25.92 to the initial Conversion Price specified in the form of Note
attached hereto (without regard to any adjustment thereto).
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Register: The term "Register" shall have the meaning specified
in Section 2.5(a).
Registration Rights Agreement: The term "Registration Rights
Agreement" means that certain Registration Rights Agreement, dated as of
March 13, 1998, between the Company and the Initial Purchasers.
Regulation S: The term "Regulation S" shall mean Regulation S
promulgated under the Securities Act.
Representative: The term "Representative" shall mean the (a)
indenture trustee or other trustee, agent or representative for any
Senior Indebtedness or (b) with respect to any Senior Indebtedness that
does not have any such trustee, agent or other representative, (i) in
the case of such Senior Indebtedness issued pursuant to an agreement
providing for voting arrangements as among the holders or owners of such
Senior Indebtedness, any holder or owner of such Senior Indebtedness
acting with the consent of the required persons necessary to bind such
holders or owners of such Senior Indebtedness and (ii) in the case of
all other such Senior Indebtedness, the holder or owner of such Senior
Indebtedness.
Responsible Officer: The term "Responsible Officer," when used
with respect to the Trustee, shall mean any officer of the Trustee in
the Corporate Trust Office assigned and duly authorized by the Trustee
to administer its corporate trust matters hereunder.
Restricted Securities: The term "Restricted Securities" has the
meaning specified in Section 2.5(d).
Rule 144A: The term "Rule 144A" shall mean Rule 144A promulgated
under the Securities Act.
Securities Act: The term "Securities Act" shall mean the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
Senior Indebtedness: The term "Senior Indebtedness" shall mean
the principal of, premium, if any, interest (including all interest
accruing subsequent to the commencement of any bankruptcy or similar
proceeding, whether or not a claim for post-petition interest is
allowable as a claim in any such proceeding) and rent payable on or in
connection with, and all fees, costs, expenses and other amounts accrued
or due on or in connection with, Indebtedness of the Company, whether
outstanding on the date of this Indenture or thereafter created,
incurred, assumed, guaranteed or in effect guaranteed by the Company
(including all deferrals, renewals, extensions, refinancings or
refundings of, or amendments, restatements, modifications or supplements
to, the
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foregoing), unless in the case of any particular Indebtedness the
instrument creating or evidencing the same or the assumption or
guarantee thereof expressly provides that such Indebtedness shall not be
senior in right of payment to the Notes or expressly provides that such
Indebtedness is "pari passu" or "junior" to the Notes. Notwithstanding
the foregoing, the term Senior Indebtedness shall not include any
Indebtedness of the Company to any subsidiary of the Company, a majority
of the voting stock of which is owned, directly or indirectly, by the
Company. If any payment made to any holder of any Senior Indebtedness or
its Representative with respect to such Senior Indebtedness is rescinded
or must otherwise be returned by such holder or Representative upon the
insolvency, bankruptcy, reorganization, receivership, dissolution,
winding-up or liquidation of the Company or similar proceeding, the
reinstated Indebtedness of the Company arising as a result of such
rescission or return shall constitute Senior Indebtedness effective as
of the date of such rescission or return.
Subsidiary: The term "Subsidiary" means, with respect to any
Person, (i) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of capital stock
entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof is at the
time owned or controlled, directly or indirectly, by such Person or one
or more of the other subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or
managing general partner of which is such Person or a subsidiary of such
Person or (b) the only general partners of which are such Person or of
one or more subsidiaries of such Person (or any combination thereof).
Trading Day: The term "Trading Day" shall have the meaning
specified in Section 15.5(i)(5).
Trigger Event: The term "Trigger Event" shall have the meaning
specified in Section 15.5(d).
Trust Indenture Act: The term "Trust Indenture Act" shall mean
the Trust Indenture Act of 1939, as amended, as it was in force at the
date of execution of this Indenture, except as provided in Sections 11.3
and 15.6; provided, however, that in the event the Trust Indenture Act
of 1939 is amended after the date hereof, the term "Trust Indenture Act"
shall mean, to the extent required by such amendment, the Trust
Indenture Act of 1939 as so amended.
Trustee: The term "Trustee" shall mean Chase Manhattan Bank and
Trust Company, National Association, and its successors and any
corporation resulting from or surviving any consolidation or merger to
which it or its successors may be a party and any successor trustee at
the time serving as successor trustee hereunder.
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The definitions of certain other terms are as specified in
Section 2.5 and 3.5 and Article XV.
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION
AND EXCHANGE OF NOTES
Section 2.1 Designation Amount and Issue of Notes. The Notes
shall be designated as "4 1/4% Convertible Subordinated Notes due 2004." Notes
not to exceed the aggregate principal amount of $197,225,000 (except pursuant to
Sections 2.5, 2.6, 3.3, 3.5 and 15.2 hereof) upon the execution of this
Indenture, or from time to time thereafter, may be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Notes to or upon the Trustee's receipt of the
written order of the Company, signed by its (a) President, Chief Executive
Officer or Chief Financial Officer and (b) Treasurer or Secretary, and the other
documents required pursuant to Sections 16.5 and 16.6 hereof, without any
further action of the Company hereunder.
Section 2.2 Form of Notes. The Notes and the Trustee's
certificate of authentication to be borne by such Notes shall be substantially
in the form set forth in Exhibit A, which is incorporated in and made part of
this Indenture.
Any of the Notes may have such letters, numbers or other marks of
identification and such notations, legends and endorsements as the officers
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Notes may be
listed, or to conform to usage. Neither the Company nor the Trustee shall have
any responsibility for any defect in the CUSIP number that appears on any bond,
debenture, coupon, note, check, advice of payment or redemption notice, and any
such document may contain a statement to the effect that CUSIP numbers have been
assigned by an independent service for convenience of reference and that neither
the Company nor the Trustee shall be liable for any inaccuracy in such numbers.
Any Note in global form shall represent such of the outstanding
Notes as shall be specified therein and shall provide that it shall represent
the aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from time
to time be increased or reduced to reflect transfers or exchanges permitted
hereby. Any endorsement of a Note in global form to reflect the amount of any
increase or decrease in the amount of outstanding Notes represented thereby
shall be made by the Trustee or the Custodian, at the direction of the Trustee,
in such manner
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and upon instructions given by the holder of such Notes in accordance with this
Indenture. Payment of principal of and interest (including Liquidated Damages,
if any) and premium, if any, on any Note in global form shall be made to the
holder of such Note.
The terms and provisions contained in the form of Note attached
as Exhibit A hereto shall constitute, and are hereby expressly made, a part of
this Indenture and, to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
Section 2.3 Date and Denomination of Notes; Payments of Interest.
The Notes shall be issuable in registered form without coupons in denominations
of $1,000 principal amount and integral multiples thereof. Every Note shall be
dated the date of its authentication and shall bear interest from the applicable
date in each case as specified on the face of the form of Note attached as
Exhibit A hereto. Interest on the Notes shall be computed on the basis of a
360-day year comprised of twelve 30-day months.
The Person in whose name any Note (or its Predecessor Note) is
registered at the close of business on any record date with respect to any
interest payment date, except (i) that the interest payable upon redemption
(unless the date of redemption is an interest payment date) will be payable to
the person to whom principal is payable and (ii) as set forth in the next
succeeding sentence. In the case of any Note (or portion thereof) which is
converted into Common Stock of the Company during the period from (but
excluding) a record date to (but excluding) the next succeeding interest payment
date either (i) if such Note (or portion thereof) has been called for redemption
on a redemption date which occurs during such period, or is to be redeemed in
connection with a Fundamental Change on a Repurchase Date (as defined in Section
3.5) which occurs during such period, the Company shall not be required to pay
interest on such interest payment date in respect of any such Note (or portion
thereof) except to the extent required to be paid upon redemption of such Note
or portion thereof pursuant to Section 3.3 or 3.5 hereof or (ii) if otherwise,
any Note (or portion thereof) submitted for conversion during such period shall
be accompanied by funds equal to the interest payable on such succeeding
interest payment date on the principal amount so converted. Interest may, as the
Company shall specify to the paying agent in writing by each record date, be
paid either (i) by check mailed to the address of the person entitled thereto as
it appears in the Note register or (ii) by transfer to an account maintained by
such person located in the United States; provided, however, that payments to
the Depositary will be made by wire transfer of immediately available funds to
the account of the Depositary or its nominee. The term "record date" with
respect to any interest payment date shall mean the March 1 or September 1
preceding said March 15 or September 15, respectively.
Any interest (including Liquidated Damages, if any) on any Note
which is payable, but is not punctually paid or duly provided for, on any said
March 15 or September 15 (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Noteholder on the relevant record date by virtue of
his having been such Noteholder; and such
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Defaulted Interest shall be paid by the Company, at its election in each case,
as provided in clause (1) or (2) below;
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Notes (or their
respective Predecessor Notes) are registered at the close of business on
a special record date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest to be paid on
each Note and the date of the payment (which shall be not less than
twenty-five (25) days after the receipt by the Trustee of such notice,
unless the Trustee shall consent to an earlier date), and at the same
time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as provided in this clause. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted
Interest which shall be not more than fifteen (15) days and not less
than ten (10) days prior to the date of the proposed payment and not
less than ten (10) days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company
of such special record date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the special record date therefor to be mailed, first-class
postage prepaid to each Noteholder at his address as it appears on the
Register, not less than ten (10) days prior to such special record date.
Notice of the proposed payment of such Defaulted Interest and the
special record date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Notes (or their
respective Predecessor Notes) were registered at the close of business
on such special record date and shall no longer be payable pursuant to
the following clause (2) of this Section 2.3.
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange or automated quotation system on
which the Notes may be listed or designated for issuance, and upon such
notice as may be required by such exchange or automated quotation
system, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall
be deemed practicable by the Trustee.
Section 2.4 Execution of Notes. The Notes shall be signed in the
name and on behalf of the Company by the facsimile signature of its Chief
Executive Officer or President, and attested by the facsimile signature of its
Chief Financial Officer, Treasurer or Secretary (which may be printed, engraved
or otherwise reproduced thereon, by facsimile or otherwise). Only such Notes as
shall bear thereon a certificate of authentication substantially in the form set
forth on the form of Note attached as Exhibit A hereto, manually executed by
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the Trustee (or an authenticating agent appointed by the Trustee as provided by
Section 16.11), shall be entitled to the benefits of this Indenture or be valid
or obligatory for any purpose. Such certificate by the Trustee (or such an
authenticating agent) upon any Note executed by the Company shall be conclusive
evidence that the Note so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this
Indenture.
In case any officer of the Company who shall have signed any of
the Notes shall cease to be such officer before the Notes so signed shall have
been authenticated and delivered by the Trustee, or disposed of by the Company,
such Notes nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Notes had not ceased to be such officer of the
Company; and any Note may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Note, shall be the proper officers
of the Company, although at the date of the execution of this Indenture any such
person was not such an officer.
Section 2.5 Exchange and Registration of Transfer of Notes:
Restrictions on Transfer; Depositary.
(a) The Company shall cause to be kept at the Corporate Trust
Office a register (the register maintained in such office and in any other
office or agency of the Company designated pursuant to Section 5.2 being herein
sometimes collectively referred to as the "Register") in which, subject to such
reasonable regulations as it may prescribe, be registered and the transfer of
Notes shall be registered as provided in this Article II. Such Register shall be
in written form or in any other form capable of being converted into written
form within a reasonable time. At all reasonable times such Register shall be
open for inspection by the Trustee. Upon due presentment for registration of
transfer of any Note at any office or agency maintained by the Company pursuant
to Section 5.2, the Company shall execute and register and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new Note
or Notes for an equal aggregate principal amount. The Trustee is hereby
appointed "Note registrar" for the purpose of registering Notes and transfers of
Notes as provided herein. The Company may appoint one or more co-registrars in
accordance with Section 5.2.
Upon due presentment for registration of transfer of any Note to
the Trustee and satisfaction of the requirements for such transfer set forth in
this Section 2.5, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Notes of any authorized denominations and of a like aggregate principal
amount and bearing such restrictive legends as may be required by this
Indenture, without charge except for any tax or other governmental charge
imposed in connection herewith.
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Notes may be exchanged for a like aggregate principal amount of
Notes of other authorized denominations. Notes to be exchanged shall be
surrendered at any office or agency to be maintained by the Company pursuant to
Section 5.2 and the Company shall execute and register and the Trustee shall
authenticate and deliver in exchange therefor the Note or Notes which the
Noteholder making the exchange shall be entitled to receive, bearing
registration numbers not contemporaneously outstanding.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
All Notes presented or surrendered for registration of transfer
or for exchange, redemption or conversion shall (if so required by the Company
or the Note registrar) be duly endorsed, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company, and
the Notes shall be duly executed by the Noteholder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax, assessment or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes.
Neither the Company nor the Trustee shall be required to exchange
or register a transfer of (i) any Notes for a period of fifteen (15) days next
preceding any selection of Notes to be redeemed or (ii) any Notes or portions
thereof called for redemption pursuant to Section 3.2 or (iii) any Notes or
portion thereof surrendered for conversion pursuant to Article XV or (iv) any
Notes or portions thereof tendered for redemption pursuant to Section 3.5.
(b) So long as the Notes are eligible for book-entry
settlement with the Depositary, or unless otherwise required by law, all Notes
that are so eligible may be represented by one or more Notes in global form
registered in the name of the Depositary or the nominee of the Depositary (each,
a Global Note), except as otherwise specified below. The transfer and exchange
of beneficial interests in any such Note in any such Global Note shall be
effected through the Depositary in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depositary
therefor. The Trustee shall make appropriate endorsements to reflect increases
or decreases in the principal amounts of such global Notes as set forth in the
face of the Note ("Principal Amount") to reflect any such transfers.
Except as provided below, beneficial owners of a Note in global
form shall not be entitled to have certificates registered in their names, will
not receive or be entitled to
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receive physical delivery of certificates in definitive form and will not be
considered holders of such Notes in global form.
(c) So long as the Notes are Restricted Securities and are
eligible for book-entry settlement, or unless otherwise required by law, as set
forth in an Officers' Certificate delivered to the Trustee, upon receipt by the
Trustee of any definitive Note or Notes for registration of transfer, together
with the form of assignment duly completed with an indication that such transfer
is being made pursuant to Rule 144A or Regulation S, the Trustee shall make an
endorsement on the Global Note to reflect an increase in the aggregate Principal
Amount represented by such Global Note equal to the principal amount of the
definitive Note or Notes being so transferred, and the Trustee shall cancel such
definitive Note or Notes, in accordance with the standing instructions and
procedures of the Depositary. Notwithstanding the foregoing, (i) no definitive
Note, or portion thereof, as to which the Trustee was notified in writing by the
Company that the Company or any Affiliate of the Company held any beneficial
interest therein, shall be included in such Global Note and (ii) the Trustee
shall issue Notes in definitive form upon registration of transfer of any
beneficial interest in a Note in global form to the Company or any Affiliate of
the Company.
Any Note in global form may be endorsed with or have incorporated
in the text thereof such legends or recitals or changes not inconsistent with
the provisions of this Indenture as may be required by the Custodian, the
Depositary or by the National Association of Securities Dealers, Inc. in order
for the Notes to be tradeable on the PORTAL Market or as may be required for the
Notes to be tradeable on any other market developed for trading of securities
pursuant to Rule 144A or required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any securities
exchange or automated quotation system upon which the Notes may be listed or
traded or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Notes are subject.
(d) Every Note that bears or is required under this Section
2.5(d) to bear the legend set forth in this Section 2.5(d) (together with any
Common Stock issued upon conversion of the Notes and required to bear the legend
set forth in Section 2.5(e), collectively, the "Restricted Securities") shall be
subject to the restrictions on transfer set forth in this Section 2.5(d)
(including those set forth in the legend set forth below) unless such
restrictions on transfer shall be waived by written consent of the Company, and
the holder of each such Restricted Note, by such Noteholder's acceptance
thereof, agrees to be bound by all such restrictions on transfer. As used in
Sections 2.5(d) and 2.5(e), the term "transfer" encompasses any sale, pledge,
transfer or other disposition whatsoever of any Restricted Security.
Until written notification by the Company to the Trustee of the
expiration of the holding period applicable to sales thereof under Rule 144(k)
under the Securities Act (or any successor provision), every certificate
evidencing a Note (and all securities issued in exchange
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therefor or substitution thereof, other than Common Stock, if any, issued upon
conversion thereof, which shall bear the legend set forth in Section 2.5(e), if
applicable) shall bear a legend in substantially the following form, unless the
Note registrar is notified by the Company in writing that such Note has been
sold pursuant to a registration statement that has been declared effective under
the Securities Act (and which continues to be effective at the time of such
transfer), or unless otherwise agreed by the Company (with written notice
thereof by the Company to the Trustee and the Note registrar):
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT)
("INSTITUTIONAL ACCREDITED INVESTOR"); (2) AGREES THAT IT WILL
NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER
THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), RESELL OR
OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY OR THE COMMON STOCK
ISSUABLE UPON CONVERSION OF SUCH NOTE EXCEPT (A) TO CKE
RESTAURANTS, INC. OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED
STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION, AS TRUSTEE (OR A SUCCESSOR
TRUSTEE, AS APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THE NOTE EVIDENCED HEREBY (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM SUCH TRUSTEE OR A SUCCESSOR TRUSTEE, AS
APPLICABLE), (D) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE) OR (F) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED
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EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER); (3) AGREES THAT PRIOR TO
SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(F)
ABOVE), IT WILL FURNISH TO CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION, AS TRUSTEE (OR A SUCCESSOR
TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN
A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND (4) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
ANY TRANSFER OF THE NOTE EVIDENCED HEREBY PRIOR TO THE EXPIRATION
OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE NOTE EVIDENCED
HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX
SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO CHASE MANHATTAN BANK AND
TRUST COMPANY, NATIONAL ASSOCIATION, AS TRUSTEE (OR A SUCCESSOR
TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER WHO IS NOT A
U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION, AS
TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS
LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE
NOTE EVIDENCED HEREBY PURSUANT TO CLAUSE 2(F) ABOVE OR UPON ANY
TRANSFER OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
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Any Note (or security issued in exchange or substitution
therefor) as to which such restrictions on transfer shall have expired in
accordance with their terms or as to the conditions for removal of the foregoing
legend set forth therein have been satisfied may, upon surrender of such Note
for exchange to the Note registrar in accordance with the provisions of this
Section 2.5, be exchanged for a new Note or Notes, of like tenor and aggregate
principal amount, which shall not bear the restrictive legend required by this
Section 2.5(d).
Notwithstanding any other provisions of this Indenture (other
than the provisions set forth in the second paragraph of Section 2.5(b) and in
this Section 2.5(d)), a Note in global form may not be transferred as a whole or
in part except by the Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of the Depositary or by
the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary.
The Depositary shall be a clearing agency registered under the
Exchange Act. The Company initially appoints The Depository Trust Company to act
as Depositary with respect to the Notes in global form. Initially, the Global
Note shall be issued to the Depositary, registered in the name of Cede & Co., as
the nominee of the Depositary, and deposited with the Custodian for Cede & Co.
If at any time the Depositary for a Note in global form notifies
the Company that it is unwilling or unable to continue as Depositary for such
Note, the Company may appoint a successor Depositary with respect to such Note.
If a successor Depositary is not appointed by the Company within ninety (90)
days after the Company receives such notice, the Company will execute, and the
Trustee, upon receipt of an Officers' Certificate for the authentication and
delivery of Notes, will authenticate and deliver, Notes in certificated form, in
aggregate principal amount equal to the principal amount of such Note in global
form, in exchange for such Note in global form.
If a Note in certificated form is issued in exchange for any
portion of a Note in global form after the close of business at the office or
agency where such exchange occurs on any record date and before the opening of
business at such office or agency on the next succeeding interest payment date,
interest will not be payable on such interest payment date in respect of such
Note, but will be payable on such interest payment date, subject to the
provisions of Section 2.3, only to the Person to whom interest in respect of
such portion of such Note in global form is payable in accordance with the
provisions of this Indenture.
Notes in certificated form issued in exchange for all or a part
of a Note in global form pursuant to this Section 2.5 shall be registered in
such names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. Upon execution and authentication, the Trustee shall
deliver such Notes in certificated form to the Persons in whose names such Notes
in certificated form are so registered.
