FINE HOST CORPORATION
Issuer,
and
THE BANK OF NEW YORK,
Trustee
INDENTURE
Dated as of October 27, 1997
$200,000,000
5% Convertible Subordinated Notes due 2004
iv
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions....................................................1
Section 1.2. Incorporation by Reference of TIA..............................8
Section 1.3. Rules of Construction..........................................8
ARTICLE II........THE NOTES
Section 2.1. Form and Dating................................................9
Section 2.2. Execution and Authentication...................................9
Section 2.3. Registrar and Paying Agent....................................10
Section 2.4. Paying Agent to Hold Assets in Trust..........................10
Section 2.5. Noteholder Lists..............................................11
Section 2.6. Transfer and Exchange.........................................11
Section 2.7. Replacement Notes.............................................16
Section 2.8. Outstanding Notes.............................................16
Section 2.9. Treasury Notes................................................17
Section 2.10. Temporary Notes..............................................17
Section 2.11. Cancellation.................................................17
Section 2.12. Defaulted Interest...........................................17
Section 2.13. CUSIP Numbers................................................18
ARTICLE III.......REDEMPTION
Section 3.1. Right of Redemption...........................................19
Section 3.2. Notices to Trustee............................................19
Section 3.3. Selection of Notes to Be Redeemed.............................19
Section 3.4. Notice of Redemption..........................................19
Section 3.5. Effect of Notice of Redemption................................20
Section 3.6. Deposit of Redemption Price...................................21
Section 3.7. Notes Redeemed in Part........................................21
ARTICLE IV........COVENANTS
Section 4.1. Payment of Notes..............................................21
Section 4.2. Maintenance of Office or Agency...............................22
Section 4.3. Corporate Existence...........................................22
Section 4.4. Payment of Taxes and Other Claims.............................22
Section 4.5. Maintenance of Properties and Insurance.......................23
Section 4.6. Compliance Certificate; Notice of Default.....................23
Section 4.7. Reports.......................................................23
Section 4.8. Limitation on Status as Investment Company....................24
Section 4.9. Waiver of Stay, Extension or Usury Laws.......................24
Section 4.10. Rule 144A Information Requirement............................24
ARTICLE V.........SUCCESSOR CORPORATION
Section 5.1. Limitation on Merger, Sale or Consolidation...................24
Section 5.2. Successor Corporation Substituted.............................25
ARTICLE VI........EVENTS OF DEFAULT AND REMEDIES
Section 6.1. Events of Default.............................................25
Section 6.2. Acceleration of Maturity, Rescission and Annulment............27
Section 6.3. Collection of Indebtedness and Suits for Enforcement by
Trustee....................................................................28
Section 6.4. Trustee May File Proofs of Claim..............................28
Section 6.5. Trustee May Enforce Claims Without Possession of Notes........29
Section 6.6. Priorities....................................................29
Section 6.7. Limitation on Suits...........................................30
Section 6.8. Unconditional Right of Holders to Receive Principal, Premium,
Interest and Liquidated Damages............................................30
Section 6.9. Rights and Remedies Cumulative................................31
Section 6.10. Delay or Omission Not Waiver.................................31
Section 6.11. Control by Holders...........................................31
Section 6.12. Waiver of Past Default.......................................31
Section 6.13. Undertaking for Costs........................................32
Section 6.14. Restoration of Rights and Remedies...........................32
ARTICLE VII. TRUSTEE
Section 7.1. Duties of Trustee.............................................32
Section 7.2. Rights of Trustee.............................................33
Section 7.3. Individual Rights of Trustee..................................34
Section 7.4. Trustee's Disclaimer..........................................34
Section 7.5. Notice of Default.............................................35
Section 7.6. Reports by Trustee to Holders.................................35
Section 7.7. Compensation and Indemnity....................................35
Section 7.8. Replacement of Trustee........................................36
Section 7.9. Successor Trustee by Xxxxxx, Etc..............................37
Section 7.10. Eligibility; Disqualification................................37
Section 7.11. Preferential Collection of Claims Against Company............37
Section 7.12. Other Capacities.............................................37
ARTICLE VIII. SATISFACTION AND DISCHARGE
Section 8.1. Satisfaction and Discharge of Indenture.......................38
Section 8.2. Repayment to the Company......................................38
ARTICLE IX........AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1. Supplemental Indentures Without Consent of Holders............38
Section 9.2. Amendments, Supplemental Indentures and Waivers with Consent of
Holders....................................................................39
Section 9.3. Compliance with TIA...........................................40
Section 9.4. Revocation and Effect of Consents.............................40
Section 9.5. Notation on or Exchange of Notes..............................40
Section 9.6. Trustee to Sign Amendments, Etc...............................41
ARTICLE X.........MEETINGS OF NOTEHOLDERS
Section 10.1. Purposes for Which Meetings May Be Called....................41
Section 10.2. Manner of Calling Meetings...................................41
Section 10.3. Calling of Meetings by the Company or Holders................42
Section 10.4. Who May Attend and Vote at Meetings..........................42
Section 10.5. Regulations May Be Made by Trustee; Conduct of the Meeting:
Voting Rights: Adjournment.................................................42
Section 10.6. Voting at the Meeting and Record to Be Kept..................43
Section 10.7. Exercise of Rights of Trustee or Holders May Not Be Hindered or
Delayed by Call of Meeting.................................................43
ARTICLE XI........ RIGHT TO REQUIRE REPURCHASE UPON A CHANGE OF CONTROL
Section 11.1. Repurchase of Notes at Option of the Holder Upon a Change of
Control....................................................................43
Section 11.2. Rescission of Change of Control Determination................45
ARTICLE XII. SUBORDINATION
Section 12.1. Notes Subordinated to Senior Indebtedness....................46
Section 12.2. No Payment on Notes in Certain Circumstances.................46
Section 12.3. Notes Subordinated to Prior Payment of All Senior Indebtedness
on Dissolution Liquidation or Reorganization...............................47
Section 12.4. Noteholders to Be Subrogated to Rights of Holders of Senior
Indebtedness...............................................................48
Section 12.5. Obligations of the Company Unconditional.....................48
Section 12.6. Trustee and Other Agents Entitled to Assume Payments Not
Prohibited in Absence of Notice............................................49
Section 12.7. Application by Trustee of Assets Deposited with It...........49
Section 12.8. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness..................................49
Section 12.9. Noteholders Authorize Trustee to Effectuate Subordination of
Notes......................................................................50
Section 12.10. Right of Trustee to Hold Senior Indebtedness................50
Section 12.11. Article XII Not to Prevent Events of Default................50
Section 12.12. No Duty of Trustee and Other Agents to Holders of Senior
Indebtedness...............................................................50
ARTICLE XIII. CONVERSION OF NOTES
Section 13.1. Conversion Privilege.........................................51
Section 13.2. Exercise of Conversion Privilege.............................51
Section 13.3. Fractional Interests.........................................52
Section 13.4. Conversion Price.............................................52
Section 13.5. Adjustment of Conversion Price...............................52
Section 13.6. Continuation of Conversion Privilege in Case of
Reclassification, Change, Merger, Consolidation or Sale of
Assets.....................................................................56
Section 13.7. Notice of Certain Events.....................................57
Section 13.8. Taxes on Conversion..........................................58
Section 13.9. Company to Provide Stock.....................................58
Section 13.10. Disclaimer of Responsibility for Certain Matters............59
Section 13.11. Return of Funds Deposited for Redemption of Converted Notes.59
ARTICLE XIV. MISCELLANEOUS
Section 14.1. TIA Controls.................................................59
Section 14.2. Notices......................................................59
Section 14.3. Communications by Holders with Other Holders.................60
Section 14.4. Certificate and Opinion as to Conditions Precedent...........60
Section 14.5. Statements Required in Certificate or Opinion................61
Section 14.6. Rules by Trustee, Paying Agent, Registrar....................61
Section 14.7. Legal Holidays...............................................61
Section 14.8. Governing Law................................................61
Section 14.9. No Adverse Interpretation of Other Agreements................62
Section 14.10. No Recourse Against Others..................................62
Section 14.11. Successors..................................................62
Section 14.12. Duplicate Originals.........................................62
Section 14.13. Severability................................................62
Section 14.14. Table of Contents, Headings, Etc............................62
Section 14.15. Qualification of Indenture..................................62
Section 14.16. Registration Rights.........................................63
EXHIBIT A - Form of Note.....................................................A-1
EXHIBIT B - Accredited Investor Letter.......................................B-1
EXHIBIT C - Form of Conversion Notice........................................B-1
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -------
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.8; 7.10; 14.2
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.5
(b) 14.3
(c) 14.3
313(a) 7.6
(b)(1) N.A.
(b)(2) 7.6
(c) 7.6; 14.2
(d) 7.6
314(a) 4.6; 13.2
(b) N.A.
(c)(1) 2.2; 7.2; 14.4
(c)(2) 7.2; 14.4
(c)(3) N.A.
(d) N.A.
(e) 14.5
(f) N.A.
315(a) 7.1(b)
(b) 7.5; 7.6; 14.2
(c) 7.1(a)
(d) 2.8; 6.11; 7.1(b)(c)
(e) 6.13
316(a)(last sentence) 2.9
(a)(1)(A) 6.11
(a)(1)(B) 6.12
(a)(2) N.A.
(b) 6.12; 6.7
317(a)(1) 6.3
(a)(2) 6.4
(b) 2.4
318(a) 14.1
_________________________
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemend a part
of the Indenture.
INDENTURE, dated as of October 27, 1997, between FINE HOST
CORPORATION, a Delaware corporation (the "Company"), and THE BANK OF NEW YORK, a
New York banking corporation, as Trustee.
Each party hereto agrees as follows for the benefit of each
other party and for the equal and ratable benefit of the Holders of the
Company's 5% Convertible Subordinated Notes due 2004:
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"Acceleration Notice" shall have the meaning specified in
Section 6.2.
"Affiliate" means any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company. For purposes of this definition, the terms "control," "controlling" and
"controlled" mean the power to direct the management and policies of a person,
directly or through one or more intermediaries, whether through the ownership of
voting securities, by contract, or otherwise.
"Agent" means the Trustee and any Registrar, Paying Agent,
co-Registrar, authenticating agent or Notes Custodian.