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At such time as all interests in a Note in global form have been
redeemed, converted, canceled or exchanged for Notes in certificated form, or
transferred to a transferee who receives Notes in certificated form thereof,
such Note in global form shall, upon receipt thereof, be canceled by the Trustee
in accordance with standing procedures and instructions existing between the
Depositary and the Custodian. At any time prior to such cancellation, if any
interest in a global Note is exchanged for Notes in certificated form, redeemed,
converted, repaid or canceled, or transferred to a transferee who receives Notes
in certificated form therefor or any Note in certificated form is exchanged or
transferred for part of a Note in global form, the principal amount of such Note
in global form shall, in accordance with the standing procedures and
instructions existing between the Depositary and the Custodian, be appropriately
reduced or increased, as the case may be, and an endorsement shall be made on
such Note in global form, by the Trustee or the Custodian, at the direction of
the Trustee, to reflect such reduction or increase.
(e) Until written notification by the Company to the Trustee
of the expiration of the holding period applicable to sales thereof under Rule
144(k) under the Securities Act (or any successor provision), any stock
certificate representing Common Stock issued upon conversion of such Note shall
bear a legend in substantially the following form, unless such Common Stock has
been sold pursuant to a registration statement that has been declared effective
under the Securities Act (and which continues to be effective at the time of
such transfer) or such Common Stock has been issued upon conversion of Notes
that have been transferred pursuant to a registration statement that has been
declared effective under the Securities Act, or unless otherwise agreed by the
Company (with written notice thereof by the Company to the Trustee and the Note
registrar):
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES
THAT UNTIL THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER
THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), (1) IT WILL NOT
RESELL OR OTHERWISE TRANSFER THE COMMON STOCK EVIDENCED HEREBY
EXCEPT (A) TO CKE RESTAURANTS, INC. OR ANY SUBSIDIARY THEREOF,
(B) INSIDE THE UNITED STATES TO A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN COMPLIANCE
WITH RULE 144A, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.,
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AS TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT, AS APPLICABLE),
A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED
HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRANSFER AGENT OR A SUCCESSOR TRANSFER AGENT, AS APPLICABLE), (D)
OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR
(F) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER); (2) PRIOR TO SUCH
TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 1(F) ABOVE),
IT WILL FURNISH TO CHASEMELLON SHAREHOLDER SERVICES, L.L.C., AS
TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT, AS APPLICABLE),
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND (3) IT WILL DELIVER TO EACH PERSON TO WHOM THE COMMON STOCK
EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT
TO CLAUSE 1(F) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE
TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY PURSUANT TO CLAUSE
1(F) ABOVE OR UPON ANY TRANSFER OF THE COMMON STOCK EVIDENCED
HEREBY AFTER THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER
THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION). AS USED HEREIN,
THE TERMS "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Any such Common Stock as to which such restrictions on transfer
shall have expired in accordance with their terms or as to which the conditions
for removal of the foregoing legend set forth therein have been satisfied may,
upon surrender of the certificates representing such shares of Common Stock for
exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like number of
shares of Common Stock, which shall not bear the restrictive legend required by
this Section 2.5(e).
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(f) Any Note or Common Stock issued upon the conversion or
exchange of a Note that, prior to the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities Act (or any
successor provision), is purchased or owned by the Company or any Affiliate
thereof may not be resold by the Company or such Affiliate unless registered
under the Securities Act or resold pursuant to an exemption from the
registration requirements of the Securities Act in a transaction which results
in such Notes or Common Stock, as the case may be, no longer being "restricted
securities" (as defined under Rule 144).
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes. In case
any Note shall become mutilated or be destroyed, lost or stolen, the Company in
its discretion may execute, and upon its request the Trustee or an
authenticating agent appointed by the Trustee shall authenticate and deliver, a
new Note, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Note, or in lieu of and in substitution for the
Note so destroyed, lost or stolen. In every case the applicant for a substituted
Note shall furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent such security or indemnity as may be required by them to
hold each of them harmless for any loss, liability, cost or expense caused by or
connected with such substitution, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Company, to the Trustee and, if
applicable, to such authenticating agent evidence to their satisfaction of the
destruction, loss or theft of such Note and of the ownership thereof.
Following receipt by the Trustee or such authenticating agent, as
the case may be, of satisfactory security or indemnity and evidence, as
described in the preceding paragraph, the Trustee or such authenticating agent
may authenticate any such substituted Note and deliver such Note. Upon the
issuance of any substituted Note, 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 connected therewith. In case any Note
which has matured or is about to mature or has been called for redemption or is
about to be converted into Common Stock shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substitute Note, pay or
authorize the payment of or convert or authorize the conversion of the same
(without surrender thereof except in the case of a mutilated Note), as the case
may be, if the applicant for such payment or conversion shall furnish to the
Company, to the Trustee and, if applicable, to such authenticating agent such
security or indemnity as may be required by them to save each of them harmless
for any loss, liability, cost or expense caused by or connected with such
substitution, and, in case of destruction, loss or theft, evidence satisfactory
to the Company, the Trustee and, if applicable, any paying agent or conversion
agent of the destruction, loss or theft of such Note and of the ownership
thereof.
Every substitute Note issued pursuant to the provisions of this
Section 2.6 by virtue of the fact that any Note is destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether or
not the apparently destroyed, lost or stolen Note shall be found at any time,
and shall be entitled to all the benefits of (but shall be subject to all the
limitations set forth in) this Indenture equally and proportionately with any
and all
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other Notes duly issued hereunder. To the extent permitted by law, all Notes
shall be held and owned upon the express condition that the foregoing provisions
are exclusive with respect to the replacement or payment or conversion of
mutilated, destroyed, lost or stolen Notes and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment or conversion
of negotiable instruments or other securities without their surrender.
Section 2.7 Temporary Notes. Pending the preparation of Notes in
certificated form, the Company may execute and the Trustee or an authenticating
agent appointed by the Trustee shall, upon the request of the Company,
authenticate and deliver temporary Notes (printed or lithographed). Temporary
Notes shall be issuable in any authorized denomination, and substantially in the
form of the Notes in certificated form, but with such omissions, insertions and
variations as may be appropriate for temporary Notes, all as may be determined
by the Company. Every such temporary Note shall be executed by the Company and
authenticated by the Trustee or such authenticating agent upon the same
conditions and in substantially the same manner, and with the same effect, as
the Notes in certificated form. Without unreasonable delay the Company will
execute and deliver to the Trustee or such authenticating agent Notes in
certificated form (other than in the case of Notes in global form) and thereupon
any or all temporary Notes (other than any such Note in global form) may be
surrendered in exchange therefor, at each office or agency maintained by the
Company pursuant to Section 5.2 and the Trustee or such authenticating agent
shall authenticate and deliver in exchange for such temporary Notes an equal
aggregate principal amount of Notes in certificated form. Such exchange shall be
made by the Company at its own expense and without any charge therefor. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits and subject to the same limitations under this Indenture as Notes in
certificated form authenticated and delivered hereunder.
Section 2.8 Cancellation of Notes Paid, Etc. All Notes
surrendered for the purpose of payment, redemption, conversion, exchange or
registration of transfer, shall, if surrendered to the Company or any paying
agent or any Note registrar or any conversion agent, be surrendered to the
Trustee and promptly canceled by it, or, if surrendered to the Trustee, shall be
promptly canceled by it, and no Notes shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee
shall destroy canceled Notes (unless the Company directs it to do otherwise)
and, after such destruction, shall deliver a certificate of such destruction to
the Company. If the Company shall acquire any of the Notes, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Notes unless and until the same are delivered to the Trustee
for cancellation.
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ARTICLE III
REDEMPTION OF NOTES
Section 3.1 Redemption Prices. The Notes will not be redeemable
at the option of the Company prior to March 20, 2001. At any time on or after
March 20, 2001 and prior to maturity, the Notes may (unless theretofore repaid
or converted) be redeemed at the option of the Company as a whole, or from time
to time in part, upon notice as set forth in Section 3.2, and at the following
redemption prices (expressed as percentages of the principal amount), together
in each case with accrued interest to, but excluding, the date fixed for
redemption: if redeemed during the period beginning March 20, 2001 and ending on
March 14, 2002 at a redemption price of 102.125%, if redeemed during the
12-month period beginning March 15, 2002 at a redemption price of 101.417%, if
redeemed during the 12-month period beginning March 15, 2003 at a redemption
price of 100.708% and 100% at March 15, 2004; provided that if the date fixed
for redemption is on March 15 or September 15, then the interest payable on such
date shall be paid to the holder of record on the next preceding March 1 or
September 1, respectively.
Section 3.2 Notice of Redemption; Selection of Notes. In case the
Company shall desire to exercise the right to redeem all or, as the case may be,
any part of the Notes pursuant to Section 3.1, it shall fix a date for
redemption and it or, at its written request received by the Trustee not fewer
than forty-five (45) days prior (or such shorter period of time as may be
acceptable to the Trustee) to the date fixed for redemption, the Trustee in the
name of the and at the expense of the Company, shall mail or cause to be mailed
a notice of such redemption at least 30 days prior to the date fixed for
redemption to the holders of Notes so to be redeemed as a whole or in part at
their last addresses as the same appear on the Note register (provided that if
the Company shall give such notice, it shall also give written notice, and
written notice of the Notes to be redeemed, to the Trustee). Such mailing shall
be by first class mail. The notice if mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notice to the holder of any note designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Note.
Each such notice of redemption shall specify the aggregate
principal amount of Notes to be redeemed, the date fixed for redemption which
shall be a Business Day, the redemption price at which Notes are to be redeemed,
the place or places of payment, that payment will be made upon presentation and
surrender of such Notes, that interest accrued to, but excluding, the date fixed
for redemption will be paid as specified in said notice, and that on and after
said date interest thereon or on the portions thereof to be redeemed will cease
to accrue. Such notice shall also state the current Conversion Price and the
date on which the right to convert such Notes or portions thereof into Common
Stock will expire. If fewer than all the Notes are to be redeemed, the notice of
redemption shall identify the Notes to be
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redeemed. In case any Note is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion thereof will be issued.
On or before the date fixed for redemption specified in the
notice of redemption given as provided in this Section 3.2, subject to the
provisions of Article IV hereof, the Company will deposit with the Trustee or
with one or more paying agents (or, if the Company is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 5.4) an
amount of money sufficient to redeem on the date fixed for redemption all the
Notes (or portions thereof) so called for redemption (other than those
theretofore surrendered for conversion into Common Stock) at the appropriate
redemption price, together with accrued interest to, but excluding, the date
fixed for redemption; provided that if such payment is made on the date fixed
for redemption it must be received by the Trustee or paying agent, as the case
may be, by 11:00 a.m. New York City time, on such date. If any Note called for
redemption is converted pursuant hereto, any money deposited with the Trustee or
any paying agent or so segregated and held in trust for the redemption of such
Note shall be paid to the Company upon its request, or, if then held by the
Company shall be discharged from such trust. Whenever any Notes are to be
redeemed, the Company will give the Trustee written notice in the form of an
Officers' Certificate not fewer than forty-five (45) days (or such shorter
period of time as may be acceptable to the Trustee) prior to the redemption date
as to the aggregate principal amount of Notes to be redeemed.
If less than all of the outstanding Notes are to be redeemed, the
Trustee shall select the Notes to be redeemed in principal amounts of $1,000 or
multiples thereof in compliance with the requirements, as certified to the
Trustee by the Company in the form of an Officers' Certificate of the principal
national securities exchange on which the Notes are listed, or if the Notes are
not so listed, by lot, pro rata or by another method the Trustee considers fair
and appropriate. If a portion of a holder's Notes is selected for partial
redemption and such holder converts a portion of such Notes, such converted
portion shall be deemed (so far as may be) to be the portion selected for
redemption. The Notes (or portions thereof) so selected shall be deemed duly
selected for redemption for all purposes hereof, notwithstanding that any such
Note is converted as a whole or in part before the mailing of the notice of
redemption.
Upon any redemption of less than all Notes, the Company and the
Trustee may (but need not) treat as outstanding any Notes surrendered for
conversion during the period of fifteen (15) days next preceding the mailing of
a notice of redemption and may (but need not) treat as outstanding any Note
authenticated and delivered during such period in exchange for the unconverted
portion of any Note converted in part during such period.
Section 3.3 Payment of Notes Called for Redemption. If notice of
redemption has been given as above provided, the Notes or portions of Notes with
respect to
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which such notice has been given shall, unless theretofore converted into Common
Stock pursuant to the terms hereof, become due and payable on the date fixed for
redemption and at the place or places stated in such notice at the applicable
redemption price, together with interest accrued to, but excluding, the date
fixed for redemption, and on and after said date (unless the Company shall
default in the payment of such Notes at the redemption price, together with
interest accrued to said date) interest on the Notes or portion of Notes so
called for redemption shall cease to accrue and such Notes shall cease after the
close of business on the Business Day immediately preceding the date fixed for
redemption to be convertible into Common Stock and, except as provided in
Sections 8.5 and 13.4, to be entitled to any benefit or security under this
Indenture, and the holders thereof shall have no right in respect of such Notes
except the right to receive the redemption price thereof and unpaid interest to,
but excluding, the date fixed for redemption. On presentation and surrender of
such Notes at a place of payment in said notice specified, the said Notes or the
specified portions thereof shall be paid and redeemed by the Company at the
applicable redemption price, together with interest accrued thereon to, but
excluding, the date fixed for redemption; provided that, if the applicable date
fixed for redemption is an interest payment date, the semi-annual payment of
interest becoming due on such date shall be payable to the holders of such Notes
registered as such on the relevant record date instead of the holders
surrendering such Notes for redemption on such date.
Upon presentation of any Note redeemed in part only, the Company
shall execute and the Trustee shall authenticate and deliver to the holder
thereof, at the expense of the Company, a new Note or Notes, of authorized
denominations, in principal amount equal to the unredeemed portion of the Note
so presented.
Notwithstanding the foregoing, the Trustee shall not redeem any
Notes or mail any notice of optional redemption during the continuance of a
default in payment of interest or premium on the Notes or of any Event of
Default. If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and premium, if any, shall, until paid or
duly provided for, bear interest from the date fixed for redemption at the rate
borne by the Note and such Note shall remain convertible into Common Stock until
the principal and premium, if any, shall have been paid or duly provided for.
Section 3.4 Conversion Arrangement on Call for Redemption. In
connection with any redemption of Notes, the Company may arrange for the
purchase and conversion of any Notes by an agreement with one or more investment
bankers or other purchasers to purchase such Notes by paying to the Trustee in
trust for the Noteholders, on or before the date fixed for redemption, an amount
not less than the applicable redemption price, together with interest accrued
to, but excluding, the date fixed for redemption, of such Notes. Notwithstanding
anything to the contrary contained in this Article III, the obligation of the
Company to pay the redemption price of such Notes, together with interest
accrued to, but excluding, the date fixed for redemption, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, a copy
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of which will be filed with the Trustee prior to the date fixed for redemption,
any Notes not duly surrendered for conversion by the holders thereof may, at the
option of the Company, be deemed, to the fullest extent permitted by law,
acquired by such purchasers from such holders and (notwithstanding anything to
the contrary contained in Article XV) surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the date
fixed for redemption (and the right to convert any such Notes shall be extended
through such time), subject to payment of the above amount as aforesaid. At the
direction of the Company, the Trustee shall hold and dispose of any such amount
paid to it in the same manner as it would monies deposited with it by the
Company for the redemption of Notes. Without the Trustee's prior written
consent, no arrangement between the Company and such purchasers for the purchase
and conversion of any Notes shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the Trustee as set forth in
this Indenture.
Section 3.5 Redemption at Option of Holders.
(a) If a Fundamental Change occurs at any time while Notes are
outstanding, each holder of Notes shall have the right, at such holder's option,
to require the Company to redeem all of such holder's Notes, or any portion
thereof that is an integral multiple of $1,000 principal amount on the date (the
"Repurchase Date") that is 30 days (or if such 30th day is not a Business Day,
the next succeeding Business Day) after the date of the Company Notice of such
Fundamental Change.
The Company shall redeem such Notes at a price equal to 100% of
the principal amount thereof; provided in each case that if the Applicable Price
is less than the Reference Market Price, the Company shall redeem such Notes at
a price equal to the foregoing redemption price multiplied by the fraction
obtained by dividing the Applicable Price by the Reference Market Price;
provided that if such repayment date is March 15 or September 15, then the
interest payable on such date shall be paid to the holder of record of the Note
on the next preceding March 1 or September 1. In each case, the Company shall
also pay to such holders accrued interest to, but excluding, the Repurchase Date
on the redeemed Notes.
Upon presentation of any Note redeemed in part only, the Company
shall execute, and, upon the Company's written direction to the Trustee, the
Trustee shall authenticate and deliver to the holder thereof, at the expense of
the Company, a new Note or Notes, of authorized denominations, in principal
amount equal to the unredeemed portion of the Notes so presented.
(b) On or before the tenth day after the occurrence of a
Fundamental Change, the Company, or, at its written request (which must be
received by the Trustee at least five Business Days prior to the date the
Trustee is requested to give notice as described below), the Trustee in the name
of and at the expense of the Company, shall mail or cause to be mailed to all
holders of record on the date of the Fundamental Change a notice (the "Company
Notice") of the occurrence of such Fundamental Change and of the redemption
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right at the option of the holders arising as a result thereof. Such notice
shall be mailed in the manner and with the effect set forth in the first
paragraph of Section 3.2. The Company shall also use its best efforts to have a
notice published at least once in each of Bloomberg Business News, Dow Xxxxx
News (DJN) and Xxxxxx Financial Report in The City of New York on or before the
tenth day after the occurrence of a Fundamental Change. The Company shall
promptly deliver a copy of each of the published notices and Company Notice to
the Trustee.
Each published notice and Company Notice shall specify the
circumstances constituting the Fundamental Change, the Repurchase Date, the
price at which the Company shall be obligated to repay Notes, the latest time on
the Repurchase Date by which the holder must exercise the redemption right (the
"Fundamental Change Expiration Time"), that the holder shall have the right to
withdraw any Notes surrendered prior to the Fundamental Change Expiration Time,
a description of the procedure which a Noteholder must follow to exercise such
redemption right and to withdraw any surrendered Notes, the place or places
where the holder is to surrender such holder's Notes, and the amount of interest
accrued on each Note to, but excluding, the Repurchase Date.
No failure of the Company to give the foregoing notices and no
defect therein shall limit the Noteholders' repayment rights or affect the
validity of the proceedings for the repayment of the Notes pursuant to this
Section 3.5.
(c) For a Note to be so repaid at the option of the holder,
the Company must receive at the office or agency of the Company maintained for
that purpose or, at the option of such holder, the Corporate Trust Office, such
Note with the form entitled "Option to Elect Repayment Upon A Fundamental
Change" on the reverse thereof duly completed, together with such Notes duly
endorsed for transfer, on or before the Fundamental Change Expiration Time. In
order to exercise the repayment option with respect to any interest in a Note in
global form, the beneficial holder must comply with the applicable procedures of
the Depositary, furnish appropriate endorsements and documentation if required
by the Company or the Trustee or paying agent and such notice shall not have
been withdrawn.
All questions as to the validity, eligibility (including time of
receipt) and acceptance of any Note for repayment shall be determined by the
Company, whose determination shall be final and binding absent manifest error.
(d) On or before the Repurchase Date, subject to the
provisions of Article IV hereof, the Company will deposit with the Trustee or
with one or more paying agents (or, if the Company is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 5.4) an
amount of money sufficient to repay on the Repurchase Date all the Notes which
are to be repaid on such date at the appropriate redemption price, together with
accrued interest to, but excluding, the Repurchase Date; provided that if such
payment is made on the Repurchase Date it must be received by the Trustee or
paying agent, as the case may be, by 11:00 a.m. New York City time, on such
date. Payment for Notes
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surrendered for redemption (and not withdrawn) prior to the Fundamental Change
Expiration Time will be made promptly (but in no event more than five Business
Days) following the Repurchase Date by mailing checks for the amount payable to
the holders of such Notes entitled thereto as they shall appear on the Register;
provided, however, that payments to the Depositary will be made by wire transfer
of immediately available funds to the account of the Depositary or its nominee.