"Bankruptcy Law" means Title 11, U. S. Code, or any similar
federal, state or foreign law for the relief of debtors.
"Beneficial Owner" for purposes of the definition of Change of
Control has the meaning attributed to it in Rules 13d-3 and 13d-5 under the
Exchange Act (as in effect on the Issue Date), whether or not applicable, except
that a "person" shall be deemed to have "beneficial ownership" of all shares
that any such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time or upon the occurrence of certain
events.
"Board of Directors" means, with respect to any person, the
Board of Directors of such person or any committee of the Board of Directors of
such person authorized, with respect to any particular matter, to exercise the
power of the Board of Directors of such person.
"Board Resolution" means, with respect to any person, a duly
adopted resolution of the Board of Directors, or any duly authorized committee
thereof, of such person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
"Capitalized Lease Obligation" means, as to any Person, the
obligation of such Person to pay rent or other amounts under a lease to which
such Person is a party that is required to be classified and accounted for as a
capital lease obligation under GAAP.
"Capital Stock" means, with respect to any corporation, any
and all shares, interests, rights to purchase (other than convertible or
exchangeable indebtedness), warrants, options, participations or other
equivalents of or interests (however designated) in stock issued by that
corporation.
"Cash" means such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
"Change of Control" means (i) an event or series of events as
a result of which any "person" or "group" (as such terms are used in Sections
13(d)(3) and 14(d) of the Exchange Act) (excluding the Company or any wholly
owned Subsidiary thereof or any employee benefit plan of the Company or any such
subsidiary) is or becomes, directly or indirectly, the Beneficial Owner of more
than 50% of the Voting Stock, (ii) the completion of any consolidation or merger
of the Company with or into any other Person, or sale, conveyance, transfer or
lease by the Company of all or substantially all of its assets to any Person, or
any merger of any other Person into the Company in a single transaction or
series of related transactions, and, in the case of any such transaction or
series of related transactions, the outstanding Common Stock of the Company is
changed or exchanged as a result, unless the stockholders of the Company
immediately before such transaction own, directly or indirectly, immediately
following such transaction, at least a majority of the combined voting power of
the outstanding voting securities of the Person resulting from such transaction
in substantially the same proportion as their ownership of the Voting Stock
immediately before such transaction, or (iii) such time as the Continuing
Directors do not constitute a majority of the Board of Directors of the Company
(or, if applicable, a successor corporation to the Company); provided that a
Change of Control shall not be deemed to have occurred if either (x) the last
sale price of the Common Stock for any five Trading Days during the 10 Trading
Days immediately preceding the Change of Control is at least equal to 105% of
the Conversion Price in effect on such day, or (y) with respect to a merger or
consolidation otherwise constituting a Change of Control described in clause
(ii) above, at least 90% of the consideration in such transaction or
transactions consists of common stock or securities convertible into common
stock that are, or upon issuance will be, traded on a United States national
securities exchange or approved for quotation on the Nasdaq National Market.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the Company's common stock, par value
$.01 per share, or as such stock may be reconstituted from time to time.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to the Indenture, and thereafter means
such successor.
"Continuing Director" means at any date a member of the
Company's Board of Directors (i) who was a member of such board on the Issue
Date or (ii) who was nominated or elected by at least a majority of the
directors who were Continuing Directors at the time of such nomination or
election or whose election to the Company's Board of Directors was recommended
or endorsed by at least a majority of the directors who were Continuing
Directors at the time of such nomination or election.
"Conversion Price" shall have the meaning specified in Section
13.4.
"Conversion Shares" shall have the meaning specified in
Section 13.5(1).
"Credit Facility" means the Fourth Amended and Restated Loan
Agreement, dated as of July 30, 1997, among the Company, BankBoston, N.A., as
administrative agent, USTrust, as documentation agent, and certain banks and
other financial institutions party thereto, as amended, supplemented or restated
from time to time.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Date of Conversion" shall have the meaning specified in
Section 13.2.
"Default" means any event or condition that is, or after
notice or passage of time or both would be, an Event of Default.
"Defaulted Interest" shall have the meaning specified in
Section 2.12.
"Definitive Notes" means Notes that are in the form of Note
attached hereto as Exhibit A that do not include the information called for by
footnotes 1 and 3 thereof.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the person specified in Section 2.3
as the Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"Disqualified Capital Stock" means, with respect to the
Company, Capital Stock of the Company that, by its terms or by the terms of any
security into which it is convertible, exercisable or exchangeable, is, or upon
the happening of an event or the passage of time would be, required to be
redeemed or repurchased (including at the option of the holder thereof) by the
Company, in whole or in part, on or prior to the Stated Maturity of the Notes,
provided that only the portion of such Capital Stock which is so convertible,
exercisable, exchangeable or redeemable or subject to repurchase prior to such
Stated Maturity shall be deemed to be Disqualified Capital Stock.
"Distribution Date" shall have the meaning specified in
Section 13.5(1).
"DTC" shall have the meaning specified in Section 2.3.
"Event of Default" shall have the meaning specified in Section
6.1.
"Exchange Act" means the Notes Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Expiration Time" shall have the meaning specified in Section
13.5(f).
"GAAP" means United States generally accepted accounting
principles set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession which are in effect in the United States; provided,
however, that for purposes of determining compliance with covenants in the
Indenture, "GAAP" means such generally accepted accounting principles which are
in effect as of the Issue Date.
"Global Note" means a Note that contains the paragraph
referred to in footnote 1 and the additional schedule referred to in footnote 3
to the form of Note attached hereto as Exhibit A. There shall be separate Global
Notes, with separate CUSIP Numbers, to evidence interests (x) in the Notes held
by "qualified institutional buyers," as defined in Rule 144A under the
Securities Act, and (y) in the Notes held by persons who acquired their interest
in the Notes in compliance with Regulation S under the Securities Act.
"Holder" or "Noteholder" means the person in whose name a Note
is registered on the Registrar's books.
"Indebtedness" of any Person means, without duplication, (a)
all liabilities and obligations, contingent or otherwise, of any such Person,
(i) in respect of borrowed money (whether or not the lender has recourse to all
or any portion of the assets of such Person), (ii) evidenced by credit or loan
agreements, bonds, notes, debentures or similar instruments (including, without
limitation, notes or similar instruments given in connection with the
acquisition of any business, properties or assets of any kind), (iii) evidenced
by bankers' acceptances or similar instruments issued or accepted by banks, (iv)
for the payment of money relating to a Capitalized Lease Obligation or (v)
evidenced by a letter of credit or a reimbursement obligation of such Person
with respect to any letter of credit; (b) all obligations of such Person issued
or assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (c) all net obligations of such person under Interest Swap and
Hedging Obligations; (d) all liabilities of others of the kind described in the
preceding clauses (a), (b) or (c) that such Person has guaranteed or that is
otherwise its legal liability, or which is secured by a lien on property of such
Person, and all obligations to purchase, redeem or acquire any Capital Stock;
and (e) any and all deferrals, renewals, extensions, modifications,
replacements, restatements, refinancings and refundings (whether direct or
indirect) of, or any indebtedness or obligation issued in exchange for, any
liability of the kind described in any of the preceding clauses (a), (b), (c) or
(d), or this clause (e), whether or not between or among the same parties.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
"Initial Purchasers" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, NationsBanc Xxxxxxxxxx Securities, Inc., Xxxxx Xxxxxx
Inc. and Xxxxx Xxxxxxx Inc.
"Interest Payment Date" means the stated due date of an
installment of interest on the Notes.
"Interest Swap and Hedging Obligation" means the obligations
of any Person under any interest rate or currency protection agreement, future
agreement, option agreement, swap agreement, cap agreement or other interest
rate or currency hedge agreement, collar agreement or other similar agreement or
arrangement to which such Person is a party or beneficiary.
"Issue Date" means the date of first issuance of the Notes
under this Indenture.
"Junior Securities" means any Qualified Capital Stock and any
Indebtedness of the Company that is fully subordinated in right of payment to
the Notes and has no scheduled installment of principal due, by redemption,
sinking fund payment or otherwise, on or prior to the Stated Maturity of the
Notes.
"Last Sale Price" shall have the meaning specified in Section
13.3.
"Legal Holiday" shall have the meaning specified in Section
14.7.
"Lien" means any mortgage, lien, pledge, charge, security
interest or other encumbrance of any kind, whether or not filed, recorded or
otherwise perfected under applicable law (including any conditional sale or
other title retention agreement and any lease deemed to constitute a security
interest and any option or other agreement to give any security interest).
"Liquidated Damages" shall have the meaning specified in the
Registration Rights Agreement.
"non-electing share" shall have the meaning specified in
Section 13.6.
"Non-Payment Default" shall have the meaning specified in
Section 12.2(b).
"Notes" means, collectively, the 5% Convertible Subordinated
Notes due 2004, as amended or supplemented from time to time in accordance with
the terms hereof, issued under this Indenture.
"Notes Custodian" means the Trustee, as custodian with respect
to the Notes in global form, or any successor entity thereto.
"Notice of Default" shall have the meaning specified in
Section 6.1(3), (4) or (5).
"Offer" shall have the meaning specified in Section 13.5(f).
"Officer" means, with respect to the Company, the Chief
Executive Officer, the President, any Vice President, the Chief Financial
Officer, the Treasurer, the Controller, or the Secretary or an Assistant
Secretary of the Company.
"Officers' Certificate" means, with respect to the Company, a
certificate signed by two Officers of the Company and otherwise complying with
the requirements of Section 2.2, if applicable, and Sections 14.4 and 14.5;
provided, however, that for the purposes of Section 4.6(a), "Officers'
Certificate" means a certificate signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee and which complies with the
requirements of Sections 14.4 and 14.5, to the extent applicable thereto.
"Paving Agent" shall have the meaning specified in Section
2.3.
"Payment Blockage Period" shall have the meaning specified in
Section 12.2(b).
"Payment Default" shall have the meaning specified in Section
12.2(a).
"Payment Notice" shall have the meaning specified in Section
12.2(b).
"Person" or "person" means any corporation, individual,
limited liability company, joint stock company, joint venture, partnership,
unincorporated association, governmental regulatory entity, country, state or
political subdivision thereof, trust, municipality or other entity.
"principal" of any Indebtedness means the principal of such
Indebtedness plus, without duplication, any applicable premium, if any, on such
Indebtedness.
"property" means any right or interest in or to property or
assets of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible.
"Purchase Agreement" means that certain Purchase Agreement,
dated October 21, 1997, by and among the Company and the Initial Purchasers, as
such agreement may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
"Purchased Shares" shall have the meaning specified in Section
13.5(f).
"Qualified Capital Stock" means any Capital Stock of the
Company that is not Disqualified Capital Stock.
"Record Date" means a Record Date specified in the Notes
whether or not such Record Date is a Business Day.
"Redemption Date," when used with respect to any Note to be
redeemed, means the date fixed for such redemption pursuant to Article III of
this Indenture and Paragraph 5 in the form of Note attached hereto as Exhibit A.
"Redemption Price," when used with respect to any Note to be
redeemed, means the redemption price for such redemption pursuant to Paragraph 5
in the form of Note attached hereto as Exhibit A, which shall include, without
duplication, in each case, accrued and unpaid interest and Liquidated Damages,
if any, to and including the Redemption Date.
"Registrar" shall have the meaning specified in Section 2.3.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated the date hereof, by and among the Initial Purchasers and the
Company, as such agreement may be amended, modified or supplemented from time to
time in accordance with the terms thereof.
"Repurchase Date" shall have the meaning specified in Section
11.1(a).
"Repurchase Offer" shall have the meaning specified in Section
11.1(b).
"Repurchase Offer Period" shall have the meaning specified in
Section 11.1(b).
"Repurchase Price" shall have the meaning specified in Section
11.1(a).
"Repurchase Put Date" shall have the meaning specified in
Section 11.1(b).
"Restricted Note" means a Note, unless or until it has been
(i) disposed of in a transaction effectively registered under the Securities Act
or (ii) distributed to the public pursuant to Rule 144 (or any similar provision
then in force) under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Senior Indebtedness" means all obligations of the Company to
pay the principal of, premium, if any, interest (including all interest accruing
subsequent to the commencement of any bankruptcy or similar proceeding, whether
or not a claim for post-petition interest is allowable as a claim in any such
proceeding) and rent payable on or in connection with, and all letters of
credit, reimbursement obligations and fees, costs, expenses and other amounts
accrued or due on or in connection with, any Indebtedness of the Company,
whether outstanding on the Issue Date or thereafter created, incurred, assumed,
guaranteed or in effect guaranteed by the Company, unless the instrument
creating or evidencing such Indebtedness provides that such Indebtedness is not
senior or superior in right of payment to the Notes or is pari passu with, or
subordinated to, the Notes; provided that in no event shall Senior Indebtedness
include (a) Indebtedness of the Company owed or owing to any Subsidiary of the
Company, (b) Indebtedness representing or with respect to any account payable or
other accrued current liability or obligation incurred in the ordinary course of
business in connection with the obtaining of materials or services or (c) any
liability for taxes owed or owing by the Company or any Subsidiary of the
Company.
"Shelf Registration Statement" shall have the meaning
specified in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" of the Company within the meaning of Rule 1.02(w) of
Regulation S-X promulgated by the Commission as in effect as of the Issue Date.
"Special Record Date" for payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 2.12.
"Stated Maturity," when used with respect to any Note, means
November 1, 2004.
"Subsidiary" with respect to any Person, means (i) a
corporation a majority of whose Capital Stock with voting power normally
entitled to vote in the election of directors is at the time, directly or
indirectly, owned by such Person, by such Person and one or more Subsidiaries of
such Person or by one or more Subsidiaries of such Person, (ii) a partnership in
which such Person or a Subsidiary of such Person is, at the time, a general
partner and owns alone or together with one or more Subsidiaries of such Person
a majority of the partnership interests, or (iii) any other Person (other than a
corporation) in which such Person, one or more Subsidiaries of such Person or
such Person and one or more Subsidiaries of such Person, directly or indirectly,
at the date of determination thereof, has at least majority ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.
Codess.ss.77aaa-77bbbb) as in effect on the date of the execution of this
Indenture.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday, other than any day on which securities are not traded on the Nasdaq
National Market (or, if the Common Stock is not listed thereon, on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading).
"Transfer Restricted Notes" means Notes that bear or are
required to bear the legend set forth in Section 2.6 hereof.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"Trust Officer" means any officer within the corporate trust
division (or any successor group) of the Trustee including without limitation
any vice president, assistant vice president, assistant treasurer, corporate
trust officer or any other officer or employee of the Trustee customarily
performing functions similar to those performed by the Persons who at that time
shall be such officers or employees, and also means, with respect to a
particular corporate trust matter, any other officer of the Trustee to whom such
trust matter is referred because of his knowledge of and familiarity with the
particular subject.
"Voting Stock" means the combined voting power of the then
outstanding securities entitled to vote generally in elections of directors,
managers or trustees, as applicable, of the Company or any successor entity.
Section 1.2. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"Indenture securities" means the Notes.
"Indenture noteholder" means a Holder or a Noteholder.
"Indenture to be qualified" means this Indenture.
"Indenture trustee" or "institutional trustee" means the
Trustee.
"Obligor" on the indenture securities means the Company and
any other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule and
not otherwise defined herein have the meanings assigned to them thereby.
Section 1.3. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and
words in the plural include the singular;
(5) provisions apply to successive events and
transactions;
(6) "herein," "hereof" and other words of similar
import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(7) references to Sections or Articles means
reference to such Section or Article in this Indenture, unless
stated otherwise.
ARTICLE II.
THE NOTES
Section 2.1. Form and Dating.
The Notes and the Trustee's certificate of authentication, in
respect thereof, shall be substantially in the form of Exhibit A hereto, which
Exhibit is part of this Indenture. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Company shall
approve the form of the Notes and any notation, legend or endorsement on them.
Any such notations, legends or endorsements not contained in the form of Note
attached as Exhibit A hereto shall be delivered in writing to the Trustee. Each
Note shall be dated the date of its authentication.
The terms and provisions contained in the form of Notes 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. If any term or provision of a Note limits, qualifies, or conflicts with
the terms of this Indenture, the terms of this Indenture shall control.
Section 2.2. Execution and Authentication.
Two Officers shall sign, or one Officer shall sign and one
Officer shall attest to, the Notes for the Company by manual or facsimile
signature. The Company's seal may be, but is not required to be, impressed,
affixed, imprinted or reproduced on the Notes and may be in facsimile form.
If an Officer whose signature is on a Note was an Officer at
the time of such execution but no longer holds that or any office at the time
the Trustee authenticates the Note, the Note shall be valid nevertheless and the
Company shall nevertheless be bound by the terms of the Notes and this
Indenture.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note but such
signature shall be conclusive evidence that the Note has been authenticated
pursuant to the terms of this Indenture.
The Trustee shall authenticate the Notes for original issue in
the aggregate principal amount of up to $200,000,000 upon a written order of the
Company in the form of an Officers' Certificate. The Officers' Certificate shall
specify (i) the amount of Notes to be authenticated and (ii) the date or dates
on which the Notes are to be authenticated. The aggregate principal amount of
Notes outstanding at any time may not exceed $200,000,000 except as provided in
Section 2.7; provided that Notes in excess of $175,000,000 shall not be issued
other than pursuant to the exercise of the over-allotment option granted by the
Company to the Initial Purchasers as provided in the Purchase Agreement. Upon
the written order or orders of the Company in the form of an Officers'
Certificate, the Trustee shall authenticate Notes in substitution of Notes
originally issued to reflect any name change of the Company.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. Unless otherwise provided in the appointment,
an authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company, any Affiliate of the Company, or any of their
respective Subsidiaries, and has the same protections under the Indenture.
Notes shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
Section 2.3. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough
of Manhattan, The City of New York, where Notes may be presented for
registration of transfer or for exchange ("Registrar") and an office or agency
where Notes may be presented for payment ("Paying Agent") and where notices and
demands to or upon the Company in respect of the Notes may be served. The
Company may act as Registrar or Paying Agent, except that, for the purposes of
Articles III, VIII and XI and as otherwise specified in the Indenture, neither
the Company nor any Affiliate of the Company shall act as Paying Agent. The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may have one or more co-Registrars and one or more additional Paying
Agents. The term "Paying Agent" includes any additional Paying Agent. The
Company hereby initially appoints the Trustee as Registrar and Paying Agent, and
the Trustee hereby initially agrees so to act.
The Company shall enter into an appropriate written agency
agreement with any Agent not a party to this Indenture, which agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall promptly notify the Trustee in writing of the name and address of
any such Agent. If the Company fails to maintain a Registrar or Paying Agent,
the Trustee shall act as such.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as Notes
Custodian with respect to the Global Notes.
Section 2.4. Paying Agent to Hold Assets in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all assets held by the Paying Agent for the
payment of principal of, premium, if any, interest on or Liquidated Damages with
respect to, the Notes (whether such assets have been distributed to it by the
Company or any other obligor on the Notes), and shall promptly notify the
Trustee in writing of any Default in making any such payment. If either of the
Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate
such assets and hold them as a separate trust fund for the benefit of the
Holders or the Trustee. The Company at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any Payment
Default, upon written request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have been
delivered by the Company to the Paying Agent, the Paying Agent (if other than
the Company or an Affiliate of the Company) shall have no further liability for
such assets.
Section 2.5. Noteholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee on or before the third Business Day preceding each
Interest Payment Date and at such other times as the Trustee may request in
writing a list in such form and as of such date as the Trustee reasonably may
require of the names and addresses of Holders.
Section 2.6. Transfer and Exchange.