(e) In the case of a consolidation, merger, conveyance,
transfer or lease to which Section 15.6 applies, in which the Common Stock of
the Company is changed or exchanged as a result into the right to receive
securities, cash or other property which includes shares of Common Stock of the
Company or another Person that are, or upon issuance will be, traded on a United
States national securities exchange or approved for trading on an established
automated over-the-counter trading market in the United States and such shares
constitute at the time such change or exchange becomes effective in excess of
50% of the aggregate fair market value of such securities, cash and other
property (as determined by the Company, which determination shall be conclusive
and binding), then the Person formed by such consolidation or resulting from
such merger or which acquires such assets, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture (accompanied by an Opinion of
Counsel that such supplemental indenture complies with the Trust Indenture Act
as in force at the date of execution of such supplemental indenture) modifying
the provisions of this Indenture relating to the right of holders of the Notes
to cause the Company to repay the Notes following a Fundamental Change,
including without limitation the applicable provisions of this Section 3.5 and
the definitions of the Applicable Price, Common Stock, Fundamental Change and
Reference Market Price, as appropriate, as determined in good faith by the
Company (which determination shall be conclusive and binding), to make such
provisions apply to the common stock and the issuer thereof if different from
the Company and Common Stock of the Company (in lieu of the Company and the
Common Stock of the Company).
Section 3.6 Covenant to Comply with Securities Laws upon Purchase
of Notes. In connection with any offer to purchase or redemption of Notes under
Section 3.4 or 3.5 hereof, the Company shall (i) comply with Rule 13e-4 (which
term, as used herein, includes any successor provision thereto) under the
Exchange Act, if applicable, (ii) file the related Schedule 13E-4 (or any
successor schedule, form or report) under the Exchange Act, if applicable, and
(iii) otherwise comply with all Federal and state securities laws so as to
permit the rights and obligations under Section 3.5 to be exercised in the time
and in the manner specified in Section 3.5.
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Section 3.7 No Sinking Fund. The Notes shall not be entitled to
the benefit of any sinking fund.
ARTICLE IV
SUBORDINATION OF NOTES
Section 4.1 Agreement of Subordination. The Company covenants and
agrees, and each holder of Notes issued hereunder by such holder's acceptance
thereof likewise covenants and agrees, that all Notes shall be issued subject to
the provisions of this Article IV; and each Person holding any Note, whether
upon original issue or upon transfer or assignment thereof, accepts and agrees
to be bound by such provisions.
The payment of the principal of, premium, if any, and interest
(including Liquidated Damages, if any) on all Notes (including, but not limited
to, the redemption price with respect to the Notes called for redemption in
accordance with Section 3.2 or submitted for redemption in accordance with
Section 3.5, as the case may be, as provided in the Indenture) issued hereunder
shall, to the extent and in the manner hereinafter set forth, be subordinated
and subject in right of payment to the prior payment in full of all Senior
Indebtedness, whether outstanding at the date of this Indenture or thereafter
incurred.
No provision of this Article IV shall prevent the occurrence of
any default or Event of Default hereunder.
Section 4.2 Payments to Noteholders. No payment shall be made and
no funds shall be set aside for payment with respect to the principal of,
premium, if any, or interest (including Liquidated Damages, if any) on the Notes
(including, but not limited to, the redemption price with respect to the Notes
to be called for redemption in accordance with Section 3.2 or submitted for
redemption in accordance with Section 3.5, as the case may be, as provided in
this Indenture), except payments and distributions made by the Trustee as
permitted by the first or second paragraph of Section 4.5, if:
(i) a default in the payment when due, whether at maturity or
a date fixed for prepayment, or by declaration of acceleration or
otherwise, of principal, premium, if any, interest, rent or other
obligations in respect of Senior Indebtedness occurs and is continuing
(or, in the case of Senior Indebtedness for which there is a period of
grace, in the event of such a default that continues beyond the period
of grace, if any, specified in the instrument or lease evidencing such
Senior Indebtedness) (a "Payment Default"), unless and until such
Payment Default shall have been cured or waived or shall have ceased to
exist; or
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(ii) a default, other than a Payment Default, on any Designated
Senior Indebtedness occurs and is continuing that then permits holders
of such Designated Senior Indebtedness to accelerate its maturity and
the Trustee receives a notice of the default (a "Payment Blockage
Notice") from a holder of Designated Senior Indebtedness, a
Representative of Designated Senior Indebtedness or the Company (a
"Non-Payment Default").
If the Trustee receives any Payment Blockage Notice pursuant to
clause (ii) above, no subsequent Payment Blockage Notice shall be effective for
purposes of this Section 4.2 unless and until at least 365 days shall have
elapsed since the initial effectiveness of the immediately prior Payment
Blockage Notice. No Non-Payment Default that existed or was continuing on the
date of delivery of any Payment Blockage Notice to the Trustee shall be, or be
made, the basis for a subsequent Payment Blockage Notice.
The Company may and shall resume payments on and distributions in
respect of the Notes upon the earlier of:
(1) in the case of a Payment Default, the date upon which any
such Payment Default is cured or waived or ceases to exist, or
(2) in the case of a Non-Payment Default, the earlier of (a)
the date upon which such default is cured or waived or ceases to exist
or (b) 179 days after the date on which the applicable Payment Blockage
Notice is received if the maturity of such Designated Senior
Indebtedness has not been accelerated,
unless this Article IV otherwise prohibits the payment or distribution at the
time of such payment or distribution.
Upon any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding up or liquidation or reorganization of
the Company or any similar proceeding, or any assignment by the Company for the
benefit of its creditors or any other marshalling of the assets of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due or to become due upon all Senior Indebtedness
shall first be paid in full in cash or other payment satisfactory to the holders
of such Senior Indebtedness, or payment thereof in accordance with its terms
provided for in cash or other payment satisfactory to the holders of such Senior
Indebtedness before any payment is made on account of the principal of, premium,
if any, or interest (including Liquidated Damages, if any) on the Notes (except
payments made pursuant to Article XIII from monies deposited with the Trustee
pursuant thereto prior to commencement of proceedings for such dissolution,
winding up, liquidation or reorganization); and upon any such dissolution or
winding up or liquidation or reorganization of the Company or bankruptcy,
insolvency, receivership or other proceeding, any payment by the Company, or
distribution of assets of the
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Company of any kind or character, whether in cash, property or securities, to
which the holders of the Notes or the Trustee would be entitled, except for the
provision of this Article IV, shall (except as aforesaid) be paid by the Company
or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, or by the holders of the Notes or by
the Trustee under this Indenture if received by them or it, directly to the
holders of Senior Indebtedness (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness held by such holders, or as otherwise
required by law or a court order) or their representative or representatives, or
to the trustee or trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay all Senior Indebtedness in
full, in cash or other payment satisfactory to the holders of such Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Indebtedness, before any payment or distribution is
made to the holders of the Notes or to the Trustee.
For purposes of this Article IV, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article IV with respect
to the Notes to the payment of all Senior Indebtedness which may at the time be
outstanding; provided that (i) the Senior Indebtedness is assumed by the new
corporation, if any, resulting from any reorganization or readjustment, and (ii)
the rights of the holders of Senior Indebtedness (other than leases which are
not assumed by the Company or the new corporation, as the case may be) are not,
without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article XII shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 4.2
if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article XII.
In the event of the acceleration of the Notes because of an Event
of Default, no payment or distribution shall be made to the Trustee or any
holder of Notes in respect of the principal of, premium, if any, or interest
(including Liquidated Damages, if any) on the Notes (including, but not limited
to, the redemption price with respect to the Notes called for redemption in
accordance with Section 3.2 or submitted for redemption in accordance with
Section 3.5, as the case may be, as provided in the Indenture), except payments
and distributions made by the Trustee as permitted by the first or second
paragraph of Section 4.5, until all Senior Indebtedness has been paid in full in
cash or other payment satisfactory to the holders of Senior Indebtedness or such
acceleration is rescinded in accordance with the terms of this Indenture. If
payment of the Notes is accelerated because of an Event of Default, the Company
shall promptly notify holders of Senior Indebtedness of the acceleration.
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In the event that, notwithstanding the foregoing provisions, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (including, without limitation, by way
of setoff or otherwise), prohibited by the foregoing provisions in this Section
4.2, shall be received by the Trustee or the holders of the Notes before all
Senior Indebtedness is paid in full in cash or other payment satisfactory to the
holders of such Senior Indebtedness, or provision is made for such payment
thereof in accordance with its terms in cash or other payment satisfactory to
the holders of such Senior Indebtedness, such payment or distribution shall be
held in trust for the benefit of and shall be paid over or delivered to the
holders of Senior Indebtedness or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness may have been issued, as their respective
interests may appear, as calculated by the Company, for application to the
payment of any Senior Indebtedness remaining unpaid to the extent necessary to
pay all Senior Indebtedness in full in cash or other payment satisfactory to the
holders of such Senior Indebtedness, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Indebtedness.
Nothing in this Section 4.2 shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 8.6. This Section 4.2 shall be
subject to the further provisions of Section 4.5.
Section 4.3 Subrogation of Notes. Subject to the payment in full
of all Senior Indebtedness, the rights of the holders of the Notes shall be
subrogated to the extent of the payments or distributions made to the holders of
such Senior Indebtedness pursuant to the provisions of this Article IV (equally
and ratably with the holders of all indebtedness of the Company which by its
express terms is subordinated to other indebtedness of the Company to
substantially the same extent as the Notes are subordinated and is entitled to
like rights of subrogation) to the rights of the holders of Senior Indebtedness
to receive payments or distributions of cash, property or securities of the
Company applicable to the Senior Indebtedness until the principal of, premium,
if any, and interest (including Liquidated Damages, if any) on the Notes shall
be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property or
securities to which the holders of the Notes or the Trustee would be entitled
except for the provisions of this Article IV, and no payment over pursuant to
the provisions of this Article IV, to or for the benefit of the holders of
Senior Indebtedness by holders of the Notes or the Trustee, shall, as between
the Company, its creditors other than holders of Senior Indebtedness, and the
holders of the Notes, be deemed to be a payment by the Company to or on account
of the Senior Indebtedness; and no payments or distributions of cash, property
or securities to or for the benefit of the holders of the Notes pursuant to the
subrogation provisions of this Article IV, which would otherwise have been paid
to the holders of Senior Indebtedness, shall be deemed to be a payment by the
Company to or for the account of the Notes. It is understood that the provisions
of this Article IV are and are intended solely for the
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purpose of defining the relative rights of the holders of the Notes, on the one
hand, and the holders of the Senior Indebtedness, on the other hand.
Nothing contained in this Article IV or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
holders of the Notes, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Notes the principal of, premium, if
any, and interest (including Liquidated Damages, if any) on the Notes as and
when the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the holders of the Notes and
creditors of the Company other than the holders of the Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or the holder of any Note
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article IV of
the holders of Senior Indebtedness in respect of cash, property or securities of
the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article IV, the Trustee, subject to the provisions of
Section 8.1, and the holders of the Notes shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which such
bankruptcy, dissolution, winding-up, liquidation, insolvency, receivership or
reorganization proceedings or any similar proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making such payment or distribution, delivered to the Trustee or
to the holders of the Notes, for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article IV.
Section 4.4 Authorization by Noteholders. Each holder of a Note
by its acceptance thereof authorizes and directs the Trustee in such holder's
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article IV and appoints the Trustee to act as
such holder's attorney-in-fact for any and all such purposes. If the Trustee
does not file a proper proof of claim or proof of debt in the form required in
any proceeding referred to in the third paragraph of Section 7.2 hereof at least
thirty (30) days before the expiration of the time to file such claim, the
holders of any Senior Indebtedness or their representatives are hereby
authorized to file an appropriate claim for and on behalf of the holders of the
Notes.
Section 4.5 Notice to Trustee. The Company shall give prompt
written notice in the form of an Officers' Certificate to a Responsible Officer
of the Trustee and to any paying agent of any fact known to the Company which
would prohibit the making of any payment of monies to or by the Trustee or any
paying agent in respect of the Notes pursuant to the provisions of this Article
IV. Notwithstanding the provisions of this Article IV or any
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other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment of monies to or by the Trustee in respect of the Notes pursuant to the
provisions of this Article IV, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof at the Corporate Trust Office
from the Company (in the form of an Officers' Certificate) or a Representative
or a holder or holders of Senior Indebtedness or from any trustee therefor; and
before the receipt of any such written notice, the Trustee, subject to the
provisions of Section 8.1, shall be entitled in all respects to assume that no
such facts exist; provided that if on a date not fewer than two Business Days
prior to the date upon which by the terms hereof any such monies may become
payable for any purpose (including, without limitation, the payment of the
principal of, premium, if any, or interest (including Liquidated Damages, if
any) on any Note) the Trustee shall not have received, with respect to such
monies, the notice provided for in this Section 4.5, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such monies and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary
which may be received by it on or after such prior date.
Notwithstanding anything in this Article IV to the contrary,
nothing shall prevent any payment by the Trustee to the Noteholders of monies
deposited with it pursuant to Section 13.1, and any such payment shall not be
subject to the provisions of Section 4.1 or 4.2.
The Trustee, subject to the provisions of Section 8.1, shall be
entitled to rely on the delivery to it of a written notice by a Representative
or a Person representing himself to be a holder of Senior Indebtedness (or a
trustee on behalf of such holder) to establish that such notice has been given
by a Representative or a holder of Senior Indebtedness or a trustee on behalf of
any such holder or holders. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article IV, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article IV, and if such
evidence is not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 4.6 Trustee's Relation to Senior Indebtedness. The
Trustee in its individual capacity shall be entitled to all the rights set forth
in this Article IV in respect of any Senior Indebtedness at any time held by it,
to the same extent as any other holder of Senior Indebtedness, and nothing in
Section 8.13 or elsewhere in this Indenture shall deprive the Trustee of any of
its rights as such holder.
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With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article IV, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and, subject to the
provisions of Section 8.1, the Trustee shall not be liable to any holder of
Senior Indebtedness (i) for any failure to make any payments or distributions to
such holder or (ii) if it shall pay over or deliver to holders of Notes, the
Company or any other Person money or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article IV or otherwise.
Section 4.7 No Impairment of Subordination. No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
Section 4.8 Certain Conversions Deemed Payment. For the purposes
of this Article IV only, (1) the issuance and delivery of junior securities upon
conversion of Notes in accordance with Article XV shall not be deemed to
constitute a payment or distribution on account of the principal of, or premium,
if any, or interest (including Liquidated Damages, if any) on Notes or on
account of the purchase or other acquisition of Notes, and (2) the payment,
issuance or delivery of cash (except in satisfaction of fractional shares
pursuant to Section 15.2), property or securities (other than junior securities)
upon conversion of a Note shall be deemed to constitute payment on account of
the principal of, premium, if any, or interest (including Liquidated Damages, if
any) on such Note. For the purposes of this Section 4.8, the term "junior
securities" means (a) shares of any stock of any class of the Company, or (b)
securities of the Company which are subordinated in right of payment to all
Senior Indebtedness which may be outstanding at the time of issuance or delivery
of such securities to substantially the same extent as, or to a greater extent
than, the Notes are so subordinated as provided in this Article. Nothing
contained in this Article IV or elsewhere in this Indenture or in the Notes is
intended to or shall impair, as among the Company, its creditors (other than
holders of Senior Indebtedness) and the Noteholders, the right, which is
absolute and unconditional, of the holder of any Note to convert such Note in
accordance with Article XV.
Section 4.9 Article Applicable to Paying Agents. If at any time
any paying agent other than the Trustee shall have been appointed by the Company
and be then acting hereunder, the term "Trustee" as used in this Article shall
(unless the context otherwise requires) be construed as extending to and
including such paying agent within its meaning as fully for all intents and
purposes as if such paying agent were named in this Article in addition to or in
place of the Trustee; provided, however, that the first paragraph of Section 4.5
shall
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not apply to the Company or any Affiliate of the Company if it or such Affiliate
acts as paying agent.
The Trustee shall not be responsible for the actions or inactions
of any other paying agents (including the Company if acting as its own paying
agent) and shall have no control of any funds held by such other paying agents.
Section 4.10 Senior Indebtedness Entitled to Rely. The holders of
Senior Indebtedness (including, without limitation, Designated Senior
Indebtedness) shall have the right to rely upon this Article IV, and no
amendment or modification of the provisions contained herein shall diminish the
rights of such holders unless such holders shall have agreed in writing thereto.
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
Section 5.1 Payment of Principal, Premium and Interest. The
Company covenants and agrees that it will duly and punctually pay or cause to be
paid the principal of and premium, if any, and interest (including Liquidated
Damages, if any) on each of the Notes at the places, at the respective times and
in the manner provided herein and in the Notes. Each installment of interest on
the Notes due on any semi-annual interest payment date may be paid either (i) by
check mailed to the address of the Person entitled thereto as it appears on the
Register or (ii) by wire transfer for immediately available funds to an account
maintained by such Person located in the United States; provided, however, that
payments to the Depositary will be made by wire transfer of immediately
available funds to the account of the Depositary or its nominee.
Section 5.2 Offices for Notices and Payments. So long as any of
the Notes remain outstanding, the Company will maintain in New York, New York,
an office or agency where the Notes may be presented for payment, and an office
or agency where the Notes may be presented for registration of transfer and for
exchange and conversion as provided for in this Indenture and an office or
agency where notices and demands to or upon the Company in respect of the Notes
or of this Indenture may be served. The Company will give to the Trustee written
notice of the location of each such office or agency and of any change in the
location thereof. If the Company shall fail to maintain any such office or
agency or shall fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made and notices may be
served at the Corporate Trust Office and office of the Trustee at 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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The Company may also from time to time designate co-registrars
and one or more other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations. The Company will give prompt written notice of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Company hereby initially designates the Trustee as paying
agent, Note registrar, Custodian and conversion agent, and the Corporate Trust
Office and the office of the Trustee at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 as the offices of the Company for each of the aforesaid purposes.
So long as the Trustee is the Note registrar, the Trustee agrees
to mail, or cause to be mailed, the notices set forth in Section 8.10(a) and the
third paragraph of Section 8.11. If co-registrars have been appointed in
accordance with this Section, the Trustee shall only mail such notices to the
Company and the holders of Notes it can identify from its records.
Section 5.3 Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 8.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
Section 5.4 Provisions as to Paying Agent.
(a) If the Company shall appoint a paying agent other than the
Trustee, it will cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 5.4:
(1) that it will hold all sums held by it as such agent
for the payment of the principal of and premium, if any, or
interest (including Liquidated Damages, if any) on the Notes
(whether such sums have been paid to it by the Company or by any
other obligor on the Notes) in trust for the benefit of the
holders of the Notes;
(2) that it will give the Trustee notice of any failure
by the Company (or by any other obligor on the Notes) to make any
payment of the principal of and premium, if any, or interest
(including Liquidated Damages, if any) on the Notes when the same
shall be due and payable; and
(3) that at any time during the continuance of an Event
of Default, upon request of the Trustee, it will forthwith pay to
the Trustee all sums so held in trust.
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The Company shall, on or before each due date of the principal
of, premium, if any, or interest (including Liquidated Damages, if any)
on the Notes, deposit with the paying agent a sum sufficient to pay such
principal, premium, if any, or interest, and (unless such paying agent
is the Trustee) the Company will promptly notify the Trustee of any
failure to take such action.
(b) If the Company shall act as its own paying agent, it will,
on or before each due date of the principal of, premium, if any, or interest
(including Liquidated Damages, if any) on the Notes, set aside, segregate and
hold in trust for the benefit of the holders of the Notes a sum sufficient to
pay such principal, premium, if any, or interest (including Liquidated Damages,
if any) so becoming due and will notify the Trustee of any failure to take such
action and of any failure by the Company (or by any other obligor under the
Notes) to make any payment of the principal of, premium, if any, or interest
(including Liquidated Damages, if any) on the Notes when the same shall become
due and payable.
(c) Anything in this Section 5.4 to the contrary
notwithstanding, the Company may, at any time, for the purpose of obtaining a
satisfaction and discharge of this Indenture, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust by the Company or any
paying agent hereunder as required by this Section 5.4, such sums to be held by
the Trustee upon the trusts herein contained and upon such payment by the
Company or any paying agent to the Trustee, the Company or such paying agent
shall be released from all further liability with respect to such money.
Section 5.5 Corporate Existence. Subject to Article XII, the
Company will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence.
Section 5.6 Maintenance of Properties. The Company will cause all
properties used or useful in the conduct of its business or the business of any
of its subsidiaries to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the operation or maintenance of any of
such properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business or the business of any of its
subsidiaries and not disadvantageous in any material respect to the holders.