(a) Transfer and Exchange of Definitive Notes. When Definitive Notes
are presented to the Registrar or a co-Registrar with a request:
(x) to register the transfer of such Definitive
Notes; or
(y) to exchange such Definitive Notes for an equal
principal amount of Definitive Notes of other authorized
denominations;
the Registrar or co-Registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Notes surrendered for transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably
satisfactory to the Company and the Registrar or
co-Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing; and
(ii) in the case of a Definitive Note that is a Transfer
Restricted Note, shall be accompanied by the
following additional information and documents, as
applicable:
(A) if such Definitive Note is being delivered to the
Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to
that effect (in substantially the form set forth on the Note);
or
(B) if such Definitive Note is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A under
the Securities Act) in accordance with Rule 144A under the
Securities Act, a certification to that effect (in
substantially the form set forth on the Note); or
(C) if such Definitive Note is being transferred to
an institutional investor that is an "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under
the Securities Act, a certification to that effect (in
substantially the form set forth on the Note) accompanied by a
certificate in the form of Exhibit B to the Indenture to the
Trustee and if either the Trustee or the Company so requests,
an Opinion of Counsel satisfactory to the Company to the
effect that such transfer is in compliance with the Securities
Act;
(D) if such Definitive Note is being transferred in
accordance with Regulation S under the Securities Act, a
certification to that effect (in substantially the form set
forth on the Note) and if either the Trustee or the Company so
requests, an Opinion of Counsel satisfactory to the Company,
the Trustee and the Registrar to the effect that such transfer
is in compliance with the Securities Act; or
(E) if such Definitive Note is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification to that
effect (in substantially the form set forth on the Note) and
if either the Trustee or the Company so requests, an Opinion
of Counsel satisfactory to the Company to the effect that such
transfer is in compliance with the Securities Act.
(a) Restrictions on Transfer of a Definitive Note for a Beneficial
Interest in a Global Note. A Definitive Note may not be exchanged for a
beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive Note,
duly endorsed or accompanied by appropriate instruments of transfer in form
reasonably satisfactory to the Company and the Registrar or Co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing,
together with:
(i) if such Definitive Note is a Transfer Restricted Note,
certification, substantially in the form set forth on the Note, that
such Definitive Note is being transferred (x) to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act)
in accordance with Rule 144A under the Securities Act or (y) in
accordance with Regulation S under the Securities Act; and
(ii) whether or not such Definitive Note is a Transfer
Restricted Note, written instructions directing the Trustee to make, or
to direct the Notes Custodian to make, an endorsement on the Global
Note to reflect an increase in the aggregate principal amount of the
Notes represented by the applicable Global Note;
then the Trustee shall cancel such Definitive Note and cause, or direct the
Notes Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Notes Custodian, the
aggregate principal amount of Notes represented by the appropriate Global Note
to be increased accordingly. If no Global Notes are then outstanding, the
Company shall issue and the Trustee shall authenticate an appropriate new Global
Note in the appropriate principal amount.
(b) Transfer and Exchange of Global Notes. The transfer and exchange of
Global Notes or beneficial interests therein 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.
(c) Transfer of a Beneficial Interest in a Global Note for a Definitive
Note.
(i) Upon receipt by the Trustee of written instructions or
such other form of instructions as is customary for the Depositary from
the Depositary or its nominee on behalf of any Person having a
beneficial interest in a Global Note and upon receipt by the Trustee of
a written order or such other form of instructions as is customary for
the Depositary or the Person designated by the Depositary as having
such a beneficial interest in a Transfer Restricted Note only, the
following additional information and documents shall be required to be
delivered to the Trustee (all of which may be submitted by facsimile):
(A) if such beneficial interest is being transferred
to the Person designated by the Depositary as being the
beneficial owner, a certification from such person to that
effect (in substantially the form set forth on the Note); or
(B) if such beneficial interest is being transferred
to a "qualified institutional buyer" (as defined in Rule 144A
under the Securities Act) in accordance with Rule 144A under
the Securities Act, a certification to that effect from the
transferor (in substantially the form set forth on the Note);
or
(C) if such beneficial interest is being transferred
to an institutional investor that is an "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under
the Securities Act, a certification to that effect (in
substantially the form set forth on the Note) accompanied by a
certificate in the form of Exhibit B to the Indenture to the
Trustee and if either the Trustee or the Company so requests,
an Opinion of Counsel satisfactory to the Company to the
effect that such transfer is in compliance with the Securities
Act;
(D) if such beneficial interest is being transferred
in accordance with Regulation S under the Securities Act, a
certification to that effect (in substantially the form set
forth on the Note) and if either the Trustee or the Company so
requests, an Opinion of Counsel satisfactory to the Company,
the Trustee and the Registrar to the effect that such transfer
is in compliance with the Securities Act; or
(E) if such beneficial interest is being transferred
in reliance on another exemption from the registration
requirements of the Securities Act, a certification to that
effect from the transferee or transferor (in substantially the
form set forth on the Note) and if either the Trustee or the
Company so requests, an Opinion of Counsel satisfactory to the
Company to the effect that such transfer is in compliance with
the Securities Act;
then the Trustee or the Notes Custodian, at the direction of the Trustee, will
cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Notes Custodian, the aggregate principal amount
of the applicable Global Note to be reduced and, following such reduction, the
Company will execute and, upon receipt of an authentication order in the form of
an Officers' Certificate, the Trustee will authenticate and make available for
delivery to the transferee a Definitive Note.
(i) Definitive Notes issued in exchange for a beneficial
interest in a Global Note pursuant to this Section 2.6(d) 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. The Trustee
shall make such Definitive Notes available for delivery to the persons
in whose names such Notes are so registered.
(d) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.6), a Global Note may
not be transferred as a whole except (i) by the Depositary to a nominee of the
Depositary, (ii) by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or (iii) by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(e) Authentication of Definitive Notes in Absence of Depositary. If at
any time:
(i) the Depositary for the Notes notifies the Company and the
Company notifies the Trustee in writing that the Depositary is no
longer willing or able to continue as Depositary for the Global Notes
and a successor Depositary for the Global Notes is not appointed by the
Company within 90 days after delivery of such notice; or
(ii) the Company, in its sole discretion, notifies the Trustee
in writing that it elects to cause the issuance of Definitive Notes
under this Indenture;
then the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Definitive Notes,
will authenticate and make available for delivery Definitive Notes, in an
aggregate principal amount equal to the principal amount of the Global Notes,
in exchange for such Global Notes.
(f) Legends.
(i) Except as permitted by the following paragraph (ii), each
Note certificate evidencing the Global Notes and the Definitive Notes
(and all Notes issued in exchange therefor or substitution thereof)
shall bear a legend in substantially the following form:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH BELOW. BY
ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AN "IAI"), OR (C)
IT IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR
ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHO THE HOLDER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE
SECURITIES ACT, (C) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE TRANSFER OF THIS SECURITY (THE FORM OF WHICH
CAN BE OBTAINED FROM THE TRUSTEE) AND, IF THE COMPANY SO REQUESTS, AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S UNDER THE
SECURITIES ACT, (E) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND BASED UPON
AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, THE TRUSTEE AND THE
REGISTRAR OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND,
IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND
"UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS SECURITY IN VIOLATION OF THE FOREGOING."
(ii) Upon any sale or transfer of a Transfer Restricted Note
(including any Transfer Restricted Note represented by a Global Note)
pursuant to Rule 144 under the Securities Act or an effective
registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Note that
is a Definitive Note or that is represented by a Global Note,
the Registrar shall permit the Holder thereof to exchange such
Transfer Restricted Note for a Definitive Note that does not
bear the legend set forth above and rescind any restriction on
the transfer of such Transfer Restricted Note (1) in the case
of a sale or transfer pursuant to Rule 144 under the
Securities Act, after delivery of a customary Opinion of
Counsel satisfactory to the Company to the effect that such
transfer is in compliance with the Securities Act or (2) in
the case of a sale or transfer pursuant to an effective
registration statement under the Securities Act; and
(B) any such Transfer Restricted Note represented by
a Global Note shall not be subject to the provisions set forth
in (i) above (such sales or transfers being subject only to
the provisions of Section 2.6(c) hereof).
(a) Cancellation and/or Adjustment of Global Note. At such time as all
beneficial interests in a Global Note have either been exchanged for Definitive
Notes, redeemed, repurchased or canceled, such Global Note shall be returned to
or retained and canceled by the Trustee. At any time prior to such cancellation,
if any beneficial interest in a Global Note is exchanged for Definitive Notes,
redeemed, repurchased or canceled, the principal amount of Notes represented by
such Global Note shall be reduced and an endorsement shall be made on such
Global Note, by the Trustee or the Notes Custodian, at the written direction of
the Trustee, to reflect such reduction.
(b) Obligations with respect to Transfers and Exchanges of Definitive
Notes.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Definitive
Notes and Global Notes at the Registrar's or co-Registrar's written
request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments, or similar governmental charge
payable upon exchanges or transfers pursuant to Section 2.2 (fourth
paragraph), 2.10, 3.7, 9.5, or 1 1.1 (final paragraph)).
(iii) The Registrar or co-Registrar shall not be required to
register the transfer of or exchange of (a) any Definitive Note
selected for redemption in whole or in part pursuant to Article III,
except the unredeemed portion of any Definitive Note being redeemed in
part, or (b) any Note for a period beginning 15 days before the mailing
of a notice of an offer to repurchase pursuant to Article XI hereof or
the mailing of a notice of redemption of Notes pursuant to Article III
hereof and ending at the close of business on the day of such mailing.
Section 2.7. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the
Holder of a Note claims and submits an affidavit or other evidence, satisfactory
to the Trustee, to the Trustee to the effect that the Note has been lost,
destroyed or stolen, the Company shall issue and the Trustee shall authenticate
a replacement Note if the Trustee's requirements are met. Such Holder must
provide an indemnity bond or other indemnity, sufficient in the judgment of both
the Company and the Trustee, to protect the Company, the Trustee or any Agent
from any loss which any of them may suffer if a Note is replaced. The Company
may charge such Holder for its reasonable, out-of-pocket expenses in replacing a
Note.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion, but
subject to any conversion rights, may, instead of issuing a new Note, pay such
Note, upon satisfaction of the conditions set forth in the preceding paragraph.
Every new Note issued pursuant to this Section 2.7 in lieu of
any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
such new Note shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 2.7 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies of any Holder with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Notes.
Section 2.8. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee (including any Note represented by a Global Note)
except those canceled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee hereunder,
those paid pursuant to Section 2.7 and those described in this Section 2.8 as
not outstanding. A Note does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Note, except as provided in Section 2.9.
If a Note is replaced pursuant to Section 2.7 (other than a
mutilated Note surrendered for replacement), the replaced Note ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser. A mutilated Note ceases to be
outstanding upon surrender of such Note and replacement thereof pursuant to
Section 2.7.
If on a Redemption Date the Paying Agent (other than the
Company or an Affiliate of the Company) holds Cash sufficient to pay all of the
principal and interest due on the Notes payable on that date in accordance with
Section 3.6 hereof and payment of the Notes called for redemption is not
otherwise prohibited pursuant to Article XII hereof or otherwise, then on and
after that date such Notes cease to be outstanding and interest on them ceases
to accrue.
Section 2.9. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, amendment, supplement, waiver
or consent, Notes owned by the Company or an Affiliate of the Company shall be
disregarded, except that, for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, amendment, supplement,
waiver or consent, only Notes that a Trust Officer of the Trustee actually knows
are so owned shall be disregarded.
Section 2.10. Temporary Notes.
Until Definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form of Definitive Notes but may have variations
that the Company reasonably and in good faith considers appropriate for
temporary Notes. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate Definitive Notes in exchange for temporary Notes.
Until so exchanged, the temporary Notes shall in all respects be entitled to the
same benefits under this Indenture as permanent Notes authenticated and
delivered hereunder.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent (other than
the Company or an Affiliate of the Company), and no one else, shall cancel and
return all Notes surrendered for transfer, exchange, payment or cancellation to
the Company. Subject to Section 2.7, the Company may not issue new Notes to
replace Notes that have been paid or delivered to the Trustee for cancellation.
No Notes shall be authenticated in lieu of or in exchange for any Notes canceled
as provided in this Section 2.11, except as expressly permitted in the form of
Notes and as permitted by this Indenture.
Section 2.12. Defaulted Interest.
Interest on any Note which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the person
in whose name that Note (or one or more predecessor Notes) is registered at the
close of business on the Record Date for such interest.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date plus, to the
extent lawful, any interest payable on the defaulted interest (collectively,
herein called "Defaulted Interest") shall forthwith cease to be payable to the
registered holder on the relevant Record Date, and such Defaulted Interest may
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 proposed to be paid on each
Note and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of Cash equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such Xxxx when
deposited to be held in trust for the benefit of the persons entitled
to such Defaulted Interest as provided in this clause (1). Thereupon
the Trustee shall fix a special record date for the payment of such
Defaulted Interest which shall be not more than 15 Business Days and
not less than 10 Business Days prior to the date of the proposed
payment and not less than 10 Business Days after the receipt by the
Trustee of the notice of the proposed payment ("Special Record Date").
The Trustee shall promptly notify the Company in writing of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder at his address as it appears in the Note
register not less than 10 Business Days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the persons in whose names the
Notes (or their respective predecessor Notes) are registered on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such
notice as may be required by such exchange, if, after written notice
given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.12, each
Note delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Note shall carry the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Note.
Section 2.13. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to the Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify the
Trustee of any change in the "CUSIP" numbers.
ARTICLE III.
REDEMPTION
Section 3.1. Right of Redemption.
Redemption of Notes, as permitted by any provision of this
Indenture, shall be made in accordance with Paragraph 5 of the Notes and this
Article III. The Company will not have the right to redeem any Notes prior to
November 1, 2000. On or after November 1, 2000, the Company will have the right
to redeem all or any part of the Notes at the Redemption Prices specified in
Paragraph 5 therein, in each case including accrued and unpaid interest and
Liquidated Damages, if any, to, but excluding, the Redemption Date. Payments in
respect of the Notes on redemption by the Company are subject to the
subordination provisions set forth in Article XII.
Section 3.2. Notices to Trustee.
If the Company elects to redeem Notes pursuant to Paragraph 5
of the Notes, it shall notify the Trustee in writing of the Redemption Date, the
principal amount of Notes to be redeemed, the Redemption Price and whether it
wants the Trustee to give notice of redemption to the Holders.
The Company shall give each notice to the Trustee provided for
in this Section 3.2 at least 45 days but not more than 60 days before the
Redemption Date (unless a shorter notice period shall be satisfactory to the
Trustee). Any such notice may be canceled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
Section 3.3. Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed pursuant to
Paragraph 5 thereof, the Trustee shall select the Notes to be redeemed on a pro
rata basis, by lot or by such other method as the Trustee shall determine to be
fair and appropriate and in such manner as complies with any applicable
depositary, legal and stock exchange or automated quotation system requirements.
The Trustee shall make the selection from the Notes
outstanding and not previously called for redemption and shall promptly notify
the Company in writing of the Notes selected for redemption and, in the case of
any Note selected for partial redemption, the principal amount thereof to be
redeemed. Notes in denominations of $1,000 may be redeemed only in whole. The
Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Notes that have denominations larger than
$1,000. Provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
Section 3.4. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail a notice of redemption by first-class mail, postage
prepaid, to the Trustee and each Holder whose Notes are to be redeemed at such
Xxxxxx's address as it appears on the security register maintained by the
Registrar. At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. Each notice of
redemption shall identify the Notes to be redeemed and shall state:
(1) the Redemption Date, and that the Notes called
for redemption may not be converted after the Business Day
immediately prior to the Redemption Date;
(2) the Redemption Price, including the amount of
accrued and unpaid interest and Liquidated Damages, if any, to
be paid upon such redemption;
(3) the name, address and telephone number of the
Paying Agent;
(4) that Notes called for redemption must be
surrendered to the Paying Agent at the address specified in
such notice to collect the Redemption Price;
(5) that, unless (a) the Company defaults in its
obligation to deposit Cash with the Paying Agent in accordance
with Section 3.6 hereof or (b) such redemption payment is
prohibited pursuant to Article XII hereof or otherwise,
interest on, and Liquidated Damages with respect to, Notes
called for redemption ceases to accrue on and after the
Redemption Date and the only remaining right of the Holders of
such Notes is to receive payment of the Redemption Price,
including accrued and unpaid interest and Liquidated Damages,
if any, to, but excluding the Redemption Date, upon surrender
to the Paying Agent of the Notes called for redemption and to
be redeemed;
(6) if any Note is being redeemed in part, the
portion of the principal amount, equal to $1,000 or any
integral multiple thereof, of such Note to be redeemed and
that, on or after the Redemption Date, upon surrender of such
Note, a new Note or Notes in aggregate principal amount equal
to the unredeemed portion thereof will be issued;
(7) if less than all the Notes are to be redeemed,
the identification of the particular Notes (or portion
thereof) to be redeemed, as well as the aggregate principal
amount of such Notes to be redeemed;
(8) the CUSIP number of the Notes to be redeemed; and
(9) that the notice is being sent pursuant to this
Section 3.4 and pursuant to the redemption provisions of
Paragraph 5 of the Notes.
Section 3.5. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.4, Notes called for redemption become due and payable on the Redemption Date
and at the Redemption Price, including accrued and unpaid interest and
Liquidated Damages, if any, to the Redemption Date. Upon surrender to the
Trustee or Paying Agent, such Notes called for redemption shall be paid at the
Redemption Price, including accrued and unpaid interest and Liquidated Damages,
if any, to the Redemption Date; provided that if the Redemption Date is after a
regular Record Date and on or prior to the corresponding Interest Payment Date,
the accrued interest and Liquidated Damages, if any, shall be payable to the
Holder of the redeemed Notes registered on the relevant Record Date; and
provided, further, that if a Redemption Date is a Legal Holiday, payment shall
be made on the next succeeding Business Day and no interest or Liquidated
Damages shall accrue for the period from such Redemption Date to such succeeding
Business Day.
Section 3.6. Deposit of Redemption Price.
On or prior to the Redemption Date, the Company shall deposit
with the Paying Agent (other than the Company or an Affiliate of the Company)
Cash sufficient pay the Redemption Price of, including accrued and unpaid
interest on, and Liquidated Damages, if any, with respect to, all Notes to be
redeemed on such Redemption Date (other than Notes or portions thereof called
for redemption on that date that have been delivered by the Company to the
Trustee for cancellation). The Paying Agent shall promptly return to the Company
any Cash so deposited which is not required for that purpose upon the written
request of the Company.
If the Company complies with the preceding paragraph and the
other provisions of this Article III and payment of the Notes called for
redemption is not prohibited under Article XII or otherwise, interest and
Liquidated Damages, if any, on the Notes to be redeemed will cease to accrue on
and after the applicable Redemption Date, whether or not such Notes are
presented for payment. Notwithstanding anything herein to the contrary, if any
Note surrendered for redemption in the manner provided in the Notes shall not be
so paid upon surrender for redemption because of the failure of the Company to
comply with the preceding paragraph, Liquidated Damages shall continue to accrue
and be paid from the Redemption Date if so required pursuant to Section 3 of the
Registration Rights Agreement and interest shall continue to accrue and be paid
from the Redemption Date until such payment is made on the unpaid principal,
and, to the extent lawful, on any interest not paid on such unpaid principal, in
each case at the rate and in the manner provided in Section 4.1 hereof and the
Note.
Section 3.7. Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in part, the
Company shall execute and the Trustee shall thereafter authenticate and make
available for delivery to the Holder, without service charge to the Holder, a
new Note or Notes equal in principal amount to the unredeemed portion of the
Note surrendered.
ARTICLE IV.
COVENANTS
Section 4.1. Payment of Notes.
The Company shall pay the principal of, interest on, and
Liquidated Damages with respect to, the Notes on the dates and in the manner
provided in the Notes and the Registration Rights Agreement, as applicable. An
installment of principal of, interest on, or Liquidated Damages with respect to,
the Notes shall be considered paid on the date it is due if the Trustee or
Paying Agent (other than the Company or an Affiliate of the Company) holds for
the benefit of the Holders, on or before 12:00 noon New York City time on that
date, Cash deposited and designated for and sufficient to pay the installment.
The Company shall pay interest on overdue principal and on
overdue installments of interest at the rate specified in the Notes compounded
semi-annually, to the extent lawful.
Section 4.2. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The
City of New York, an office or agency where Notes may be presented or
surrendered for payment, where Notes may be surrendered for registration of
transfer or exchange and for conversion and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 14.2.