Section 5.7 Payment of Taxes and Other Claims. The Company will
pay or discharge, or cause to be paid or discharged, before the same may become
delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon the Company or any of its subsidiaries or upon the income, profits
or property of the Company or any of its
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subsidiaries, (ii) all claims for labor, materials and supplies which, if
unpaid, might by law become a lien or charge upon the property of the Company or
any of its subsidiaries and (iii) all stamps and other duties, if any, which may
be imposed by the United States or any political subdivision thereof or therein
in connection with the issuance, transfer, exchange or conversion of any Notes
or with respect to this Indenture; provided, however, that, in the case of
clauses (i) and (ii), the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim (A) if
the failure to do so will not, in the aggregate, have a material adverse impact
on the Company, or (B) if the amount, applicability or validity is being
contested in good faith by appropriate proceedings.
Section 5.8 Rule 144A Information Requirement. Within the period
prior to the expiration of the holding period applicable to sales thereof under
Rule 144(k) under the Securities Act (or any successor provision), the Company
covenants and agrees that it shall, during any period in which it is not subject
to Section 13 or 15(d) under the Exchange Act, make available to any holder or
beneficial holder of Notes or any Common Stock issued upon conversion thereof
which continue to be Restricted Securities in connection with any sale thereof
and any prospective purchaser of Notes or such Common Stock from such holder or
beneficial holder, the information required pursuant to Rule 144A(d)(4) under
the Securities Act upon the request of any holder or beneficial holder of the
Notes or such Common Stock and it will take such further action as any holder or
beneficial holder of such Notes or such Common Stock may reasonably request, all
to the extent required from time to time to enable such holder or beneficial
holder to sell its Notes or Common Stock without registration under the
Securities Act within the limitation of the exemption provided by Rule 144A, as
such Rule may be amended from time to time. Upon the request of any holder or
any beneficial holder of the Notes or such Common Stock, the Company will
deliver to such holder a written statement as to whether it has complied with
such requirements.
Section 5.9 Stay, Extension and Usury Laws. The Company covenants
(to the extent that it may lawfully do so) that it shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law or other law which would prohibit or
forgive the Company from paying all or any portion of the principal of or
interest (including Liquidated Damages, if any) on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture and the Company (to
the extent it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not, by resort to any such
law, hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law has been enacted.
Section 5.10 Compliance Certificate. The Company shall deliver to
the Trustee, within one hundred twenty (120) days after the end of each fiscal
year of the Company, a certificate signed by either the principal executive
officer, principal financial officer or principal accounting officer of the
Company, stating whether or not to the best
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knowledge of the signer 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 the signer may have knowledge.
The Company will deliver to the Trustee, forthwith upon becoming
aware of any default in the performance or observance of any covenant, agreement
or condition contained in this Indenture, or any Event of Default, an Officers'
Certificate specifying with particularity such default or Event of Default and
further stating what action the Company has taken, is taking or proposes to take
with respect thereto.
Any notice required to be given under this Section 5.10 shall be
delivered to the Trustee at its Corporate Trust Office.
ARTICLE VI
NOTEHOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 6.1 Noteholders' Lists. The Company covenants and agrees
that it will furnish or cause to be furnished to the Trustee, semiannually, not
more than fifteen (15) days after each March 15 and September 15 in each year
beginning with October 1, 1998, and at such other times as the Trustee may
request in writing, within thirty (30) days after receipt by the Company of any
such request, a list in such form as the Trustee may reasonably require of the
names and addresses of the holders of Notes as of a date not more than fifteen
days prior to the time such information is furnished, except that no such list
need be furnished so long as the Trustee is acting as Note registrar.
Section 6.2 Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of Notes contained in the most recent list furnished to it as provided
in Section 6.1 or maintained by the Trustee in its capacity as Note registrar in
respect of the Notes, if so acting. The Trustee may destroy any list furnished
to it as provided in Section 6.1 upon receipt of a new list so furnished.
(b) The rights of Noteholders to communicate with other
holders of Notes with respect to their rights under this Indenture or under the
Notes, and the corresponding rights and duties of the Trustee, shall be as
provided by the Trust Indenture Act.
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(c) If the Trustee shall be required by law to disclose any
information contained in any list of Noteholders maintained by it, then each and
every holder of the Notes by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any paying
agent nor the Note registrar shall be held accountable by reason of any
disclosure of information as to names and addresses of holders of Notes made
pursuant to the Trust Indenture Act.
Section 6.3 Reports by Trustee.
(a) Within 60 days after May 31 of each year commencing with
the year 1998, the Trustee shall transmit to holders of Notes such reports dated
as of May 31 of the year in which such reports are made concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of such report shall, at the time of such
transmission to holders of Notes, be filed by the Trustee with each stock
exchange and automated quotation system upon which the Notes are listed and with
the Company. The Company will notify the Trustee in writing within a reasonable
time when the Notes are listed on any stock exchange or automated quotation
system.
Section 6.4 Reports by Company. The Company shall file with the
Trustee (and the Commission if at any time after the Indenture becomes qualified
under the Trust Indenture Act), and transmit to holders of Notes, such
information, documents and other reports and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act, whether or not the Notes are governed by such
Act; provided that any such information, documents or reports required to be
filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within 15 days after the same is so required to
be filed with the Commission.
ARTICLE VII
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
IN THE EVENT OF DEFAULT
Section 7.1 Events of Default. In case one or more of the
following Events of Default (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) shall have occurred and
be continuing:
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(a) default in the payment of the principal of or premium, if
any (upon redemption or otherwise), on the Notes, whether or not such
payment is permitted under Article IV hereof; or
(b) default in the payment of any installment of interest
(including Liquidated Damages, if any), on the Notes as and when the
same shall become due and payable, and continuance of such default for a
period of thirty (30) days, whether or not such payment is permitted
under Article IV hereof; or
(c) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in the Notes or in this Indenture (other than a covenant or
agreement a default in whose performance or whose breach is elsewhere in
this Section 7.1 specifically dealt with) continued for a period of
sixty (60) days after the date on which written notice of such failure,
requiring the Company to remedy the same, shall have been given to the
Company by the Trustee, or to the Company and the Trustee by the holders
of at least 25% in aggregate principal amount of the Notes at the time
outstanding determined in accordance with Section 9.4; or
(d) the Company or any of its subsidiaries shall have
commenced a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian, or other similar official of it or any substantial part of
its property, or shall have consented to any such relief or to the
appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it, or shall make
a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due; or
(e) an involuntary case or other proceeding shall be commenced
against the Company or any of its subsidiaries seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property,
and such involuntary case or other proceeding shall remain undismissed
and unstayed for a period of ninety (90) consecutive days; or
(f) failure by the Company to make any payment at maturity,
including any applicable grace period, in respect of Indebtedness in an
outstanding principal amount in excess of $25.0 million in the aggregate
for all such issues and continuance of such failure for a period of 45
days after written notice thereof to the Company by the Trustee, or to
the Company and the Trustee by the holders of not less than 25% in
principal amount of the Notes then outstanding; or
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(g) default with respect to any Indebtedness of the Company or
any of its subsidiaries, which default results in the acceleration of
Indebtedness in an amount in excess of $25.0 million in the aggregate
for all such issues of all such Persons without such Indebtedness having
been discharged or such acceleration having been cured, waived,
rescinded or annulled for a period of 45 days after written notice
thereof to the Company by the Trustee, or to the Company and the Trustee
by the holders of not less than 25% in principal amount of the Notes;
then and in each and every such case (other than an Event of Default specified
in Section 7.1(d) or (e)), unless the principal of all of the Notes shall have
already become due and payable, either the Trustee or the holders of not less
than 25 percent in aggregate principal amount of the Notes then outstanding
hereunder determined in accordance with Section 9.4, by notice in writing to the
Company (and to the Trustee if given by Noteholders), may declare the principal
of, and premium, if any, on, all the Notes and the interest (including
Liquidated Damages, if any) accrued thereon to be due and payable immediately,
and upon any such declaration the same shall become and shall be immediately due
and payable, anything in this Indenture or in the Notes contained to the
contrary notwithstanding. If an Event of Default specified in Section 7.1(d) or
(e) occurs, the principal of all the Notes and the interest accrued thereon
(including Liquidated Damages, if any) shall be immediately and automatically
due and payable without necessity of further action. This provision, however, is
subject to the condition that if, at any time after the principal of the Notes
shall have been so declared due and payable, and before any judgment or decree
for the payment of the monies due shall have been obtained or entered as
hereinafter provided, subject to the provisions of Article IV hereof, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest (including Liquidated Damages, if any) upon all
the Notes and the principal of and premium, if any, on any and all Notes which
shall have become due otherwise than by acceleration (with interest on overdue
installments of interest (including Liquidated Damages, if any) (to the extent
that payment of such interest is enforceable under applicable law) and on such
principal and premium, if any, at the rate borne by the Notes, to the date of
such payment or deposit) and amounts due to the Trustee pursuant to Section 8.6,
and if any and all defaults under this Indenture, other than the nonpayment of
principal of and premium, if any, and accrued interest (including Liquidated
Damages, if any) on Notes which shall have become due by acceleration, shall
have been cured or waived pursuant to Section 7.7 -- then and in every such case
the holders of a majority in aggregate principal amount of the Notes then
outstanding, by written notice to the Company and to the Trustee, may waive all
defaults or Events of Default and rescind and annul such declaration and its
consequences; but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or Event of Default, or shall impair any
right consequent thereon. The Trustee shall not be charged with knowledge and
shall not be deemed to have notice of any default or Event of Default, except an
Event of Default under Section 7.1(a) or (b) in cases where the Trustee is
acting as paying agent, unless written notice thereof stating that such notice
is a "Notice of Default" shall have been given to a Responsible Officer by the
Company or a Noteholder or
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any agent of a Noteholder; and, in the absence of such written notice, the
Trustee may conclusively assume that there is no default or Event of Default.
In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such waiver or rescission and annulment or for any other
reason or shall have been determined adversely to the Trustee, then and in every
such case the Company, the holders of Notes, and the Trustee shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the holders of Notes, and the Trustee shall
continue as though no such proceeding had been taken.
Section 7.2 Payment of Notes on Default; Suit Therefor. The
Company covenants that (a) in case default shall be made in the payment of any
installment of interest (including Liquidated Damages, if any) upon any of the
Notes as and when the same shall become due and payable, and such default shall
have continued for a period of thirty (30) days, or (b) in case default shall be
made in the payment of the principal of or premium, if any, on any of the Notes
as and when the same shall have become due and payable, whether at maturity of
the Notes, or in connection with any redemption, by declaration or otherwise --
then, upon demand of the Trustee, subject to the provisions of Article IV
hereof, the Company will pay to the Trustee, for the benefit of the holders of
the Notes, the whole amount that then shall have become due and payable on all
such Notes for principal and premium, if any, or interest (including Liquidated
Damages, if any), or both, as the case may be, with interest upon the overdue
principal and premium, if any, and (to the extent that payment of such interest
is enforceable under applicable law) upon the overdue installments of interest
(including Liquidated Damages, if any) at the rate borne by the Notes; and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including a reasonable compensation to the Trustee,
its agents, attorneys and counsel, and any expenses or liabilities incurred by
the Trustee hereunder other than through its negligence or bad faith. Until such
demand by the Trustee, the Company may pay the principal of and premium, if any,
and interest (including Liquidated Damages, if any) on the Notes to the
registered holders, whether or not the Notes are overdue.
In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce any
such judgment or final decree against the Company or any other obligor on the
Notes and collect in the manner provided by law out of the property of the
Company or any other obligor on the Notes wherever situated the monies adjudged
or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or
for the reorganization of the Company or any other obligor on the Notes under
Title 11 of the United
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States Code, or any other applicable law, or in case a receiver, assignee or
trustee in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Company or
such other obligor, the property of the Company or such other obligor, or in the
case of any other similar judicial proceedings relative to the Company or such
other obligor upon the Notes, or to the creditors or property of the Company or
such other obligor, the Trustee, irrespective of whether the principal of the
Notes 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
pursuant to the provisions of this Section 7.2, shall be entitled and empowered,
by intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal, premium, if any, and interest
(including Liquidated Damages, if any) owing and unpaid in respect of the Notes,
and, in case of any judicial proceedings, to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee and of the Noteholders allowed in such judicial proceedings
relative to the Company or any other obligor on the Notes, its or their
creditors, or its or their property, and to collect and receive any monies or
other property payable or deliverable on any such claims, and to distribute the
same after the deduction of any amounts due the Trustee under Section 8.6; and
any receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
custodian or similar official is hereby authorized by each of the Noteholders 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 Noteholders, to pay to
the Trustee any amount due it for compensation, expenses, advances and
disbursements including counsel fees incurred by it up to the date of such
distribution. To the extent that such payment of reasonable compensation,
expenses, advances and disbursements out of the estate in any such proceedings
shall be denied for any reason, payment of the same shall be secured by a lien
on, and shall be paid out of, any and all distributions, dividends, monies,
securities and other property which the holders of the Notes may be entitled to
receive in such proceedings, whether in liquidation or under any plan of
reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or adopt on behalf of any Noteholder any plan of
reorganization or arrangement, affecting the Notes or the rights of any
Noteholder, or to authorize the Trustee to vote in respect of the claim of any
Noteholder in any such proceeding.
All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Trustee without the
possession of any of the Notes, or the production thereof for any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the holders of the Notes.
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In any proceedings brought by the Trustee (and in any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Notes, and it shall not be necessary to make any holders of the Notes
parties to any such proceedings.
Section 7.3 Application of Monies Collected by Trustee. Any
monies collected by the Trustee pursuant to this Article VII shall be applied in
the order following, at the date or dates fixed by the Trustee for the
distribution of such monies, upon presentation of the several Notes, and
stamping thereon the payment, if only partially paid, and upon surrender thereof
if fully paid:
First: To the payment of all amounts due the Trustee under
Section 8.6;
Second: Subject to the provisions of Article IV, in case
the principal of the outstanding Notes shall not have become due and be
unpaid, to the payment of interest (including Liquidated Damages, if
any) on the Notes then owing and unpaid in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest (including Liquidated Damages, if any) at the
rate borne by the Notes, such payments to be made ratably to the Persons
entitled thereto;
Third: Subject to the provisions of Article IV, in case
the principal of the outstanding Notes shall have become due, by
declaration or otherwise, and be unpaid to the payment of the whole
amount then owing and unpaid upon the Notes for principal and premium,
if any, and interest (including Liquidated Damages, if any), with
interest on the overdue principal and premium, if any, and (to the
extent that such interest has been collected by the Trustee) upon
overdue installments of interest (including Liquidated Damages, if any)
at the rate borne by the Notes; and in case such monies shall be
insufficient to pay in full the whole amounts so due and unpaid upon the
Notes, then to the payment of such principal and premium, if any, and
interest (including Liquidated Damages, if any) without preference or
priority of principal and premium, if any, over interest (including
Liquidated Damages, if any), or of interest (including Liquidated
Damages, if any) over principal and premium, if any, or of any
installment of interest over any other installment of interest, or of
any Note over any other Note, ratably to the aggregate of such principal
and premium, if any, and accrued and unpaid interest (including
Liquidated Damages, if any); and
Fourth: Subject to the provisions of Article IV, to the
payment of the remainder, if any, to the Company or any other Person
lawfully entitled thereto.
Section 7.4 Proceedings by Noteholder. No holder of any Note
shall have any right by virtue of or by availing of any provision of this
Indenture to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Indenture, or for
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the appointment of a receiver, trustee, liquidator, custodian or other similar
official, or for any other remedy hereunder, unless such holder previously shall
have given to the Trustee written notice of an Event of Default and of the
continuance thereof, as hereinbefore provided, and unless also the holders of
not less than 25 percent in aggregate principal amount of the Notes then
outstanding hereunder determined in accordance with Section 9.4 shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for sixty (60)
days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding and
no direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 7.7; it being understood and intended, and being
expressly covenanted by the taker and holder of every Note with every other
taker and holder and the Trustee, that no one or more holders of Notes shall
have any right in any manner whatsoever by virtue of or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other holder of Notes, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Notes (except as otherwise provided herein).
For the protection and enforcement of this Section 7.4, each and every
Noteholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Notwithstanding any other provisions of this Indenture and any
provision of any Note, the right of any holder of any Note to receive payment of
the principal of and premium, if any, and interest (including Liquidated
Damages, if any) on such Note, on or after the respective due dates expressed in
such Note, or to institute suit for the enforcement of any such payment on or
after such respective dates against the Company shall not be impaired or
affected without the consent of such holder.
Anything in this Indenture or the Notes to the contrary
notwithstanding, the holder of any Note, without the consent of either the
Trustee or the holder of any other Note, in his own behalf and for his own
benefit, may enforce, and may institute and maintain any proceeding suitable to
enforce, his rights of conversion as provided herein.
Section 7.5 Proceedings by Trustee. In case of an Event of
Default hereunder the Trustee may in its discretion proceed to protect and
enforce the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
of such rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
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Section 7.6 Remedies Cumulative and Continuing. Except as
provided in Section 2.6, all powers and remedies given by this Article VII to
the Trustee or to the Noteholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the holders of the Notes, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture, and no delay or omission
of the Trustee or of any holder of any of the Notes to exercise any right or
power accruing upon any default or Event of Default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 7.4, every power and remedy given by this Article VII or
by law to the Trustee or to the Noteholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the Noteholders.
Section 7.7 Direction of Proceedings and Waiver of Defaults by
Majority of Noteholders. The holders of a majority in aggregate principal amount
of the Notes at the time outstanding determined in accordance with Section 9.4
shall have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee; provided, however, that (subject to the
provisions of Section 8.1) (a) such direction shall not be in conflict with any
rule of law or with this Indenture, (b) the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction and
(c) the Trustee may decline to take any action that would benefit some
Noteholder to the detriment of other Noteholders. The holders of a majority in
aggregate principal amount of the Notes at the time outstanding determined in
accordance with Section 9.4 may on behalf of the holders of all of the Notes
waive any past default or Event of Default hereunder and its consequences except
(i) a default in the payment when due of interest or premium, if any, on, or the
principal of, the Notes, (ii) a failure by the Company to convert any Notes into
Common Stock, (iii) a default in the payment of redemption price pursuant to
Article III or (iv) a default in respect of a covenant or provision hereof which
under Article XI cannot be modified or amended without the consent of the
holders of all Notes then outstanding. Upon any such waiver the Company, the
Trustee and the holders of the Notes shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Whenever any default or Event of Default hereunder shall have been
waived as permitted by this Section 7.7, said default or Event of Default shall
for all purposes of the Notes and this Indenture be deemed to have been cured
and to be not continuing; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Section 7.8 Notice of Defaults. The Trustee shall, within sixty
(60) days after the occurrence of a default, mail to all Noteholders, as the
names and addresses of such holders appear upon the Register, notice of all
defaults actually known to a Responsible Officer of the Trustee, unless such
defaults shall have been cured or waived before the giving of such notice (the
term "defaults" for the purpose of this Section 7.8 being hereby defined to be
the
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events specified in clauses (a), (b), (c), (d), (e), (f) and (g) of Section 7.1,
not including periods of grace, if any, or the giving of any notice, or both
provided for therein); and provided that, except in the case of default in the
payment when due of the principal of or premium, if any, or interest (including
Liquidated Damages, if any) on any of the Notes, the Trustee shall be protected
in withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Noteholders.
Section 7.9 Undertaking to Pay Costs. All parties to this
Indenture agree, and each holder of any Note by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; provided, that the provisions of this Section 7.9 shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Noteholder, or group of Noteholders, holding in the aggregate more than ten
percent in principal amount of the Notes at the time outstanding determined in
accordance with Section 9.4, or to any suit instituted by any Noteholder for the
enforcement of the payment of the principal of or premium, if any, or interest
on any Note on or after the due date expressed in such Note or to any suit for
the enforcement of the right to convert any Note in accordance with the
provisions of Article XV.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.1 Duties and Responsibilities of Trustee. The Trustee,
prior to the occurrence of an Event of Default and after the curing of all
Events of Default which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture. In case an
Event of Default has occurred (which has not been cured or waived) the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
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(a) prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have
occurred:
(1) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture and
the Trust Indenture Act, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture and no implied covenants
or obligations shall be read into this Indenture and the Trust
Indenture Act against the Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any 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 provisions hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements
of this Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the holders of not less than a majority in
principal amount of the Notes at the time outstanding determined as
provided in Section 9.4 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture; and
(d) whether or not therein provided, every provision of
this Indenture relating to the conduct or affecting the liability of, or
affording protection to, the Trustee shall be subject to the provisions
of this Section.