The Company may also from time to time designate 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;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Company shall
give prior written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency. The
Company hereby initially designates the principal corporate trust office in New
York City of the Trustee as such office.
Section 4.3. Corporate Existence.
Subject to Article V, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence and the corporate or other existence of each of its Subsidiaries in
accordance with the respective organizational documents of each of them and the
rights (charter and statutory) and corporate franchises of the Company and each
of its Subsidiaries; provided, however, that the Company shall not be required
to preserve, with respect to itself, any right or franchise, and with respect to
any of its Subsidiaries, any such existence, right or franchise, if (a) the
Company shall, in good faith, reasonably determine that the preservation thereof
is no longer desirable in the conduct of the business of such entity and (b) the
loss thereof is not disadvantageous in any material respect to the Holders.
Section 4.4. Payment of Taxes and Other Claims.
Except with respect to items that are not material to the
Company and its Subsidiaries taken as a whole, the Company shall, and shall
cause each of its Subsidiaries to, pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all taxes, assessments
and governmental charges (including withholding taxes and any penalties,
interest and additions to taxes) levied or imposed upon the Company or any of
its Subsidiaries or any of their respective properties and assets and (ii) all
lawful claims, whether for labor, materials, supplies, services or anything
else, which have become due and payable and which by law have or may become a
Lien upon the property and assets of the Company or any of its Subsidiaries;
provided, however, that neither the Company nor any Subsidiary shall be required
to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings and for which disputed amounts adequate
reserves have been established in accordance with GAAP.
Section 4.5. Maintenance of Properties and Insurance.
The Company shall cause all material properties used or useful
to the conduct of its business and the business of each of its Subsidiaries to
be maintained and kept in good condition, repair and working order (reasonable
wear and tear excepted) and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in its
reasonable judgment may be necessary, so that the business carried on in
connection therewith may be properly conducted at all times; provided, however,
that nothing in this Section 4. 5 shall prevent the Company or any Subsidiary
from discontinuing the operation or maintenance of any of such properties, if
such discontinuance is (a) in the judgment of the Company, desirable in the
conduct of the business of such entity and (b) not disadvantageous in any
material respect to the Holders.
The Company shall provide, or cause to be provided, for itself
and each of its Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith opinion
of the Company, is adequate and appropriate for the conduct of the business of
the Company and such Subsidiaries in a prudent manner, with (except for
self-insurance) reputable insurers or with the government of the United States
of America or an agency or instrumentality thereof, in such amounts, with such
deductibles, and by such methods as shall be customary, in the reasonable, good
faith opinion of the Company, and adequate and appropriate for the conduct of
the business of the Company and such Subsidiaries in a prudent manner for
entities similarly situated in the industry, unless failure to provide such
insurance (together with all other such failures) would not have a material
adverse effect on the financial condition or results of operations of the
Company and its Subsidiaries taken as a whole.
Section 4.6. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee within 120 days
after the end of the Company's fiscal year an Officers' Certificate complying
with Section 314(a)(4) of the TIA and stating that a review of its activities
and the activities of its Subsidiaries during the preceding fiscal year has been
made under the supervision of the signing Officers with a view to determining
whether the Company has kept, observed, performed and fulfilled its obligations
under this Indenture and further stating, as to each such Officer signing such
certificate, whether or not the signer knows of any failure by the Company or
any Subsidiary of the Company to comply with any conditions or covenants in this
Indenture and, if such signer does know of such a failure to comply, the
certificate shall describe such failure with particularity. The Officers'
Certificate shall also notify the Trustee should the relevant fiscal year end on
any date other than the current fiscal year end date.
(b) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, promptly upon the Company becoming aware of
(and in any event within five days after the Company becomes aware of) any
Default, Event of Default or fact which would prohibit the making of any payment
to or by the Trustee in respect of the Notes, an Officers' Certificate
specifying such Default, Event of Default or fact and what action the Company is
taking or proposes to take with respect thereto. The Trustee shall not be deemed
to have knowledge of any Default, any Event of Default or any such fact unless
one of its Trust Officers receives notice thereof from the Company or any of the
Holders.
Section 4.7. Reports.
Whether or not the Company is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company shall
deliver to the Trustee, within 15 days after it is or would have been required
to file such with the SEC, annual and quarterly consolidated financial
statements substantially equivalent to financial statements that would have been
included in reports filed with the SEC if the Company were subject to the
requirements of Section 13 or 15(d) of the Exchange Act, including, with respect
to annual information only, a report thereon by the Company's certified
independent public accountants as such would be required in such reports to the
SEC and, in each case, together with a management's discussion and analysis of
financial condition and results of operations which would be so required.
Section 4.8. Limitation on Status as Investment Company.
Neither the Company nor any of its Subsidiaries shall become
an "investment company" (as that term is defined in the Investment Company Act
of 1940, as amended), or otherwise become subject to regulation under the
Investment Company Act.
Section 4.9. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law which would prohibit or forgive the Company from paying
all or any portion of the principal of, premium of, interest on, or Liquidated
Damages with respect to, 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 (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 4.10. Rule 144A Information Requirement.
If at any time there are Transfer Restricted Notes outstanding
and the Company shall cease to have a class of equity securities registered
under Section 12(b) of the Exchange Act or shall cease to be subject to Section
15(d) of the Exchange Act, the Company shall furnish, within a reasonable period
of time, to the Holders or beneficial holders of the Notes or the underlying
Common Stock and prospective purchasers of Notes or the underlying Common Stock
designated by the Holders of Transfer Restricted Notes, upon their written
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act until such time as the Shelf Registration Statement has
become effective under the Securities Act. The Company shall also furnish such
information during the pendency of any suspension of effectiveness of the Shelf
Registration Statement.
ARTICLE V.
SUCCESSOR CORPORATION
Section 5.1. Limitation on Merger, Sale or Consolidation.
(a) The Company shall not, directly or indirectly, consolidate
with or merge with or into, or sell, lease, convey or transfer all or
substantially all of its assets (on a consolidated basis), whether in a single
transaction or a series of related transactions or a series of related
transactions, to another Person or group of affiliated Persons (other than to
its wholly owned Subsidiaries), unless (i) either (a) in the case of a merger or
consolidation the Company is the surviving entity or (b) the resulting,
surviving or transferee entity is a corporation organized under the laws of the
United States, any state thereof or the District of Columbia and expressly
assumes by supplemental indenture all of the obligations of the Company in
connection with the Notes and the Indenture; (ii) no Default or Event of Default
shall exist or shall occur immediately before or after giving effect to such
transaction; and (iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and, if a supplemental indenture is required, such
supplemental indenture comply with the Indenture and that all conditions
precedent hereunder relating to such transactions have been satisfied.
(b) For purposes of clause (a) of this Section 5.1 and Section
13.6, the sale, lease, conveyance, assignment, transfer, or other disposition of
all or substantially all of the properties and assets of one or more
Subsidiaries of the Company, which properties and assets, if held by the Company
instead of such Subsidiaries, would constitute all or substantially all of the
properties and assets of the Company on a consolidated basis, shall be deemed to
be the transfer of all or substantially all of the properties and assets of the
Company.
Section 5.2. Successor Corporation Substituted.
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company in accordance with the foregoing,
the successor corporation formed by such consolidation or into which the Company
is merged or to which such transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under the Indenture
with the same effect as if such successor corporation had been named therein as
the Company, and the Company thereafter will be released from its obligations
under the Indenture and the Notes, except as to any obligations that arise from
or as a result of such transaction.
ARTICLE VI.
EVENTS OF DEFAULT AND REMEDIES
Section 6.1. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be caused voluntarily or involuntarily or effected, without limitation, by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) failure to pay any installment of interest on, or
Liquidated Damages with respect to, the Notes as and when the
same becomes due and payable and the continuance of such
failure for a period of 30 days, whether or not such payment
is prohibited by Article XII;
(2) failure to pay all or any part of the principal
of, or premium, if any on the Notes when and as the same
become due and payable at maturity, redemption, by
acceleration or otherwise, including, without limitation,
pursuant to any Repurchase Offer;
(3) the failure of the Company to perform any
conversion of Notes required under the Indenture and the
continuance of any such failure for 30 days;
(4) failure by the Company to observe or perform any
other covenant or agreement contained in the Notes or the
Indenture and, subject to the exception set forth in the last
paragraph of this Section 6.1, the continuance of such failure
for a period of 60 days after written notice is given to the
Company by the Trustee or to the Company and the Trustee by
Holders of at least 25% in aggregate principal amount of the
Notes outstanding;
(5) failure of the Company or any Significant
Subsidiary to make any payment at maturity, including any
applicable grace period, in respect of Indebtedness (other
than non-recourse obligations), in an amount in excess of
$15,000,000 and the continuance of such failure for 30 days
after written notice is 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 Notes outstanding;
(6) default by the Company or any Significant
Subsidiary with respect to any Indebtedness (other than
non-recourse obligations), which default results in the
acceleration of Indebtedness having a principal amount in
excess of $15,000,000 without such Indebtedness having been
discharged or such acceleration having been rescinded or
annulled for 30 days after written notice is 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
Notes outstanding;
(7) final unsatisfied judgments not covered by
insurance aggregating in excess of $20,000,000, at any one
time rendered against the Company or any of its Significant
Subsidiaries and not stayed, bonded or discharged within 60
days;
(8) a decree, judgment, or order by a court of
competent jurisdiction shall have been entered adjudging the
Company or any of its Significant Subsidiaries as bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization of the Company or any of its Significant
Subsidiaries under any bankruptcy or similar law, and such
decree, judgment or order shall have continued undischarged
and unstayed for a period of 60 days; or a decree, judgment or
order of a court of competent jurisdiction for the appointment
of a receiver, liquidator, trustee, or assignee in bankruptcy
or insolvency of the Company, any of its Significant
Subsidiaries, or of the property of any such Person, or for
the winding up or liquidation of the affairs of any such
Person, shall have been entered, and such decree, judgment, or
order shall have remained in force undischarged and unstayed
for a period of 60 days; or
(9) the Company or any of its Significant
Subsidiaries shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or
answer or consent seeking reorganization under any bankruptcy
or similar law or similar statute, or shall consent to the
filing of any such petition, or shall consent to the
appointment of a Custodian, receiver, liquidator, trustee, or
assignee in bankruptcy or insolvency of it or any of its
assets or property, or shall make a general assignment for the
benefit of creditors, or shall admit in writing its inability
to pay its debts generally as they become due, or shall,
within the meaning of any Bankruptcy Law, become insolvent,
fail generally to pay its debts as they become due, or take
any corporate action in furtherance of or to facilitate,
conditionally or otherwise, any of the foregoing.
Notwithstanding the 60-day period and notice requirement
contained in Section 6.1(4) above, with respect to a default in any obligation
of the Company under Article XI the 60-day period referred to in Section 6.1(4)
shall be deemed to have begun as of the date the Change of Control notice is
required to be sent in the event that the Company has not complied with the
provisions of Section 11.1 and the Trustee or Holders of at least 25% in
principal amount of the outstanding Notes thereafter give the Notice of Default
referred to in Section 6.1(4) to the Company and, if applicable, the Trustee;
provided, however, that if the breach or default is a result of a default in the
payment when due of the Repurchase Price on the Repurchase Date, such Event of
Default shall be deemed, for purposes of this Section 6.1, to arise no later
than on the final Repurchase Date.
Section 6.2. Acceleration of Maturity, Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 6.1(8) or (9) relating to the Company) occurs and is
continuing, then in every such case, 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% in aggregate principal amount of then outstanding Notes, by a
notice in writing to the Company (and to the Trustee if given by Holders) (an
"Acceleration Notice"), may declare all of the principal of the Notes (or the
Repurchase Price if the Event of Default includes failure to pay the Repurchase
Price, determined as set forth below), including in each case premium, if any,
accrued interest and Liquidated Damages on or with respect thereto, to be due
and payable immediately. If an Event of Default specified in Section 6.1(8) or
(9) relating to the Company occurs, all principal, premium, if any, accrued
interest and Liquidated Damages on or with respect thereto will be immediately
due and payable on all outstanding Notes without any declaration or other act on
the part of Trustee or the Holders.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article VI, and subject
to Section 12.2(b), the Holders of no less than a majority in aggregate
principal amount of then outstanding Notes, by written notice to the Company and
the Trustee, may rescind, on behalf of all Holders, any such declaration of
acceleration if:
(1) the Company has paid or deposited with the Trustee Cash
sufficient to pay:
(A) all overdue interest on, and overdue Liquidated
Damages with respect to, all Notes,
(B) the principal of (and premium, if any, applicable
to) any Notes which would then be due otherwise than by such
declaration of acceleration, and interest thereon at the rate
borne by the Notes,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest and Liquidated Damages
at the rate borne by the Notes,
(D) all sums paid or advanced by the Trustee
hereunder and the compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and
(2) all Events of Default, other than the non-payment of the
principal of, premium, if any, interest on and Liquidated Damages with
respect to Notes that have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 6.12,
including, if applicable, any Event of Default relating to the
covenants contained in Section 11.1.
Notwithstanding the previous sentence of this Section 6.2, no waiver shall be
effective against any Holder for any Event of Default or event which with notice
or lapse of time or both would be an Event of Default with respect to any
covenant or provision which cannot be modified or amended without the consent of
the Holder of each outstanding Note affected thereby, unless all such affected
Holders agree, in writing, to waive such Event of Default or other event. No
such waiver shall cure or waive any subsequent Default or Event of Default or
impair any right consequent thereon.
Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if an Event of Default in payment
of principal, premium, interest or Liquidated Damages specified in clause (1) or
(2) of Section 6.1 occurs and is continuing, the Company shall, upon demand of
the Trustee, pay to it, for the benefit of the Holders of such Notes, the whole
amount then due and payable on such Notes for principal, premium (if any),
interest, Liquidated Damages and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal (and premium, if
any), Liquidated Damages and on any overdue interest, at the rate borne by the
Notes, and, in addition thereto, such further amount as shall be sufficient to
cover the costs, fees and expenses of collection, including compensation to, and
expenses, disbursements and advances of, the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust in favor
of the Holders, may at the expense of the Company institute a judicial
proceeding for the collection of the sums so due and unpaid, may at the expense
of the Company prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Notes,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Notes or the property of the Company or of such other obligor or their
creditors, the Trustee (which term as used in this Section shall include any
predecessor 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 on the Company
for the payment of overdue principal, interest or Liquidated Damages) shall be
entitled and empowered, by intervention in such proceeding or otherwise, to take
any and all actions under the TIA, including
(1) to file and prove a claim for the whole amount of
principal (and premium, if any), interest and Liquidated Damages owing
and unpaid in respect of the Notes and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim under Section 7.7 for the
compensation, fees, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(2) To collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same in
accordance with Section 6.6;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the compensation, expenses, fees,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7. To the extent that the payment of
such compensation, expenses, fees, disbursements and advances of Trustee, its
agents and counsel and any other amounts due to the Trustee under Section 7.7
hereof out of the estate in any such judicial proceeding shall be denied for any
reason, payment of the same shall be secured by a perfected first priority
security interest in and lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise, and any such
security interest and lien in favor of any predecessor Trustee shall be senior
to the security interest and lien in favor of the current Trustee.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment, or composition affecting
the Notes or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 6.5. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the
Notes may be prosecuted and enforced by the Trustee without the possession of
any of the Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust in favor of the Holders, and any recovery of
judgment shall, after provision for the payment of compensation to, and
expenses, fees, disbursements and advances of, the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the Notes in respect of
which such judgment has been recovered.
Section 6.6. Priorities.
Any money collected by the Trustee pursuant to this Article VI
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal,
premium (if any), interest or Liquidated Damages, upon presentation of the Notes
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the Trustee (including any predecessor Trustee) in
payment of all amounts due pursuant to Section 7.7;
SECOND: To the holders of Senior Indebtedness of the Company
to the extent provided in Article XII;
THIRD: To the Holders in payment of the amounts then due and
unpaid for principal of, premium (if any), interest on and Liquidated
Damages with respect to, the Notes in respect or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Notes for principal, premium (if any), interest and Liquidated Damages,
respectively; and
FOURTH: To the Company or whomsoever may be lawfully entitled
thereto, the remainder, if any.
Section 6.7. Limitation on Suits.
No Holder of any Note shall have any right to order or direct
the Trustee to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(A) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(B) the Holders of not less than 25% in principal amount of
then outstanding Notes shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(C) such Holder or Holders have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities to be incurred or reasonably probable to be incurred in
compliance with such request;
(D) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(E) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of then outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
Section 6.8. Unconditional Right of Holders to Receive Principal, Premium,
Interest and Liquidated Damages.
Notwithstanding any other provision of this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of, and premium (if any), interest on and
Liquidated Damages with respect to, such Note when due (including, in the case
of redemption, the Redemption Price on the applicable Redemption Date, and in
the case of the Repurchase Price, on the applicable Repurchase Date), to convert
such Note in accordance with Article XIII, and to institute suit for the
enforcement of any such payment and right to convert after such respective
dates, and such rights shall not be impaired without the consent of such Holder.
Section 6.9. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes in Section 2.7, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.10. Delay or Omission Not Waiver.
No delay or omission by the Trustee or by any Holder of any
Note to exercise any right or remedy arising upon any Event of Default shall
impair the exercise of any such right or remedy or constitute a waiver of any
such Event of Default. Every right and remedy given by this Article VI or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 6.11. Control by Holders.
The Holder or Holders of no less than a majority in aggregate
principal amount of then outstanding Notes 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 upon the Trustee,
provided, that
(A) such direction shall be made in writing to the Trustee and
shall not be in conflict with any rule of law or with this Indenture,
(B) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders not taking part
in such written direction, and
(C) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such written direction.
Section 6.12. Waiver of Past Default.
Holder or Holders of not less than a majority in aggregate
principal amount of then outstanding Notes may, on behalf of all Holders, prior
to the declaration of acceleration of the maturity of the Notes, waive any past
default hereunder and its consequences, except a default
(A) in the payment of the principal of, premium, if
any, interest on, or Liquidated Damages with respect to, any
Note not yet cured as specified in clauses (1) and (2) of
Section 6.1, or
(B) in respect of a covenant or provision hereof
which, under Article IX, cannot be modified or amended without
the consent of the Holder of each outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair the exercise of any right arising
therefrom.
Section 6.13. Undertaking for 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, suffered or omitted to be taken 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;
but the provisions of this Section 6.13 shall not apply to any suit instituted
by the Company, to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in
aggregate principal amount of then outstanding Notes, or to any suit instituted
by any Holder for enforcement of the payment of principal of, premium (if any),
interest on or Liquidated Damages with respect to, any Note on or after the
respective Stated Maturity of such Note (including, in the case of redemption,
on or after the Redemption Date).
Section 6.14. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, then and in every case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
ARTICLE VII.
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
Section 7.1. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of a Default or an Event of Default:
(1) The Trustee need perform only those duties as are specifically set
forth in this Indenture and no others, and no covenants or obligations
shall be implied in or read into this Indenture which are adverse to the
Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions whether in
their original or facsimile form furnished to the Trustee and conforming to
the requirements of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they substantially
conform to the requirements of this Indenture. However, in the case of any
such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture but not to verify the
contents thereof.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.1.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a written direction
received by it pursuant to Section 6.11.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or at the request, order or direction of the Holders or in
the exercise of any of its rights or powers if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c), (d) and (f) of this Section 7.1.
(f) The Trustee shall not be liable for interest on any assets received
by it except as the Trustee may agree in writing with the Company. Assets held
in trust by the Trustee need not be segregated from other assets except to the
extent required by law.
Section 7.2. Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may conclusively rely on any document whether in its
original or facsimile form believed by it to be genuine and to have been signed
or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and if the Trustee shall determine to make such further inquiry or investigation
it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel of its selection and may require an Officers' Certificate or an
Opinion of Counsel, which shall conform to Sections 14.4 and 14.5. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such certificate or advice of counsel.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any attorney or agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its discretion,
rights or powers conferred upon it by this Indenture.