None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers.
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Section 8.2 Reliance on Documents, Opinions, Etc. Except as
otherwise provided in Section 8.1,
(a) the Trustee may rely and shall be protected in
acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, debenture, coupon or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
Secretary or the Treasurer of the Company;
(c) the Trustee may consult with counsel and any advice
or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or omitted by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(d) 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 Noteholders pursuant to
the provisions of this Indenture, unless such Noteholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of Default, 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, consent, order, approval, bond,
debenture, coupon or other paper or document unless requested in writing
to do so by the holders of not less than a majority in principal amount
of the Notes then outstanding, provided that the Trustee may, in its
discretion, 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, during
regular business hours and after two days prior written notice to
examine the books, records and premises of the Company personally or by
agent or attorney; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of any investigation pursuant
to this clause (f) is, in the opinion of the Trustee, not reasonably
assured to the
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Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expense or
liability as a condition to so proceeding; the reasonable expenses of
every such examination shall be paid by the Company or, if paid by the
Trustee or any predecessor Trustee, shall be repaid by the Company upon
demand;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed by it with due care hereunder;
(h) the permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty unless so
specified herein;
(i) before the Trustee acts or refrains from acting, it
may require an Officer's Certificate or an Opinion of Counsel or both
and the Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such certificate or Opinion of
Counsel; and
(j) except as otherwise expressly provided herein, the
Trustee shall not be bound to ascertain or inquire as to the performance
of observance of any of the terms, conditions, covenants or agreements
herein or of any of the documents executed in connection with the Notes
or as to the existence of an Event of Default thereunder.
Section 8.3 No Responsibility for Recitals, Etc. The recitals
contained herein and in the Notes (except in the Trustee's certificate of
authentication) shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity, sufficiency or priority of this Indenture or
of the Notes. The Trustee shall not be accountable for the use or application by
the Company of any Notes or the proceeds of any Notes authenticated and
delivered by the Trustee in conformity with the provisions of this Indenture.
Section 8.4 Trustee, Paying Agents, Conversion Agents or
Registrar May Own Notes. The Trustee, any paying agent, any conversion agent or
Note registrar, in its individual or any other capacity, may become the owner or
pledgee of Notes with the same rights it would have if it were not Trustee,
paying agent, conversion agent or Note registrar.
Section 8.5 Monies to Be Held in Trust. Subject to the provisions
of Section 13.4 and Section 4.2, all monies received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder.
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Section 8.6 Compensation and Expenses of Trustee. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation for all services rendered by it
hereunder in any capacity (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust), and the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel, its agents and of all Persons
not regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Company also covenants to
indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense (including attorneys' fees and expenses) incurred without negligence
or bad faith on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the costs and expenses
of enforcing the Indenture against the Company (including this Section 8.6) and
defending itself against or investigating any claim (whether asserted by the
Company, any holder or other Person). The obligations of the Company under this
Section 8.6 to compensate or indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall be secured by a lien
prior to that of the Notes upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the holders of
particular Notes. The obligation of the Company under this Section 8.6 and the
liens created hereunder shall survive the resignation or removal of the Trustee,
the satisfaction and discharge of this Indenture and the termination of this
Indenture. All indemnifications and releases from liability granted herein to
the Trustee shall extend to the directors, officers, employees and agents of the
Trustee and to the Paying Agent and Note registrar.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 7.1(d) or (e) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any bankruptcy law.
Section 8.7 Officers' Certificate and Opinion of Counsel as
Evidence. Whenever in the administration of the provisions of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or omitting any action hereunder, such matter
(unless additional evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate or an Opinion of Counsel or both delivered to the Trustee, such
certificate or opinion, in the absence of negligence or bad faith on the part of
the Trustee, shall be full warrant to the Trustee for any action taken or
omitted by it under the provisions of this Indenture upon the faith thereof.
Section 8.8 Conflicting Interests of Trustee. If the Trustee has
or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall
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either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.
Section 8.9 Eligibility of Trustee. There shall at all times be a
Trustee hereunder which shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has (or, in the case of a corporation included
in a bank holding company system, the related bank holding company shall have) a
combined capital and surplus of at least $50,000,000. If such Person or bank
holding company publishes reports of condition at least annually, pursuant to
law or to the requirements of any supervising or examining authority (or bank
holding company), then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 8.10 Resignation or Removal of Trustee.
(a) The Trustee may at any time resign by giving written
notice of such resignation to the Company and by mailing notice
thereof to the holders of Notes at their addresses as they shall
appear on the Register. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor
trustee by written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and
have accepted appointment within sixty (60) days after the
mailing of such notice of resignation to the Noteholders, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any
Noteholder who has been a bona fide holder of a Note or Notes for
at least six months may, subject to the provisions of Section
7.9, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall
occur:
(1) the Trustee shall fail to comply with Section
8.8 after written request therefor by the Company or by any
Noteholder who has been a bona fide holder of a Note or Notes for
at least six months; or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.9 and shall fail to
resign after written request therefor by the Company or by any
such Noteholder, or
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(3) the Trustee shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 7.9, any Noteholder who has been a bona fide holder of a
Note or Notes for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of
the Notes at the time outstanding may at any time remove the Trustee and
nominate a successor trustee which shall be deemed appointed as successor
trustee unless within ten (10) days after notice to the Company of such
nomination the Company objects thereto, in which case the Trustee so removed or
any Noteholder, upon the terms and conditions and otherwise as in Section
8.10(a) provided, may petition any court of competent jurisdiction for an
appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this Section 8.10
shall become effective upon acceptance of appointment by the successor trustee
as provided in Section 8.11.
Section 8.11 Acceptance by Successor Trustee. Any successor
trustee appointed as provided in Section 8.10 shall execute, acknowledge and
deliver to the Company and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written request
of the Company or of the successor trustee, the trustee ceasing to act shall,
upon payment of any amounts then due it pursuant to the provisions of Section
8.6, execute and deliver an instrument transferring to such successor trustee
all the rights and powers of the trustee so ceasing to act. Upon request of any
such successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by such
trustee as such trustee to secure any amounts then due it pursuant to the
provisions of Section 8.6.
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No successor trustee shall accept appointment as provided in this
Section 8.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 8.8 and be eligible under the
provisions of Section 8.9.
Upon acceptance of appointment by a successor trustee as provided
in this Section 8.11, the Company (or the former trustee) shall mail or cause to
be mailed notice of the succession of such trustee hereunder to the holders of
Notes at their addresses as they shall appear on the Register. If the Company
fails to mail such notice within ten (10) days after acceptance of appointment
by the successor trustee, the successor trustee shall cause such notice to be
mailed at the expense of the Company.
Section 8.12 Succession by Merger, Etc. Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the trust business of the Trustee
(including any trust created by this Indenture), shall be the successor to the
Trustee hereunder without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided that in the case of any
corporation succeeding to all or substantially all of the trust business of the
Trustee such corporation shall be qualified under the provisions of Section 8.8
and eligible under the provisions of Section 8.9.
In case at the time such successor to the Trustee shall succeed
to the trusts created by this Indenture any of the Notes shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor trustee or authenticating agent
appointed by such predecessor trustee, and deliver such Notes so authenticated;
and in case at that time any of the Notes shall not have been authenticated, any
successor to the Trustee or an authenticating agent appointed by such successor
trustee may authenticate such Notes either in the name of any predecessor
trustee hereunder or in the name of the successor trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or
in this Indenture provided that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
Section 8.13 Limitation on Rights of Trustee as Creditor. If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Notes), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of the claims against the Company
(or any such other obligor).
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ARTICLE IX
CONCERNING THE NOTEHOLDERS
Section 9.1 Action by Noteholders. Whenever in this Indenture it
is provided that the holders of a specified percentage in aggregate principal
amount of the Notes may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action, the holders of
such specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by Noteholders
in person or by agent or proxy appointed in writing, or (b) by the record of the
holders of Notes voting in favor thereof at any meeting of Noteholders duly
called and held in accordance with the provisions of Article X, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of Noteholders. Whenever the Company or the Trustee solicits the taking
of any action by the holders of the Notes, the Company or the Trustee may fix in
advance of such solicitation, a date as the record date for determining holders
entitled to take such action. The record date shall be not more than fifteen
(15) days prior to the date of commencement of solicitation of such action.
Section 9.2 Proof of Execution by Noteholders. Subject to the
provisions of Sections 8.1, 8.2 and 10.5, proof of the execution of any
instrument by a Noteholder or his agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Notes shall be proved by the registry of such Notes or by a
certificate of the Note registrar.
The record of any Noteholders' meeting shall be proved in the
manner provided in Section 10.6.
Section 9.3 Who Are Deemed Absolute Owners. The Company, the
Trustee, any authentication agent, any paying agent, any conversion agent and
any Note registrar may deem the Person in whose name such Note shall be
registered upon the Register to be, and may treat him as, the absolute owner of
such Note (whether or not such Note shall be overdue and notwithstanding any
notation of ownership or other writing thereon made by anyone other than the
Company or any Note registrar) for the purpose of receiving payment of or on
account of the principal of and premium, if any, and interest on such Note, for
conversion of such Note and for all other purposes; and neither the Company nor
the Trustee nor any other authenticating agent nor any paying agent nor any
conversion agent nor any Note registrar shall be affected by any notice to the
contrary. All such payments so made to any holder for the time being, or upon
his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for monies payable upon any
such Note.
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Section 9.4 Company-Owned Notes Disregarded. In determining
whether the holders of the requisite aggregate principal amount of Notes have
concurred in any direction, consent, waiver or other action under this
Indenture, Notes which are owned by the Company or any other obligor on the
Notes or any Affiliate of the Company or any other obligor on the Notes shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination; provided that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, consent, waiver or other
action only Notes which a Responsible Officer knows are so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as outstanding for the purposes of this Section 9.4 if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's right to vote
such Notes and that the pledgee is not the Company, any other obligor on the
Notes or any Affiliate of the Company or any such other obligor. In the case of
a dispute as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee. Upon request of the Trustee,
the Company shall furnish to the Trustee promptly an Officers' Certificate
listing and identifying all Notes, if any, known by the Company to be owned or
held by or for the account of any of the above described persons; and, subject
to Section 8.1, the Trustee shall be entitled to accept such Officers'
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Notes not listed therein are outstanding for the purpose of any
such determinations.
Section 9.5 Revocation of Consents; Future Holders Bound. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 9.1, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Notes specified in this Indenture in
connection with such action, any holder of a Note which is shown by the evidence
to be included in the Notes the holders of which have consented to such action
may, by filing written notice with the Trustee at the Corporate Trust Office and
upon proof of holding as provided in Section 9.2, revoke such action so far as
concerns such Note. Except as aforesaid, any such action taken by the holder of
any Note shall be conclusive and binding upon such holder and upon all future
holders and owners of such Note and of any Notes issued in exchange or
substitution therefor, irrespective of whether any notation in regard thereto is
made upon such Note or any Note issued in exchange or substitution therefor.
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ARTICLE X
NOTEHOLDERS' MEETINGS
Section 10.1 Purposes of Meetings. A meeting of Noteholders may
be called at any time and from time to time pursuant to the provisions of this
Article X for any of the following purposes:
(1) to give any notice to the Company or to the Trustee or to
give any directions to the Trustee, or to consent to the waiving of any
default hereunder and its consequences, or to take any other action
authorized to be taken by Noteholders pursuant to any of the provisions
of Article VII;
(2) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article VIII;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.2; or
(4) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount of the
Notes under any other provision of this Indenture or under applicable
law.
Section 10.2 Call of Meetings by Trustee. The Trustee may at any
time call a meeting of Noteholders to take any action specified in Section 10.1,
to be held at such time and at such place as the Trustee shall determine. Notice
of every meeting of the Noteholders, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting and the establishment of any record date pursuant to Section 9.1, shall
be mailed to holders of Notes at their addresses as they shall appear on the
Register. Such notice shall also be mailed to the Company. Such notices shall be
mailed not less than twenty (20) nor more than ninety (90) days prior to the
date fixed for the meeting.
Any meeting of Noteholders shall be valid without notice if the
holders of all Notes then outstanding are present in person or by proxy or if
notice is waived before or after the meeting by the holders of all Notes
outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.
Section 10.3 Call of Meetings by Company or Noteholders. In case
at any time the Company, pursuant to a resolution of its Board of Directors, or
the holders of at least ten percent in aggregate principal amount of the Notes
then outstanding, shall have requested the Trustee to call a meeting of
Noteholders, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the
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notice of such meeting within twenty (20) days after receipt of such request,
then the Company or such Noteholders may determine the time and the place for
such meeting and may call such meeting to take any action authorized in Section
10.1, by mailing notice thereof as provided in Section 10.2.
Section 10.4 Qualifications for Voting. To be entitled to vote at
any meeting of Noteholders a Person shall (a) be a holder of one or more Notes
or (b) be a Person appointed by an instrument in writing as proxy by a holder of
one or more Notes. The only Persons who shall be entitled to be present or to
speak at any meeting of Noteholders shall be the Persons entitled to vote at
such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
Section 10.5 Regulations. Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Noteholders, in regard to proof of the holding of
Notes and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Noteholders as provided in Section 10.3, in which case the
Company or the Noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount of the Notes represented at the meeting and entitled to vote
at the meeting.
Subject to the provisions of Section 9.4, at any meeting each
Noteholder or proxyholder shall be entitled to one vote for each $1,000
principal amount of Notes held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Note challenged
as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Notes held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other Noteholders. Any
meeting of Noteholders duly called pursuant to the provisions of Section 10.2 or
10.3 may be adjourned from time to time by a majority of those present, whether
or not constituting a quorum, and the meeting may be held as so adjourned
without further notice.
Section 10.6 Voting. The vote upon any resolution submitted to
any meeting of Noteholders shall be by written ballot on which shall be
subscribed the signatures of the holders of Notes or of their representatives by
proxy and the principal amount of the Notes held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in
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duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Noteholders shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was mailed as provided in
Section 10.2. The record shall show the principal amount of the Notes voting in
favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
Section 10.7 No Delay of Rights by Meeting. Nothing in this
Article X contained shall be deemed or construed to authorize or permit, by
reason of any call of a meeting of Noteholders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Noteholders under any of the provisions of this Indenture or of the Notes.
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.1 Supplemental Indentures Without Consent of
Noteholders. The Company, when authorized by the resolutions of the Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to make provision with respect to the conversion
rights of the holders of Notes pursuant to the requirements of Section
15.6 and the redemption obligations of the Company pursuant to the
requirements of Section 3.5(e);
(b) subject to Article IV, to convey, transfer, assign,
mortgage or pledge to the Trustee as security for the Notes, any
property or assets;
(c) to evidence the succession of another corporation
to the Company, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Company pursuant to Article XII;
(d) to add to the covenants of the Company such further
covenants, restrictions or conditions as the Board of Directors and the
Trustee shall consider to be
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for the benefit of the holders of Notes, and to make the occurrence,
or the occurrence and continuance, of a default in any such additional
covenants, restrictions or conditions a default or an Event of Default
permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that
in respect of any such additional covenant, restriction or condition
such supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to the
Trustee upon such default;
(e) to provide for the issuance under this Indenture of
Notes in coupon form (including Notes registrable as to principal only)
and to provide for exchangeability of such Notes with the Notes issued
hereunder in fully registered form and to make all appropriate changes
for such purpose;
(f) to cure any ambiguity or to correct or supplement
any provision contained herein or in any supplemental indenture which
may be defective or inconsistent with any other provision contained
herein or in any supplemental indenture, or to make such other
provisions in regard to matters or questions arising under this
Indenture which shall not adversely affect the interests of the holders
of the Notes in any material respect;
(g) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Notes;
or
(h) to modify, eliminate or add to the provisions of
this Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the Trust Indenture Act, or under
any similar federal statute hereafter enacted.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the Trustee
shall not be obligated to, but may in its discretion, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 11.1 may be executed by the Company and the Trustee without the consent
of the holders of any of the Notes at the time outstanding, notwithstanding any
of the provisions of Section 11.2.
Section 11.2 Supplemental Indentures with Consent of Noteholders.
With the consent (evidenced as provided in Article IX) of the holders of not
less than a majority in aggregate principal amount of the Notes at the time
outstanding, the Company, when
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authorized by the resolutions of the Board of Directors, and the Trustee may
from time to time and at any time enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Notes; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any Note, or reduce the rate or extend the time of
payment of interest thereon, or reduce the principal amount thereof or premium,
if any, thereon, or reduce any amount payable on redemption thereof, or impair
or affect the right of any Noteholder to institute suit for the payment thereof,
or make the principal thereof or interest (including Liquidated Damages, if any)
or premium, if any, thereon payable in any coin or currency other than that
provided in the Notes, or modify the provisions of this Indenture with respect
to the subordination of the Notes in a manner adverse to the Noteholders, or
change the obligation of the Company to redeem any Note upon the happening of a
Fundamental Change in a manner adverse to the holder of Notes, or impair the
right to convert the Notes into Common Stock subject to the terms set forth
herein, including Section 15.6, without the consent of the holder of each Note
so affected, or (ii) reduce the aforesaid percentage of Notes, the holders of
which are required to consent to any such supplemental indenture, without the
consent of the holders of all Notes then outstanding.
Upon the request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by its Secretary or Treasurer
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Noteholders as aforesaid,
the Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Noteholders
under this Section 11.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
Section 11.3 Effect of Supplemental Indenture. Any supplemental
indenture executed pursuant to the provisions of this Article XI shall comply
with the Trust Indenture Act, as then in effect; provided that this Section 11.3
shall not require such supplemental indenture or the Trustee to be qualified
under the Trust Indenture Act prior to the time such qualification is in fact
required under the terms of the Trust Indenture Act or the Indenture has been
qualified under the Trust Indenture Act, nor shall it constitute any admission
or acknowledgment by any party to such supplemental indenture that any such
qualification is required prior to the time such qualification is in fact
required under the terms of the Trust Indenture Act or the Indenture has been
qualified under the Trust Indenture Act. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article XI, this Indenture shall be
and be deemed to be modified and amended in accordance therewith and the
respective rights, limitation of rights, obligations, duties and immunities
under this Indenture
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of the Trustee, the Company and the holders of Notes shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section 11.4 Notation on Notes. Notes authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of
this Article XI may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by the
Company, authenticated by the Trustee (or an authenticating agent duly appointed
by the Trustee pursuant to Section 16.11) and delivered in exchange for the
Notes then outstanding, upon surrender of such Notes then outstanding.
Section 11.5 Evidence of Compliance of Supplemental Indenture to
Be Furnished Trustee. The Trustee, subject to the provisions of Sections 8.1 and
8.2, may receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article XI.
ARTICLE XII
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 12.1 Company May Consolidate Etc. on Certain Terms.
Subject to the provisions of Section 12.2, nothing contained in this Indenture
or in any of the Notes shall prevent any consolidation or merger of the Company
with or into any other corporation or corporations (whether or not affiliated
with the Company), or successive consolidations or mergers in which the Company
or its successor or successors shall be a party or parties, or shall prevent any
sale, conveyance or lease (or successive sales, conveyances or leases) of all or
substantially all of the property of the Company, to any other corporation
(whether or not affiliated with the Company) authorized to acquire and operate
the same and which shall be organized under the laws of a State of the United
States or the District of Columbia; provided, however, and the Company hereby
covenants and agrees, that upon any such consolidation, merger, sale, conveyance
or lease, the due and punctual payment of the principal of and premium, if any,
and interest (including Liquidated Damages, if any) on all of the Notes,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed by the
Company, shall be expressly assumed, by supplemental indenture satisfactory in
form to the Trustee, executed and delivered to the Trustee by the corporation
(if other than the Company) formed by such consolidation, or into which the
Company shall have been merged, or by the corporation which shall have
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acquired or leased such property, and such supplemental indenture shall provide
for the applicable conversion rights set forth in Section 15.6.
Section 12.2 Successor Corporation to Be Substituted. In case of
any such consolidation, merger, sale, conveyance or lease and upon the
assumption by the successor corporation, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and premium, if any, and interest
(including Liquidated Damages, if any) on all of the Notes and the due and
punctual performance of all of the covenants and conditions of this Indenture to
be performed by the Company, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
as the party of the first part. Such successor corporation thereupon may cause
to be signed, and may issue either in its own name or in the name of CKE
Restaurants, Inc. any or all of the Notes issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of such successor corporation instead of the Company and subject
to all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver, or cause to be authenticated and
delivered, any Notes which previously shall have been signed and delivered by
the officers of the Company to the Trustee for authentication, and any Notes
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Notes so issued shall in all
respects have the same legal rank and benefit under this Indenture as the Notes
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Notes had been issued at the date of the execution hereof.
In the event of any such consolidation, merger, sale, conveyance or lease, the
Person named as the "Company" in the first paragraph of this Indenture or any
successor which shall thereafter have become such in the manner prescribed in
this Article XII may be dissolved, wound up and liquidated at any time
thereafter and such Person shall be released from its liabilities as obligor and
maker of the Notes and from its obligations under this Indenture.
In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form (but not in substance) may be made
in the Notes thereafter to be issued as may be appropriate.
Section 12.3 Opinion of Counsel to Be Given Trustee. The Trustee
shall receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance or lease and any
such assumption complies with the provisions of this Article XII.
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ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.1 Discharge of Indenture. When (a) the Company shall
deliver to the Trustee for cancellation all Notes theretofore authenticated
(other than any Notes which shall have been destroyed, lost or stolen and in
lieu of or in substitution for which other Notes shall have been authenticated
and delivered) and not theretofore canceled, or (b) all the Notes not
theretofore canceled or delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the
Company shall deposit with the Trustee, in trust, funds sufficient to pay at
maturity or upon redemption of all of the Notes (other than any Notes which
shall have been mutilated, destroyed, lost or stolen and in lieu of or in
substitution for which other Notes shall have been authenticated and delivered)
not theretofore canceled or delivered to the Trustee for cancellation, including
principal and premium, if any, and interest (including Liquidated Damages, if
any) due or to become due to such date of maturity or date fixed for redemption,
as the case may be, and if in either case the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company, then this Indenture
shall cease to be of further effect (except as to (i) remaining rights of
registration of transfer, substitution and exchange and conversion of Notes,
(ii) rights hereunder of Noteholders to receive payments of principal of and
premium, if any, and interest (including Liquidated Damages, if any) on, the
Notes and the other rights, duties and obligations of Noteholders, as
beneficiaries hereof with respect to the amounts, if any, so deposited with the
Trustee and (iii) the rights, obligations and immunities of the Trustee
hereunder), and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel as required by Section 16.5 and
at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture; the Company,
however, hereby agreeing to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee and to compensate the
Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Notes.
Section 13.2 Deposited Monies to Be Held in Trust by Trustee.
Subject to Section 13.4, all monies deposited with the Trustee pursuant to
Section 13.1, shall be held in trust and applied by it to the payment, either
directly or through any paying agent (including the Company if acting as its own
paying agent), to the holders of the particular Notes for the payment or
redemption of which such monies have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest (including
Liquidated Damages, if any) and premium, if any.
Section 13.3 Paying Agent to Repay Monies Held. Upon the
satisfaction and discharge of this Indenture, all monies then held by any paying
agent of the Notes (other than the Trustee) shall, upon demand of the Company,
be repaid to it or paid to the Trustee, and
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thereupon such paying agent shall be released from all further liability with
respect to such monies.
Section 13.4 Return of Unclaimed Monies. Anything contained
herein to the contrary notwithstanding, any monies deposited with or paid to the
Trustee for payment of the principal of, premium, if any, or interest on Notes
and not applied but remaining unclaimed by the holders of Notes for two years
after the date upon which the principal of, premium, if any, or interest on such
Notes, as the case may be, shall have become due and payable, shall be repaid to
the Company by the Trustee within 60 days of such date and all liability of the
Trustee shall thereupon cease with respect to such monies; and the holder of any
of the Notes shall thereafter look only to the Company for any payment which
such holder may be entitled to collect. The Trustee shall not be liable to the
Company or any Noteholder for interest on funds held by it for the payment and
discharge of the interest, or premium (if any) on or principal of any of the
Notes to any holder. The Company shall not be liable for any interest on the
sums paid to it pursuant to this paragraph and shall not be regarded as a
trustee of such money.
Section 13.5. Reinstatement. If the Trustee or the paying agent
is unable to apply any money in accordance with Section 13.2 by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 13.1 until such time as the Trustee or the paying
agent is permitted to apply all such money in accordance with Section 13.2;
provided, however, that if the Company makes any payment of interest on or
principal of any Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the holders of such Notes to
receive such payment from the money held by the Trustee or paying agent.
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 14.1 Indenture and Notes Solely Corporate Obligations. No
recourse for the payment of the principal of or premium, if any, or interest
(including Liquidated Damages, if any) on any Note, or for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in this Indenture or in any
supplemental indenture, or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or
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otherwise; it being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of the Notes.
ARTICLE XV
CONVERSION OF NOTES
Section 15.1 Right to Convert. Subject to and upon compliance
with the provisions of this Indenture, including, without limitation, Article
IV, the holder of any Note shall have the right, at such holder's option, at any
time after ninety (90) days following the latest date of original issuance
thereof and prior to the close of business on March 15, 2004 (except that, with
respect to any Note or portion of a Note which shall be called for redemption
such right shall terminate, except as provided in Section 15.2 or Section 3.4,
at the close of business on the Business Day next preceding the date fixed for
redemption of such Note or portion of a Note unless the Company shall default in
payment due upon redemption thereof) to convert the principal amount of any such
Note, or any portion of such principal amount which is $1,000 or a multiple
thereof, into that number of fully paid and non-assessable shares of Common
Stock (as such shares shall then be constituted) at the date of conversion
obtained, by dividing the principal amount of the Note or portion thereof
surrendered for conversion by the Conversion Price in effect at such time, by
surrender of the Note so to be converted in whole or in part in the manner
provided, together with any required funds, in Section 15.2. A Note in respect
of which a holder is exercising the option to require redemption upon a
Fundamental Change pursuant to Section 3.5 may be converted only if such holder
withdraws its election to exercise in accordance with Section 3.5 hereof. A
holder of Notes is not entitled to any rights of a holder of Common Stock until
such holder has converted his Notes to Common Stock, and only to the extent such
Notes are deemed to have been converted to Common Stock under this Article XV.
Section 15.2 Exercise of Conversion Privilege; Issuance of Common
Stock on Conversion; No Adjustment for Interest or Dividends. In order to
exercise the conversion privilege with respect to any Note in certificated form,
the holder of any such Note to be converted in whole or in part shall surrender
such Note, duly endorsed, at an office or agency maintained by the Company
pursuant to Section 5.2, accompanied by the funds, if any, required by the
penultimate paragraph of this Section 15.2, and shall give written notice of
conversion in the form provided on the Notes (or such other notice which is
acceptable to the Company) to the Company at such office or agency that the
holder elects to convert such Note or the portion thereof specified in said
notice. Such notice shall also state the name or names (with address or
addresses) in which the certificate or certificates for shares of Common Stock
which shall be issuable on such conversion shall be issued, and shall be
accompanied by transfer taxes, if required pursuant to Section 15.7. Each such
Note surrendered for conversion shall, unless the shares issuable on conversion
are to be issued in the same name as
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the registration of such Note, be duly endorsed by, or be accompanied by
instruments of transfer in form satisfactory to the Company duly executed by,
the holder or its duly authorized attorney.
In order to exercise the conversion privilege with respect to any
interest in a Note in global form, the beneficial holder must complete the
appropriate instruction form for conversion pursuant to the Depositary's
book-entry conversion program, deliver by book-entry delivery an interest in
such Note in global form, furnish appropriate endorsements and transfer
documents if required by the Company or the Trustee or conversion agent, and pay
the funds, if any, required by this Section 15.2 and any transfer taxes if
required pursuant to Section 15.7.
As promptly as practicable after satisfaction of the requirements
for conversion set forth above, subject to compliance with any restrictions on
transfer if shares issuable on conversion are to be issued in a name other than
that of the Noteholder (as if such transfer were a transfer of the Note or Notes
(or portion thereof) so converted), the Company shall issue and shall deliver at
such office or agency to such holder, or on its written order, a certificate or
certificates for the number of full shares of Common Stock issuable upon the
conversion of such Note or portion thereof in accordance with the provisions of
this Article and a check in payment of any fractional interest in respect of a
share of Common Stock arising upon such conversion, as provided in Section 15.3.
In case any Note of a denomination greater than $1,000 shall be surrendered for
partial conversion, and subject to Section 2.3, the Company shall execute and
the Trustee shall authenticate and deliver to or upon the written order of the
holder of the Note so surrendered, without charge to such holder, a new Note or
Notes in authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Note.
Each conversion shall be deemed to have been effected as to any
such Note (or portion thereof) on the date on which the requirements set forth
above in this Section 15.2 have been satisfied as to such Note (or portion
thereof), and the Person in whose name any certificate or certificates for
shares of Common Stock shall be issuable upon such conversion shall be deemed to
have become on said date the holder of record of the shares represented thereby;
provided, however, that any such surrender on any date when the stock transfer
books of the Company shall be closed shall constitute the Person in whose name
the certificates are to be issued as the record holder thereof for all purposes
on the next succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date upon which
such Note shall have been surrendered.
Any Note or portion thereof surrendered for conversion during the
period from the close of business on the record date for any interest payment
date to the close of business on the Business Day next preceding the following
interest payment date shall (unless such Note or portion thereof being converted
shall have been called for redemption on a date fixed for redemption which
occurs during the period from the close of business on such record date to
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the close of business on the Business Day next preceding the following interest
payment date) be accompanied by payment, in New York Clearing House funds or
other funds acceptable to the Company, of an amount equal to the interest
otherwise payable on such interest payment date on the principal amount being
converted; provided, however, that no such payment need be made if there shall
exist at the time of conversion a default in the payment of interest on the
Notes. An amount equal to such payment shall be paid by the Company on such
interest payment date to the holder of such Note at the close of business on
such record date; provided, however, that if the Company shall default in the
payment of interest on such interest payment date, such amount shall be paid to
the Person who made such required payment. Except as provided above in this
Section 15.2, no payment or other adjustment shall be made for interest accrued
on any Note converted or for dividends on any shares issued upon the conversion
of such Note as provided in this Article.
Upon the conversion of an interest in a Note in global form, the
Trustee (or other conversion agent appointed by the Company), or the Custodian
at the direction of the Trustee (or other conversion agent appointed by the
Company), shall make a notation on such Note in global form as to the reduction
in the principal amount represented thereby. The Company shall notify the
Trustee in writing of any conversions of Notes effected through any conversion
agent other than the Trustee.
Section 15.3 Payments in Lieu of Fractional Shares. No fractional
shares of Common Stock or scrip representing fractional shares shall be issued
upon conversion of Notes. If more than one Note shall be surrendered for
conversion at one time by the same holder, the number of full shares which shall
be issuable upon conversion shall be computed on the basis of the aggregate
principal amount of the Notes (or specified portions thereof to the extent
permitted hereby) so surrendered. If any fractional share of stock would be
issuable upon the conversion of any Note or Notes, the Company shall make an
adjustment therefor in cash at the current market value thereof to the holder of
Notes. For these purposes, the current market value of a share of Common Stock
shall be the Closing Price on the first Business Day immediately preceding the
day on which the Notes (or specified portions thereof) are deemed to have been
converted.
Section 15.4 Conversion Price. The conversion price shall be as
specified in the form of Note (herein called the "Conversion Price") attached as
Exhibit A hereto, subject to adjustment as provided in this Article XV.
Section 15.5 Adjustment of Conversion Price. The Conversion Price
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 Price 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
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other distribution shall be reduced by multiplying such Conversion Price
by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for
such determination and the denominator shall be the sum of such number
of shares and the total number of shares constituting such dividend or
other distribution, such reduction to become effective immediately after
the opening of business on the day following the date fixed for such
determination. 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 15.5(a) is declared but not so paid or made, the Conversion
Price shall again be adjusted to the Conversion Price which 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 Common Stock entitling them (for a period expiring
within 45 days after the record date mentioned below) to subscribe for
or purchase Common Stock at a price per share less than the Current
Market Price (as defined below) on the date fixed for the determination
of stockholders entitled to receive such rights or warrants, the
Conversion Price in effect immediately prior thereto shall be adjusted
so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date fixed for
determination of stockholders entitled to receive such rights or
warrants by a fraction of which the numerator 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
number of shares which the aggregate offering price of the total number
of shares so offered would purchase at such Current Market Price, and of
which the denominator 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 number of additional shares
of Common Stock offered for subscription or purchase. Such adjustment
shall be made successively 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. In determining
whether any rights or warrants entitle the holders to subscribe for or
purchase shares of Common Stock at less than such Current Market 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, the value of such
consideration, if other than cash, to be determined by the Board of
Directors. To the extent that shares of Common Stock are not delivered
after the expiration of such rights or warrants, the Conversion Price
shall be readjusted to the Conversion Price which 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. To the extent that no shares of
Common Stock are so delivered after the expiration of such rights or
warrants, the Conversion Price shall be readjusted to the Conversion
Price which would then be in
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effect if such date fixed for the determination of stockholders entitled
to receive such rights or warrants had not been fixed.
(c) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Conversion Price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be
proportionately reduced, and conversely, in case outstanding shares of
Common Stock shall be combined into a smaller number of shares of Common
Stock, the Conversion Price in effect at the opening of business on the
day following the day upon which such combination becomes effective
shall be proportionately increased, such reduction or increase, 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 (other than any dividends or
distributions to which Section 15.5(a) applies) or evidences of its
indebtedness or assets (including securities, but excluding any rights
or warrants referred to in Section 15.5(b), and excluding any dividend
or distribution (x) paid exclusively in cash or (y) referred to in
Section 15.5(a) (any of the foregoing hereinafter in this Section
15.5(d) called the "Securities")), then, in each such case (unless the
Company elects to reserve such Securities for distribution to the
Noteholders upon the conversion of the Notes so that any such holder
converting Notes 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 Securities which such holder would have received if such
holder had converted its Notes into Common Stock immediately prior to
the Record Date (as defined in Section 15.5(i) for such distribution of
the Securities)), the Conversion Price shall be reduced so that the same
shall be equal to the price determined by multiplying the Conversion
Price in effect on the Record Date with respect to such distribution by
a fraction of which the numerator shall be the Current Market Price per
share of the Common Stock on such Record Date less the 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) on
the Record Date of the portion of the Securities so distributed
applicable to one share of Common Stock and the denominator shall be the
Current Market Price per share of the Common Stock, such reduction to
become effective immediately prior to the opening of business on the day
following such Record Date; provided, however, that in the event the
fair market value (as so determined) of the portion of the Securities 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 Noteholder shall have the right to receive upon
conversion the amount of Securities such holder would have received had
such holder converted each Note on the Record Date. In the event that
such dividend or distribution
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is not so paid or made, the Conversion Price shall again be adjusted to
be the Conversion Price which would then be in effect if such dividend
or distribution had not been declared. If the Board of Directors
determines the fair market value of any distribution for purposes of
this Section 15.5(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 15.5 (and no adjustment to the Conversion Price under
this Section 15.5 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 Price shall be made under this Section 15.5(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 Price
under this Section 15.5 was made, (1) in the case of any such rights or
warrants which shall all have been redeemed or repurchased without
exercise by any holders thereof, the Conversion Price 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 which shall have expired or been terminated without
exercise by any holders thereof, the Conversion Price shall be
readjusted as if such rights and warrants had not been issued.
Notwithstanding the foregoing, in the event that the
Company shall distribute rights or warrants to subscribe for additional
shares of the Common Stock
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(other than rights or warrants described in Section 15.5(b)), pro rata
to holders of Common Stock, and in the case of the rights issued
pursuant to the Company's stockholder rights agreement in existence as
of the date hereof, the Company may, in lieu of making any adjustment
pursuant to this Section 15.5(d), make proper provision (in the case of
the Company's stockholder rights agreement in existence as of the date
thereof, to the extent it does not make proper provision) so that each
holder of a Note who converts such Note (or any portion thereof) after
the record date for such distribution shall be entitled to receive upon
such conversion, in addition to the shares of Common Stock issuable upon
such conversion (the "Conversion Shares"), a number of rights or
warrants to be determined as follows: (i) if such conversion occurs on
or prior to the date for the distribution to the holders of such rights
or warrants of separate certificates evidencing such rights or warrants
(the "Distribution Date"), the same number of rights or warrants to
which a holder of a number of shares of Common Stock equal to the number
of Conversion Shares is entitled at the time of such conversion in
accordance with the terms and provisions of and applicable to such
rights or warrants; and (ii) if such conversion occurs after the
Distribution Date, the same number of rights or warrants to which a
holder of the number of shares of Common Stock into which the principal
amount of the Note so converted was convertible immediately prior to the
Distribution Date would have been entitled on the Distribution Date in
accordance with the terms and provisions of, and applicable to such
rights or warrants.
For purposes of this Section 15.5(d) and Sections 15.5(a)
and (b), any dividend or distribution to which this Section 15.5(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
Price reduction required by this Section 15.5(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 Price reduction required by
Sections 15.5(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" and "the date fixed for such determination" within the
meaning of Sections 15.5(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 15.5(a).
(e) In case the Company shall, by dividend or
otherwise, distribute to all holders of its Common Stock cash (excluding
(x) any quarterly cash dividend on the Common Stock to the extent the
aggregate cash dividend per share of Common Stock in any fiscal quarter
does not exceed the greater of (A) the amount per share of Common
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Stock of the next preceding quarterly cash dividend on the Common Stock
to the extent such preceding quarterly dividend did not require any
adjustment of the Conversion Price pursuant to this subsection (e) (as
adjusted to reflect subdivisions or combinations of the Common Stock),
and (B) 3.75% of the average of the Closing Price (determined as set
forth in Section 15.5(i)) during the ten Trading Days (as defined in
Section 15.5(i)) next preceding the date of declaration of such dividend
and (y) 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 Price shall be reduced
so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the close of business on
such Record Date by a fraction of which the numerator shall be the
Current Market Price of the Common Stock on the Record Date less the
amount of cash so distributed (and not excluded as provided above)
applicable to one share of Common Stock and the denominator shall be
such Current Market Price of the Common Stock, such reduction 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 Noteholder shall have the right to
receive upon conversion the amount of cash such holder would have
received had such holder converted each Note on the Record Date. In the
event that such dividend or distribution is not so paid or made, the
Conversion Price shall again be adjusted to be the Conversion Price
which would then be in effect if such dividend or distribution had not
been declared. If any adjustment is required to be made as set forth in
this subsection (e) as a result of a distribution that is a quarterly
dividend, such adjustment shall be based upon the amount by which such
distribution exceeds the amount of the quarterly cash dividend permitted
to be excluded pursuant hereto. If an adjustment is required to be made
as set forth in this subsection (e) above as a result of a distribution
that is not a quarterly dividend, such adjustment shall be based upon
the full amount of the distribution.
(f) In case a tender or exchange offer made by the Company
or any subsidiary of the Company for all or any portion of the Common
Stock shall expire and such tender or exchange offer (as amended upon
the expiration thereof) shall require the payment by the Company or such
subsidiary to stockholders of consideration per share of Common Stock
having a fair market value (as determined by the Board of Directors, or
to the extent permitted by applicable law, a duly authorized committee
thereof, whose determination shall be conclusive, and described in a
resolution of the Board of Directors or such duly authorized committee
thereof), as the case may be, at the last time (the "Expiration Time")
tenders or exchanges may be made pursuant to such tender or exchange
offer (as it shall have been amended) that exceeds the Current Market
Price of the Common Stock on the Trading Day next succeeding the
Expiration Time, the Conversion Price shall be reduced so that the same
shall equal the price
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determined by multiplying the Conversion Price in effect immediately
prior to the Expiration Time by a fraction of which the numerator shall
be the number of shares of Common Stock outstanding (including any
tendered or exchanged shares) on the Expiration Time multiplied by the
Current Market Price of the Common Stock on the Trading Day next
succeeding the Expiration Time and the denominator shall be the sum of
(x) the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to any
maximum specified in the terms of the tender or exchange offer) of all
shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted up to any such maximum,
being referred to as the "Purchased Shares") and (y) the product of the
number of shares of Common Stock outstanding (less any Purchased Shares)
on the Expiration Time and the Current Market Price of the Common Stock
on the Trading Day next succeeding the Expiration Time, such reduction
to become effective immediately prior to the opening of business on the
day following the Expiration Time. In the event that 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 Price shall again be adjusted to be the Conversion Price
which 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 of its subsidiaries for an amount
which increases the offeror's ownership of Common Stock to more than 35%
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, or to the extent
permitted by applicable law, a duly authorized committee thereof, whose
determination shall be conclusive, and described in a resolution of the
Board of Directors) at 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 Current Market
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
Price shall be reduced so that the same shall equal the price determined
by multiplying the Conversion Price in effect immediately prior to the
Offer Expiration Time by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding (including any tendered or
exchanged shares) on the Offer Expiration Time multiplied by the Current
Market Price of the Common Stock on the Trading Day next succeeding the
Offer Expiration Time and the denominator shall be the sum of (x) the
fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to any
maximum specified in the terms of the tender or exchange offer) of all
shares validly tendered or exchanged and not withdrawn as of the 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
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shares of Common Stock outstanding (less any Accepted Purchased Shares)
on the Offer Expiration Time and the Current Market Price of the Common
Stock on the Trading Day next succeeding the Offer Expiration Time, such
reduction 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 Price shall again be adjusted to be the
Conversion Price which would then be in effect if such tender or
exchange offer had not been made. Notwithstanding the foregoing, the
adjustment described in this subsection (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 Article XII.
(h) In case the Company shall issue Common Stock or
securities convertible into, or exchangeable for, Common Stock at a
price per share (or having a conversion or exchange price per share)
that is less than the then Current Market Price of the Common Stock (but
excluding, among other things, issuances: (a) pursuant to any bona fide
plan for the benefit of employees, directors, consultants or other
individuals in connection with employee incentive plans of the Company
now or hereafter in effect; (b) to acquire all or any portion of a
business in an arm's-length transaction between the Company and an
unaffiliated third party including, if applicable, issuances upon
exercise of options or warrants assumed in connection with such an
acquisition; (c) in a bona fide public offering pursuant to a firm
commitment underwriting (or a similar type of offering made pursuant to
Rule 144A and/or Regulation S under the Securities Act) or sales at the
market pursuant to a continuous offering stock program; (d) pursuant to
the exercise of warrants, rights (including, without limitation, earnout
rights) or options, or upon the conversion of convertible securities,
which are issued and outstanding on the date hereof, or which may be
issued in the future at fair value and with an exercise price or
conversion price at least equal to the Current Market Price of the
Common Stock at the time of issuance of such warrant, right, option or
convertible security; and (e) pursuant to a dividend reinvestment plan
or other plan hereafter adopted for the reinvestment of dividends or
interest provided that such Common Stock is issued at a price at least
equal to 95% of the market price of the Common Stock at the time of such
issuance), the Conversion Price shall be adjusted so that the holder of
each Note shall be entitled to receive, upon the conversion thereof, the
number of shares of Common Stock determined by multiplying (i) the
Conversion Price on the day immediately prior to such date of issuance
by (ii) a fraction, the numerator of which shall be the sum of (1) the
number of shares of Common Stock outstanding on such date and (2) the
number of shares of Common Stock which the aggregate consideration
receivable by the Company for the total number of shares of Common Stock
so issued (or into which the convertible securities may convert) would
purchase at such Conversion Price on such date, and the denominator of
which shall be
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the sum of (A) the number of shares of Common Stock outstanding on such
date and (B) the number of additional shares of Common Stock issued (or
into which the convertible securities may convert). An adjustment made
pursuant to this subsection (g) shall be made on the next Business Day
following the date on which any such issuance is made and shall be
effective retroactively immediately after the close of business on such
date. For purposes of this subsection (g), the aggregate consideration
receivable by the Company in connection with the issuance of shares of
Common Stock or of securities convertible into shares of Common Stock
shall be deemed to be equal to the sum of the aggregate offering price
(before deduction of underwriting discounts or commissions and expenses
payable to third parties) of all such securities plus the minimum
aggregate amount, if any, payable upon conversion of any such
convertible securities into shares of Common Stock.
(i) For purposes of this Section 15.5, the following
terms shall have the meaning indicated:
(1) "Closing Price" with respect to any securities
on any day shall mean the closing sale price regular way on such
day or, in case no such sale takes place on such day, the average
of the reported closing bid and asked prices, regular way, in
each case on the New York Stock Exchange, or, if such security is
not listed or admitted to trading on such Exchange, on the
principal national security exchange or quotation system on which
such security is quoted or listed or admitted to trading, or, if
not quoted or listed or admitted to trading on any national
securities exchange or quotation system, the average of the
closing bid and asked prices of such security on the
over-the-counter market on the day in question as reported by the
National Quotation Bureau Incorporated, or a similar generally
accepted reporting service, or if not so available, in such
manner as furnished by any New York Stock Exchange member firm
selected from time to time by the Board of Directors for that
purpose, or a price determined in good faith by the Board of
Directors or, to the extent permitted by applicable law, a duly
authorized committee thereof, whose determination shall be
conclusive.
(2) "Current Market Price" shall mean the average
of the daily Closing Prices per share of Common Stock for the ten
consecutive Trading Days immediately prior to the date in
question; provided, however, that (1) if the "ex" date (as
hereinafter defined) for any event (other than the issuance or
distribution or Fundamental Change requiring such computation)
that requires an adjustment to the Conversion Price pursuant to
Section 15.5(a), (b), (c), (d), (e), (f), (g) or (h) occurs
during such ten consecutive Trading Days, the Closing Price for
each Trading Day prior to the "ex" date for such other event
shall be adjusted by multiplying such Closing Price by the same
fraction by which the Conversion Price is so required to be
adjusted as a result of such other event,
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(2) if the "ex" date for any event (other than the issuance,
distribution or Fundamental Change requiring such computation)
that requires an adjustment to the Conversion Price pursuant to
Section 15.5(a), (b), (c), (d), (e), (f), (g) or (h) occurs on or
after the "ex" date for the issuance or distribution requiring
such computation and prior to the day in question, the Closing
Price for each Trading Day on and after the "ex" date for such
other event shall be adjusted by multiplying such Closing Price
by the reciprocal of the fraction by which the Conversion Price
is so required to be adjusted as a result of such other event,
and (3) if the "ex" date for the issuance, distribution or
Fundamental Change requiring such computation is prior to the day
in question, after taking into account any adjustment required
pursuant to clause (1) or (2) of this proviso, the Closing Price
for each Trading Day on or after such "ex" date shall be adjusted
by adding thereto the amount of any cash and the fair market
value (as determined by the Board of Directors or, to the extent
permitted by applicable law, a duly authorized committee thereof
in a manner consistent with any determination of such value for
purposes of Section 15.5(d), (f) or (g), whose determination
shall be conclusive and described in a resolution of the Board of
Directors or such duly authorized committee thereof, as the case
may be) of the evidences of indebtedness, shares of capital stock
or assets being distributed applicable to one share of Common
Stock as of the close of business on the day before such "ex"
date. For purposes of any computation under Section 15.5(f) or
(g), the Current Market Price of the Common Stock on any date
shall be deemed to be the average of the daily Closing Prices per
share of Common Stock for such day and the next two succeeding
Trading Days; provided, however, that if the "ex" date for any
event (other than the tender or exchange offer requiring such
computation) that requires an adjustment to the Conversion Price
pursuant to Section 15.5(a), (b), (c), (d), (e), (f), (g) or (h)
occurs on or after the Expiration Time or Offer Expiration Time,
as the case may be, for the tender or exchange offer requiring
such computation and prior to the day in question, the Closing
Price for each Trading Day on and after the "ex" date for such
other event shall be adjusted by multiplying such Closing Price
by the reciprocal of the fraction by which the Conversion Price
is so required to be adjusted as a result of such other event.
For purposes of this paragraph, the term "ex" date, (1) when used
with respect to any issuance or distribution, means the first
date on which the Common Stock trades regular way on the relevant
exchange or in the relevant market from which the Closing Price
was obtained without the right to receive such issuance or
distribution, (2) when used with respect to any subdivision or
combination of shares of Common Stock, means 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, and (3) when used with respect to
any tender or exchange offer means the first date on which the
Common Stock trades regular way on
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such exchange or in such market after the Expiration Time or
Offer Expiration Time, as the case may be, of such offer.
(3) "fair market value" shall mean the amount which
a willing buyer would pay a willing seller in an arm's length
transaction.
(4) "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).
(5) "Trading Day" shall mean (x) if the applicable
security is listed or admitted for trading on the New York Stock
Exchange or another national security exchange, a day on which
the New York Stock Exchange or another national security exchange
is open for business or (y) if the applicable security is quoted
on the Nasdaq National Market, a day on which trades may be made
on thereon or (z) if the applicable security is not so listed,
admitted for trading or quoted, any day other than a Saturday or
Sunday or a day on which banking institutions in the State of New
York are authorized or obligated by law or executive order to
close.
(j) The Company may make such reductions in the
Conversion Price, in addition to those required by Xxxxxxxx 00.0 (x),
(x), (x), (x), (x), (x), (x) or (h) as the Board of Directors considers
to be advisable to avoid or diminish any income tax to holders of Common
Stock or rights to purchase Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event
treated as such for income tax purposes.
To the extent permitted by applicable law, the Company
from time to time may reduce the Conversion Price by any amount for any
period of time if the period is at least twenty (20) days, the reduction
is irrevocable during the period and the Board of Directors shall have
made a determination that such reduction would be in the best interests
of the Company, which determination shall be conclusive. Whenever the
Conversion Price is reduced pursuant to the preceding sentence, the
Company shall mail to holders of Notes at his address appearing on the
Register a notice of the reduction at least fifteen (15) days prior to
the date the reduced Conversion Price takes effect, and such notice
shall state the reduced Conversion Price and the period during which it
will be in effect.
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(k) No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or decrease of
at least 1% in such price; provided, however, that any adjustments which
by reason of this subsection (k) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Article XV 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. No adjustment need be made for rights to
purchase Common Stock pursuant to a Company plan for reinvestment of
dividends or interest. To the extent the Notes 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. Interest will not accrue on the cash.
(l) Whenever the Conversion Price 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 Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment. Promptly
after delivery of such certificate, the Company shall prepare a notice
of such adjustment of the Conversion Price setting forth the adjusted
Conversion Price and the date on which each adjustment becomes effective
and shall mail such notice of such adjustment of the Conversion Price to
the holder of each Note at his last address appearing on the Register
provided for in Section 2.5 of this Indenture, within 20 days after
execution thereof. Failure to deliver such notice shall not affect the
legality or validity of any such adjustment.
(m) In any case in which this Section 15.5 provides
that an adjustment shall become effective immediately after a record
date for an event, the Company may defer until the occurrence of such
event (i) issuing to the holder of any Note converted after such record
date and before the occurrence of such event the additional shares of
Common Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the Common Stock issuable upon
such conversion before giving effect to such adjustment and (ii) paying
to such holder any amount in lieu of any fraction pursuant to Section
15.3.
(n) For purposes of this Section 15.5, 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 15.6 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 15.5(c)
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applies), (ii) any consolidation, merger or combination of the Company with
another corporation as a result of which holders of Common Stock shall be
entitled to receive stock, 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 the properties and assets of the Company as, or substantially as,
an entirety to any other corporation as a result of which holders of Common
Stock shall be entitled to receive stock, 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 corporation, 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 such Note shall be convertible into the kind and
amount of shares of stock and other securities or property or assets (including
cash) receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of a number of shares of Common
Stock issuable upon conversion of such Notes (assuming, for such purposes, a
sufficient number of authorized shares of Common Stock available to convert all
such Notes) immediately prior to such reclassification, change, consolidation,
merger, 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
securities, cash or other property receivable upon such consolidation, merger,
statutory exchange, sale or conveyance (provided that, if the kind or amount of
securities, cash or other property receivable upon such consolidation, merger,
statutory exchange, sale or conveyance is not the same for each share of Common
Stock in respect of which such rights of election shall not have been exercised
("nonelecting share")), then for the purposes of this Section 15.6 the kind and
amount of securities, cash or other property receivable upon such consolidation,
merger, statutory exchange, sale or conveyance for each non-electing share shall
be deemed to be the kind and amount so receivable per share by a plurality of
the non-electing shares. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article.
The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each holder of Notes, at his address
appearing on the Register provided for in Section 2.5 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 15.6 shall similarly apply
to successive reclassifications, consolidations, mergers, combinations, and
sales.
If this Section 15.6 applies to any event or occurrence, Section
15.5 shall not apply.
Section 15.7 Taxes on Shares Issued. The issue of stock
certificates on conversions of Notes shall be made without charge to the
converting Noteholder for any U.S. 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
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in any name other than that of the holder of any Note 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 15.8 Reservation of Shares; Shares to Be Fully Paid;
Compliance with Governmental Requirements; Listing of Common Stock. The Company
shall provide, free from preemptive rights, out of its authorized but unissued
shares, sufficient shares of Common Stock to provide for the conversion of the
Notes from time to time as such Notes are presented for conversion.
Before taking any action which would cause an adjustment reducing
the Conversion Price below the then par value, if any, of the shares of Common
Stock issuable upon conversion of the Notes, 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 Price.
The Company covenants that all shares of Common Stock which may
be issued upon conversion of Notes 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.
The Company covenants that if any shares of Common Stock to be
provided for the purpose of conversion of Notes hereunder 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 endeavor to secure such registration
or approval, as the case may be.
The Company further covenants that if at any time the Common
Stock shall be listed on the New York Stock Exchange or any other national
securities exchange or automated quotation system the Company will, if permitted
by the rules of such exchange, 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 Notes; provided, however, that if 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 Notes into Common
Stock in accordance with the provisions of this Indenture, the Company covenants
to list such Common Stock issuable upon conversion of the Notes in accordance
with the requirements of such exchange or automated quotation system at such
time.
Section 15.9 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 Notes to determine the Conversion Price or whether any facts exist
which may require any adjustment of the Conversion Price, 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
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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 Note; and the Trustee and any other conversion agent make
no representations with respect thereto. Subject to the provisions of Section
8.1, 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 Note for the purpose of conversion or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article. 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 15.6 relating either to the kind or amount of shares of stock or
securities or property (including cash) receivable by Noteholders upon the
conversion of their Notes after any event referred to in such Section 15.6 or to
any adjustment to be made with respect thereto, but, subject to the provisions
of Section 8.1, 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 15.10 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 Price pursuant to Section 15.5; or
(b) the Company shall authorize the granting to the
holders 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 or merger to which the Company is a party and for which
approval of any shareholders of the Company is required, or of the sale
or transfer of all or substantially all of the assets of the Company or
any Subsidiary; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding-up of the Company or any Subsidiary;
the Company shall cause to be filed with the Trustee and to be mailed to each
holder of Notes at his address appearing on the Register, provided for in
Section 2.5 of this Indenture, as promptly as possible but in any event at least
fifteen (15) days prior to the applicable date
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hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution or 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, 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, 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, sale, transfer, dissolution, liquidation or winding-up.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
Section 16.1 Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements in this Indenture contained by
the Company shall bind its successors and assigns whether so expressed or not.
Section 16.2 Official Acts by Successor Corporation. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful sole successor
of the Company.
Section 16.3 Addresses for Notices, Etc. Any notice or demand
which by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Notes on the Company may be given or
served by being deposited postage prepaid by registered or certified mail in a
post office letter box addressed (until another address is filed by the Company
with the Trustee) to CKE Restaurants, Inc., 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000, Attention: Chief Financial Officer. Any notice,
direction, request or demand hereunder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office, which office is, at the date as of which
this Indenture is dated, located at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000.
Section 16.4 Governing Law. This Indenture and each Note shall be
deemed to be a contract made under the laws of New York, and for all purposes
shall be construed in accordance with the laws of New York.
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Section 16.5 Evidence of Compliance with Conditions Precedent;
Certificates to Trustee. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent have been complied
with.
Section 16.6 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
Trust Indenture Act Section 314(a)(4)) shall comply with the provisions of Trust
Indenture Act Section 314(e) and shall include:
(a) a statement that the Person making such certificate
or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he
or she has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of
such Person such condition or covenant has been satisfied.
Section 16.7 Legal Holidays. In any case where the date of
maturity of interest on or principal of the Notes or the date fixed for
redemption of any Note will be a legal holiday or a day on which banking
institutions in New York, New York or San Francisco, California are authorized
by law or executive order to close ("Legal Holidays"), then payment of such
interest on or principal of the Notes need not be made on such date but may be
made on the next succeeding day not a Legal Holiday with the same force and
effect as if made on the date of maturity or the date fixed for redemption and
no interest shall accrue for the period from and after such date.
Section 16.8 No Security Interest Created. Nothing in this
Indenture or in the Notes, expressed or implied, shall be construed to
constitute a security interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect, in any jurisdiction
where property of the Company or its subsidiaries is located.
Section 16.9 Benefits of Indenture. Nothing in this Indenture or
in the Notes, expressed or implied, shall give to any Person, other than the
parties hereto, any paying agent,
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any authenticating agent, any Note registrar and their successors hereunder, the
holders of Notes and the holders of Senior Indebtedness, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 16.10 Table of Contents, Headings, Etc. The table of
contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
Section 16.11 Authenticating Agent. The Trustee may appoint an
authenticating agent which shall be authorized to act on its behalf and subject
to its direction in the authentication and delivery of Notes in connection with
the original issuance thereof and transfers and exchanges of Notes hereunder,
including under Sections 2.4, 2.5, 2.6, 2.7, 3.3 and 3.5, as fully to all
intents and purposes as though the authenticating agent had been expressly
authorized by this Indenture and those Sections to authenticate and deliver
Notes. For all purposes of this Indenture, the authentication and delivery of
Notes by the authenticating agent shall be deemed to be authentication and
delivery of such Notes "by the Trustee" and a certificate of authentication
executed on behalf of the Trustee by an authenticating agent shall be deemed to
satisfy any requirement hereunder or in the Notes for the Trustee's certificate
of authentication. Such authenticating agent shall at all times be a Person
eligible to serve as trustee hereunder pursuant to Section 8.9.
Any corporation into which any authenticating agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any authenticating agent
shall be a party, or any corporation succeeding to the corporate trust business
of any authenticating agent, shall be the successor of the authenticating agent
hereunder, if such successor corporation is otherwise eligible under this
Section 16.12, without the execution or filing of any paper or any further act
on the part of the parties hereto or the authenticating agent or such successor
corporation.
Any authenticating agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any authenticating agent by giving written notice
of termination to such authenticating agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any authenticating agent shall cease to be eligible under this Section, the
Trustee shall either promptly appoint a successor authenticating agent or itself
assume the duties and obligations of the former authenticating agent under this
Indenture, and upon such appointment of a successor authenticating agent, if
made, shall give written notice of such appointment of a successor
authenticating agent to the Company and shall mail notice of such appointment of
a successor authenticating agent to all holders of Notes as the names and
addresses of such holders appear on the Register.
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The Trustee agrees to pay to the authenticating agent from time
to time reasonable compensation for its services (to the extent pre-approved by
the Company in writing), and the Trustee shall be entitled to be reimbursed for
such pre-approved payments, subject to Section 8.6.
The provisions of Sections 8.2, 8.3, 8.4, 9.3 and this Section
16.11 shall be applicable to any authenticating agent.
Section 16.12 Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
Chase Manhattan Bank and Trust Company, National Association,
hereby accepts the trusts in this Indenture declared and provided, upon the
terms and conditions hereinabove set forth.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of March 13, 1998.
CKE RESTAURANTS, INC.
By /s/ XXXX X. XXXXXX
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: EVP
[CORPORATE SEAL]
Attest:
By
--------------------------------
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION
By /s/ XXXXX X. XXXXX
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: AVP
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EXHIBIT A
[FORM OF REVERSE OF NOTE]
[For global Note only:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) (THE
"DEPOSITARY," WHICH TERM INCLUDES ANY SUCCESSOR DEPOSITARY FOR THE CERTIFICATES)
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DEPOSITARY AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. (OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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.]
[For Restricted Securities only:
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT)
("INSTITUTIONAL ACCREDITED INVESTOR"); (2) AGREES THAT IT WILL NOT, PRIOR TO
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED
HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION),
RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY OR THE COMMON STOCK
ISSUABLE UPON CONVERSION OF SUCH NOTE EXCEPT (A) TO CKE RESTAURANTS, INC. OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL
ASSOCIATION, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
101
THE RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED HEREBY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM SUCH TRUSTEE OR A SUCCESSOR TRUSTEE, AS APPLICABLE),
(D) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES
ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES
TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER); (3) AGREES THAT PRIOR TO SUCH
TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(F) ABOVE), IT WILL FURNISH
TO CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION, AS TRUSTEE (OR
A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (4) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THE NOTE EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE
PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER WHO
IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO CHASE
MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION, AS TRUSTEE (OR A
SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED
UPON THE EARLIER OF THE TRANSFER OF THE NOTE EVIDENCED HEREBY PURSUANT TO CLAUSE
2(F) ABOVE OR UPON ANY TRANSFER OF THE NOTES EVIDENCED HEREBY UNDER RULE 144(K)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION). AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.]
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CKE RESTAURANTS, INC.
4 1/4% CONVERTIBLE SUBORDINATED NOTE DUE 2004
CUSIP
No. $
CKE Restaurants, Inc., a corporation duly organized and validly
existing under the laws of the State of Delaware (herein called the "Company"),
which term includes any successor corporation under the Indenture referred to on
the reverse hereof, for value received hereby promises to pay to
____________________ or registered assigns, the principal sum of ____________
($________ ) DOLLARS on March 15, 2004, at the office or agency of the Company
maintained for that purpose in accordance with the terms of the Indenture, or,
at the option of the holder of this Note, at the Corporate Trust Office, in such
coin or currency of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts, and to pay
interest, semi-annually on March 15 and September 15 of each year, commencing
September 15, 1998, on said principal sum at said office or agency, in like coin
or currency, at the rate per annum of 4 1/4%, from March 15 or September 15, as
the case may be, next preceding the date of this Note to which interest has been
paid or duly provided for, unless the date hereof is a date to which interest
has been paid or duly provided for, in which case from the date of this Note, or
unless no interest has been paid or duly provided for on the Notes, in which
case from March 13, 1998, until payment of said principal sum has been made or
duly provided for. Notwithstanding the foregoing, if the date hereof is after
any March 1 or September 1, as the case may be, and before the following March
15 or September 15, this Note shall bear interest from such March 15 or
September 15; provided, however, that if the Company shall default in the
payment of interest due on such March 15 or September 15, then this Note shall
bear interest from the next preceding March 15 or September 15 to which interest
has been paid or duly provided for or, if no interest has been paid or duly
provided for on such Note, from March 13, 1998. The interest payable on the Note
pursuant to the Indenture on any March 15 or September 15 will be paid to the
person entitled thereto as it appears on the Register at the close of business
on the record date, which shall be the March 1 or September 1 (whether or not a
Business Day) next preceding such March 15 or September 15, as provided in the
Indenture; provided that any such interest not punctually paid or duly provided
for shall be payable as provided in the Indenture. Interest may, at the option
of the Company, be paid either (i) by check mailed to the registered address of
such person or (ii) by transfer to an account maintained by such person located
in the United States.
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103
Interest on the Notes shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, including, without limitation, provisions
subordinating the payment of principal of and premium, if any, and interest on
the Notes to the prior payment in full of all Senior Indebtedness, as defined in
the Indenture, and provisions giving the holder of this Note the right to
convert this Note into Common Stock of the Company on the terms and subject to
the limitations referred to on the reverse hereof and as more fully specified in
the Indenture. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be construed in accordance
with and governed by the laws of said State.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually signed
by the Trustee or a duly authorized authenticating agent under the Indenture.
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104
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed under its corporate seal.
Dated: CKE RESTAURANTS, INC.
By: _____________________________________
Name:
Title:
Attest: _________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the
within-named Indenture.
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION, as Trustee
By:___________________________________________________
Authorized Officer
By:___________________________________________________
As Authenticating Agent (if different from Trustee)
5
105
[FORM OF REVERSE OF NOTE]
CKE RESTAURANTS, INC.
4 1/4% CONVERTIBLE SUBORDINATED NOTE DUE 2004
This Note is one of a duly authorized issue of Notes of the
Company, designated as its 4 1/4% Convertible Subordinated Notes due 2004
(herein called the "Notes"), limited to the aggregate principal amount of
$197,225,000 all issued or to be issued under and pursuant to an indenture dated
as of March 13, 1998 (herein called the "Indenture"), between the Company and
Chase Manhattan Bank and Trust Company, National Association, as trustee (herein
called the "Trustee"), to which the Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the holders of the Notes. Capitalized terms used in this Note and
not defined herein have the meaning ascribed thereto in the Indenture.
Chase Manhattan Bank and Trust Company, National Association,
the Trustee under the Indenture, has been appointed by the Company as paying
agent, conversion agent, Note registrar and Custodian with regard to the Notes.
In case an Event of Default shall have occurred and be
continuing, the principal of and accrued interest (including Liquidated Damages,
if any) on all Notes may be declared, and upon said declaration shall become,
due and payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
With the consent of the holders of not less than a majority in
aggregate principal amount of the Notes at the time outstanding, the Company,
when authorized by resolutions of the Board of Directors, and the Trustee from
time to time and at any time may enter into an indenture or indentures
supplemental to the Indenture for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
of any supplemental indenture or modifying in any manner the rights of the
holders of the Notes; provided, however, that no such supplemental indenture
shall (i) extend the fixed maturity of any Note, or reduce the rate or extend
the time of payment of interest thereon, or reduce the principal amount thereof
or premium, if any, thereon, or reduce any amount payable on redemption or on
repayment thereof, or impair or affect the right of any Noteholder to institute
suit for the payment thereof, or make the principal thereof or interest
(including Liquidated Damages, if any) or premium, if any, thereon payable in
any coin or currency other than that provided in the Notes, or modify the
provisions of the Indenture with respect to the subordination of the Notes in a
manner adverse to the Noteholders, or change the obligation of the Company to
make repayment of any Note on a Repurchase Date in a manner adverse to the
holder of the Notes, or impair the right to convert the Notes into Common Stock
subject to the
106
terms set forth in the Indenture, including Section 15.6 thereof, without the
consent of the holder of each Note so affected or (ii) reduce the aforesaid
percentage of Notes, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of all Notes then
outstanding. If any Event of Default shall have occurred and be continuing, the
Trustee or the holders of not less than 25 percent in aggregate principal amount
of the Notes then outstanding, by notice in writing to the Company (and to the
Trustee if given by Noteholders), may declare the principal of, and premium, if
any, on all the Notes and the interest (including Liquidated Damages, if any)
accrued thereon to be due and payable immediately, and upon any such declaration
the same shall become and shall be immediately due and payable, anything in the
Indenture or in this Note contained to the contrary notwithstanding. It is also
provided in the Indenture that, prior to any declaration accelerating the
maturity of the Notes, the holders of a majority in aggregate principal amount
of the Notes at the time outstanding may on behalf of the holders of all of the
Notes waive any past default or Event of Default under the Indenture and its
consequences except a default in the payment when due of principal of and
premium, if any, and accrued interest (including Liquidated Damages, if any) on
Notes, a default in the payment of redemption price pursuant to Article III
thereof, a failure by the Company to convert any Notes into Common Stock or a
default in respect of a covenant or provision in the Indenture which under
Article XI thereof cannot be modified or amended without the consent of holders
of all Notes outstanding. The holders of a majority in aggregate principal
amount of the Notes then outstanding shall have the right to direct the time,
method of conducting any proceedings for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee subject to certain
limitations specified in the Indenture. Any such consent or waiver by the holder
of this Note (unless revoked as provided in the Indenture) shall be conclusive
and binding upon such holder and upon all future holders and owners of this Note
and any Notes which may be issued in exchange or substitute hereof, irrespective
of whether or not any notation thereof is made upon this Note or such other
Notes.
The indebtedness evidenced by the Notes is, to the extent and in
the manner provided in the Indenture, expressly subordinate and subject in right
of payment to the prior payment in full of all Senior Indebtedness of the
Company, as defined in the Indenture, whether outstanding at the date of the
Indenture or thereafter incurred, and this Note is issued subject to the
provisions of the Indenture with respect to such subordination. Each holder of
this Note, by accepting the same, agrees to and shall be bound by such
provisions and authorizes the Trustee on its behalf to take such action as may
be necessary or appropriate to effectuate the subordination so provided and
appoints the Trustee its attorney-in-fact for such purpose.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and premium, if
any, and interest (including Liquidated Damages, if any) on this Note at the
place, at the respective times, at the rate and in the coin or currency herein
prescribed.
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107
The Notes are issuable in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000. At the office or
agency of the Company referred to on the face hereof, and in the manner and
subject to the limitations provided in the Indenture, without payment of any
service charge but with payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration or
exchange of Notes, Notes may be exchanged for a like aggregate principal amount
of Notes of other authorized denominations.
The Notes will not be redeemable at the option of the Company
prior to March 20, 2001. At any time on or after March 20, 2001 and prior to
maturity, subject to the terms of the Indenture, the Notes may (unless
theretofore repaid or converted) be redeemed at the option of the Company as a
whole, or from time to time in part, upon mailing of a notice of such redemption
not less than 30 days before the date fixed for redemption to the holders of
Notes at their last registered addresses, all as provided in the Indenture, at
the following redemption prices (expressed as percentages of the principal
amount), together in each case with accrued interest to, but excluding, the date
fixed for redemption: if redeemed during the period beginning March 20, 2001 and
ending on March 14, 2002 at a redemption price of 102.125%, if redeemed during
the 12-month period beginning March 15, 2002 at a redemption price of 101.417%,
if redeemed during the 12- month period beginning March 15, 2003 at a redemption
price of 100.708% and 100% at March 15, 2004; provided that if the date fixed
for redemption is on March 15 or September 15, then the interest payable on such
date shall be paid to the holder of record on the next preceding March 1 or
September 1, respectively.
The Notes are not subject to redemption through the operation of
any sinking fund.
If a Fundamental Change occurs at any time while Notes are
outstanding, each holder of Notes shall have the right, at such holder's option,
subject to the terms of the Indenture, to require the Company to redeem all of
such holder's Notes on the date that is 30 days (or, if such 30th day is not a
Business Day, the next succeeding Business Day) after the Company Notice (as
defined below) of such Fundamental Change. The Company shall redeem such Notes
at a price equal to 100% of the principal amount thereof; provided in each case
that if the Applicable Price is less than the Reference Market Price, the
Company shall redeem such Notes at a price equal to the foregoing repayment
price multiplied by the fraction obtained by dividing the Applicable Price by
the Reference Market Price; provided that if such repayment date is March 15 or
September 15, then the interest payable on such date shall be paid to the holder
of record of the Note on the next preceding March 1 or September 1. In each
case, the Company shall also pay to such holder accrued interest to, but
excluding, the Repurchase Date on the redeemed Notes. On or before the tenth day
after the occurrence of a Fundamental Change, the Company, or, at its written
request, the Trustee in the name of and at the expense of the Company, shall
mail or cause to be mailed to all holders of record on the date of the
Fundamental Change a notice (the "Company Notice") of the occurrence of such
Fundamental Change and of the redemption right at the option of the holders
arising as a result thereof. The
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Company shall also use its best efforts to have a notice published at least once
in each of Bloomberg Business News, Dow Xxxxx News (DJN) and Xxxxxx Financial
Report in The City of New York on or before the tenth day after the occurrence
of a Fundamental Change. The Company shall promptly deliver a copy of each of
the published notices and Company Notice to the Trustee. No failure of the
Company to give the foregoing notices and no defect therein shall limit the
Noteholders' redemption rights or affect the validity of the proceedings for the
redemption of the Notes.
For a Note to be repaid at the option of the holder resulting
from a Fundamental Change, the Company must receive at the office or agency of
the Company maintained for that purpose in accordance with the terms of the
Indenture, or at the option of such holder, the Corporate Trust Office, such
Note with a form entitled "Option to Elect Repayment Upon a Fundamental Change"
on the reverse thereof duly completed together with such Note, duly endorsed at
any time on or before the 30th day after the Company Notice (or if such 30th day
is not a Business Day, the immediately preceding Business Day). In order to
exercise the repayment option with respect to any interest in a Note in global
form, the beneficial holder must comply with the applicable procedures of the
Depositary, furnish appropriate endorsements and documentation if required by
the Company or the Trustee or paying agent and such notice shall not have been
withdrawn.
Subject to and upon compliance with the provisions of the
Indenture, the holder hereof shall have the right, at its option, at any time
after 90 days following the latest date of original issuance of the Notes and
prior to the close of business on March 15, 2004, or, as to all or any portion
hereof called for redemption, prior to the close of business on the Business Day
immediately preceding the date fixed for redemption (unless the Company shall
default in payment due upon redemption thereof), to convert the principal hereof
or any portion of such principal which is $1,000 or an integral multiple hereof,
into that number of shares of Common Stock (as said shares shall then be
constituted) at the date of conversion, obtained by dividing the principal
amount of this Note or portion hereof surrendered for by $48.204 (the
"Conversion Price") or such Conversion Price as adjusted from time to time as
provided in the Indenture, upon surrender of this Note, together with a
conversion notice as provided in the Indenture, to the Company at the office or
agency of the Company maintained for that purpose in accordance with the terms
of the Indenture, or at the option of such holder, the Corporate Trust Office,
and, unless the shares issuable on conversion are to be issued in the same name
as this Note, duly endorsed by, or accompanied by instruments of transfer in
form satisfactory to the Company duly executed by, the holder or by its duly
authorized attorney. No adjustment in respect of interest or dividends will be
made upon any conversion; provided, however, that if this Note shall be
surrendered for conversion during the period from the close of business on any
record date for the payment of interest to the close of business on the Business
Day next preceding the interest payment date, this Note (unless it or the
portion being converted shall have been called for redemption on a date fixed
for redemption which occurs during the period from the close of business on any
record date for the payment of interest to the close of business on the Business
Day next preceding the interest payment date) must be accompanied
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by an amount, in New York Clearing House funds or other funds acceptable to the
Company, equal to the interest payable on such interest payment date on the
principal amount being converted. No fractional shares will be issued upon any
conversion, but an adjustment in cash will be made, as provided in the
Indenture, in respect of any fraction of a share which would otherwise be
issuable upon the surrender of any Note or Notes for conversion.
Any Notes called for redemption, unless surrendered for
conversion on or before the close of business on the date fixed for redemption,
may be deemed to be purchased from the holder of such Notes at an amount equal
to the applicable redemption price, together with accrued interest (including
Liquidated Damages, if any) to (but excluding) the date fixed for redemption, by
one or more investment bankers or other purchasers who may agree with the
Company to purchase such Notes from the holders thereof and convert them into
Common Stock of the Company and to make payment for such Notes as aforesaid to
the Trustee in trust for such holders.
Upon due presentment for registration of transfer of this Note at
the office or agency of the Company maintained for that purpose in accordance
with the terms of the Indenture, or at the option of the holder of this Note, at
the Corporate Trust Office, a new Note or Notes of authorized denominations for
an equal aggregate principal amount will be issued to the transferee in exchange
thereof; subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection therewith.
The Company, the Trustee, any authenticating agent, any paying
agent, any conversion agent and any Note registrar may deem the Person in whose
name this Note shall be registered upon the Register to be, and treat him as the
absolute owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by anyone
other than the Company or any Note registrar), for the purpose of receiving
payment hereof, or on account of the principal of and premium, if any, and
interest (including Liquidated Damages, if any) on this Note, for the conversion
hereof and for all other purposes, and neither the Company nor the Trustee nor
any other authenticating agent nor any paying agent nor any other conversion
agent nor any Note registrar shall be affected by any notice to the contrary.
All payments made to or upon the order of such registered holder shall be valid,
and, to the extent of the sum or sums paid, effectual to satisfy and discharge
liability for monies payable on this Note.
No recourse for the payment of the principal of or premium, if
any, or interest (including Liquidated Damages, if any) on this Note, or for any
claim based hereon or otherwise in respect hereof, and no recourse under or upon
any obligation, covenant or agreement of the Company in the Indenture or any
indenture supplemental thereto or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, employee, agent, officer or director or subsidiary, as such, past,
present or future, of the Company or of any successor corporation, either
directly or
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110
through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
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ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT -- ___________ Custodian of __________
TEN ENT - as tenants by the (Cust) (Minor)
entireties Under Uniform Gifts to Minors Act
JT TEN - as joint tenants with
right of survivorship ______________________________________________
and not as tenants in (State)
common
Additional abbreviations may also be used
though not in the above list.
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112
CONVERSION NOTICE
To: CKE RESTAURANTS, INC.
The undersigned registered owner of this Note hereby irrevocably
exercises the option to convert this Note, or the portion hereof (which is
$1,000 or an integral multiple thereof) below designated, into shares of Common
Stock of CKE Restaurants, Inc. in accordance with the terms of the Indenture
referred to in this Note, and directs that the shares issuable and deliverable
upon such conversion, together with any check in payment for fractional shares
and any Notes representing any unconverted principal amount hereof, be issued
and delivered to the registered holder hereof unless a different name has been
indicated below. If shares or any portion of this Note not converted are to be
issued in the name of a person other than the undersigned, the undersigned will
complete the appropriate section below and pay all transfer taxes payable with
respect thereto. Any amount required to be paid to the undersigned on account of
interest accompanies this Note.
Dated:____________________
---------------------------------
---------------------------------
Signature(s)
Signature(s) must be guaranteed by an
eligible guarantor institution (banks, stock
brokers, savings and loan associations and
credit unions with membership in an approved
signature guarantee medallion program)
pursuant to SEC Rule 17Ad-15 if shares of
Common Stock are to be issued, or Notes to
be delivered, other than to and in the name
of the registered holder.
---------------------------------
Signature Guarantee
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113
Fill in for registration of shares of Common Stock if to be issued, and Notes if
to be delivered, other than to and in the name of the registered holder:
-----------------------------
(Name)
-----------------------------
(Street Address)
-----------------------------
(City, State and Zip Code)
Please print name and address
Principal amount to be converted
(if less than all): $___________
---------------------------------
Social Security or Other Taxpayer
Identification Number
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114
OPTION TO ELECT REPAYMENT
UPON A FUNDAMENTAL CHANGE
To: CKE RESTAURANTS, INC.
The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from CKE Restaurants, Inc. (the "Company") as
to the occurrence of a Fundamental Change with respect to the Company and
requests and instructs the Company to repay the entire principal amount of this
Note below designated, in accordance with the terms of the Indenture referred to
in this Note at the repayment price, together with accrued interest to, but
excluding, such date, to the registered holder hereof.
Dated: ______________________ _____________________________________
_____________________________________
Signature(s)
NOTICE: The above signatures of the
holder(s) hereof must correspond with the
name as written upon the face of the Note in
every particular without alteration or
enlargement or any change whatever.
Principal amount to be repaid (not less than
all for Notes in certificated form): $______
______________________________________
Social Security or Other Taxpayer
Identification Number
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ASSIGNMENT
For value received ________________________ hereby sell(s), assign(s) and
transfer(s) unto _____________________ (Please insert social security or other
Taxpayer Identification Number of assignee) the within Note, and hereby
irrevocably constitutes and appoints ________________ attorney to transfer the
said Note on the books of CKE Restaurants, Inc. with full power of substitution
in the premises.
[For Restricted Securities only:
In connection with any transfer of the Note within the period prior to
the expiration of the holding period applicable to sales thereof under Rule
144(k) under the Securities Act of 1933, as amended (or any successor
provision), the undersigned confirms that such Note is being transferred:
[ ] To CKE Restaurants, Inc. or a subsidiary thereof; or
[ ] Pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended; or
[ ] Pursuant to and in compliance with Regulation S under the
Securities Act of 1933, as amended; or
[ ] Pursuant to and in compliance with Rule 144 under the Securities
Act of 1933, as amended;
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of CKE Restaurants, Inc. as defined in
Rule 144 under the Securities Act of 1933, as amended (an "Affiliate").
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[ ] The transferee is an Affiliate of CKE Restaurants, Inc.]
Dated:____________________
_________________________________
_________________________________
Signature(s)
Signature(s) must be guaranteed by an
eligible guarantor institution (banks, stock
brokers, savings and loan associations and
credit unions with membership in an approved
signature guarantee medallion program)
pursuant to SEC Rule 17Ad-15 if shares of
Common Stock are to be issued, or Notes to
be delivered, other than to and in the name
of the registered holder.
_________________________________
Signature Guarantee
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