(e) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, notice, request, direction, consent, order, bond, debenture, or other
paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
(g) Unless otherwise specifically provided for in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(h) The Trustee shall have no duty to inquire as to the performance of
the Company's covenants in Article IV hereof. In addition, the Trustee shall not
be deemed to have knowledge of any Default or Event of Default except (i) any
Event of Default occurring pursuant to Sections 6.1(1), 6.1(2) or 5. 1, or (ii)
any Default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.
(i) No permissive right of the Trustee to act hereunder shall be
construed as a duty.
(j) If in the administration of this Indenture the Trustee deems it
desirable that a matter be proved or established prior to taking, suffering or
omitting to take any action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate, an Opinion of Counsel, or both.
(k) The Trustee shall not be deemed to have notice or knowledge
(including actual knowledge) of any matter unless a Trust Officer has actual
knowledge thereof or unless written notice thereof is received by the Trustee at
the office specified in Section 14.2 and such notice references the Notes
generally, the Company or this Indenture.
Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company, any of
its Subsidiaries, or their respective Affiliates with the same rights it would
have if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
Section 7.4. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture, the Registration Rights Agreement, the Offering
Memorandum or the Notes and it shall not be accountable for the Company's use of
the proceeds from the Notes, and it shall not be responsible for any statement
in the Notes, other than the Trustee's certificate of authentication, or the use
or application of any funds received by a Paying Agent other than the Trustee.
Section 7.5. Notice of Default.
If a Default or an Event of Default occurs and is continuing
and if it is actually known to the Trustee, the Trustee shall mail to each
Noteholder notice of the uncured Default or Event of Default within 90 days
after the later to occur of (i) the occurrence of such Default or Event of
Default or (ii) the date the Trustee becomes aware of such Default or Event of
Default. Except in the case of a Default or an Event of Default in payment of
principal (or premium, if any) of, interest on or Liquidated Damages with
respect to, any Note (including the payment of the Repurchase Price on the
Repurchase Date and the payment of the Redemption Price on the Redemption Date),
the Trustee may withhold the notice if and so long as a committee of Trust
Officers in good faith determines that withholding the notice is in the interest
of the Noteholders.
Section 7.6. Reports by Trustee to Holders.
Within 90 days after each April 15 beginning with the April 15
following the date of this Indenture, the Trustee shall, if required by law,
mail to each Noteholder a brief report dated as of such April 15 that complies
with TIA ss. 313(a). The Trustee also shall comply with TIA xx.xx. 313(b) and
313(c).
The Company shall promptly notify the Trustee in writing if
the Notes become listed on any stock exchange or automatic quotation system or
become delisted therefrom.
A copy of each report at the time of its mailing to
Noteholders shall be mailed to the Company and, if required, filed with the SEC
and each stock exchange, if any, on which the Notes are listed.
Section 7.7. Compensation and Indemnity.
The Company agrees to pay to the Trustee from time to time
such compensation for its services as the parties shall agree in writing from
time to time and, in the absence of such agreement, reasonable compensation for
its acceptance of this Indenture and services hereunder. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon request for all such
disbursements, expenses, fees and advances incurred or made by it. Such expenses
shall include the reasonable compensation, disbursements, fees and expenses of
the Trustee's agents, accountants, experts and counsel.
The Company agrees to indemnify each of the Trustee and any
predecessor Trustee (in its capacity as Trustee) and each of its officers,
directors, attorneys-in-fact and agents for, and hold them harmless against, any
and all claims, demands, expenses (including but not limited to reasonable
compensation, fees, disbursements and expenses of the Trustee's agents and
counsel and taxes (other than taxes based on the income of the Trustee)), loss,
damages or liability incurred by it without negligence, bad faith or willful
misconduct on its part, arising out of, related to, or in connection with the
acceptance or administration of this trust and its rights or duties hereunder
including the reasonable costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder. The Trustee shall notify the Company promptly of any
claim asserted against the Trustee for which it may seek indemnity. The Company
shall defend the claim and the Trustee shall provide reasonable cooperation at
the Company's expense in the defense. The Trustee may have separate counsel of
its selection and the Company shall pay the reasonable fees and expenses of such
counsel; provided, that the Company will not be required to pay such fees and
expenses if it assumes the Trustee's defense and there is no conflict of
interest between the Company and the Trustee in connection with such defense.
The Company need not pay for any settlement made without its written consent.
The Company need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by the Trustee through its negligence, bad
faith or willful misconduct.
To secure the Company's payment obligations in this Section
7.7, the Trustee and each predecessor Trustee shall have a perfected lien prior
to the Notes on all assets held or collected by the Trustee, in its capacity as
Trustee, except assets held in trust for the benefit of the Holders to pay
principal and premium, if any, of or interest or Liquidated Damages on
particular Notes. Any lien in favor of a predecessor Trustee shall be senior to
any lien in favor of the current Trustee.
When the Trustee or any predecessor Trustee incurs expenses or
fees or renders services after an Event of Default specified in Section 6.1(8)
or (9) occurs, the expenses and the compensation for the services are intended
to constitute expenses of administration under any Bankruptcy Law.
The Company's obligations under this Section 7.7 and any lien
arising hereunder shall survive indefinitely, including upon the resignation or
removal of the Trustee, the discharge of the Company's obligations pursuant to
Article VIII of this Indenture and any rejection or termination of this
Indenture under any Bankruptcy Law.
Section 7.8. Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing.
The Holder or Holders of a majority in principal amount of then outstanding
Notes may remove the Trustee by so notifying the Company and the Trustee in
writing. The Company, by Board Resolution, may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver, Custodian, or other public officer
takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of this Section 7.8.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holder or Holders of a majority in principal amount of then outstanding Notes
may, with the Company's consent, appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately upon
delivery of such notice and provided that all sums owing to the retiring Trustee
provided for in Section 7.7 have been paid, the retiring Trustee shall transfer
all property held by it as trustee to the successor Trustee, subject to the lien
provided in Section 7.7, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture. A successor Trustee shall
mail notice of its succession to each Holder.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holder or Holders of at least 10% in principal amount of then
outstanding Notes may at the expense of the Company petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any bona
fide Holder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 shall continue
indefinitely for the benefit of the retiring Trustee.
Section 7.9. Successor Trustee by Xxxxxx, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of TIA
ss. 310(a)(1), (2) and (5). The Trustee and its direct parent 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
$100,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA ss. 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated.
Section 7.12. Other Capacities.
All references in this Indenture to the Trustee shall be
deemed to refer to the Trustee in its capacity as Trustee and in its capacities
as any Agent, to the extent acting in such capacities, and every provision of
this Indenture relating to the conduct or affecting the liability or offering
protection, immunity or indemnity to the Trustee shall be deemed to apply with
the same force and effect to the Trustee acting in its capacity as any Agent.
ARTICLE VIII.
SATISFACTION AND DISCHARGE
Section 8.1. Satisfaction and Discharge of Indenture.
The Company may terminate its obligations under this Indenture
(subject to the provisions of this Article VIII and Section 7.7) when it shall
have delivered to the Trustee for cancellation all Notes theretofore
authenticated (other than any Notes which shall have been cancelled, lost or
stolen and which shall have been replaced or paid as provided in Article II
hereof) and the following conditions shall be satisfied:
(1) The Company has paid all sums payable under the Indenture;
and
(2) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent have been complied with as contemplated by this Section 8.
1.
Section 8.2. Repayment to the Company.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, for the payment of the principal of, premium, if any,
interest on or Liquidated Damages with respect to any Note and remaining
unclaimed for two years after such principal, premium, if any, interest or
Liquidated Damages has become due and payable shall, subject to applicable law,
be paid to the Company on its written request; and the Holder of such Note shall
thereafter look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money shall
thereupon cease.
ARTICLE IX.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder, the Company, when
authorized by Board Resolutions, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to cure any ambiguity, defect, or inconsistency,
or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, provided,
that such action pursuant to this clause (1) does not
adversely affect the interests of any Holder in any respect;
(2) to create additional covenants of the Company for
the benefit of the Holders, or to surrender any right or power
herein conferred upon the Company or to make any other change
that does not adversely affect the rights of any Holder,
provided, that the Company has delivered to the Trustee an
Opinion of Counsel stating that such change pursuant to this
clause (2) does not adversely affect the rights of any Holder;
(3) to provide for collateral for or guarantors of
the Notes;
(4) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
obligations of the Company herein and in the Notes in
accordance with Article V; or
(5) to comply with the TIA.
Section 9.2. Amendments, Supplemental Indentures and Waivers with Consent of
Holders.
Subject to the last sentence of this paragraph, with the
consent of the Holders of not less than a majority in aggregate principal amount
of then outstanding Notes, by written act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by Board Resolutions, and
the Trustee may amend or supplement this Indenture or the Notes or 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 the Notes or of modifying in any manner the rights of the
Holders under this Indenture or the Notes. Subject to the last sentence of this
paragraph, the Holder or Holders of not less than a majority in aggregate
principal amount of then outstanding Notes may, in writing, waive compliance by
the Company with any provision of this Indenture or the Notes. Notwithstanding
any of the above, however, no such amendment, supplemental indenture or waiver
shall, without the consent of the Holder of each outstanding Note affected
thereby:
(1) change the Stated Maturity of any Note or reduce
the principal amount thereof or the rate (or extend the time
for payment) of interest thereon or any premium payable upon
the redemption thereof, or change the place of payment where,
or the coin or currency in which, any Note or any premium or
the interest thereon is payable, or impair the right to
institute suit for the conversion of any Note or the
enforcement of any such payment on or after the due date
thereof (including, in the case of redemption, on or after the
Redemption Date), or reduce the Repurchase Price, or alter the
Repurchase Offer (other than set forth herein) or redemption
provisions in a manner adverse to the Holders;
(2) reduce the percentage in principal amount of the
outstanding Notes, the consent of whose Holders is required
for any such amendment, supplemental indenture or waiver
provided for in the Indenture;
(3) adversely affect the right of such Holder to
convert Notes.
It shall not be necessary for the consent of the Holders under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.2 becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture or
waiver.
After an amendment, supplement or waiver under this Section
9.2 or Section 9.4 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under
this Article IX, the Company may, but shall not be obligated to, offer to any
Holder who consents to such amendment, supplement or waiver, or (at the option
of the Company) to all Holders, consideration for consent to such amendment,
supplement or waiver.
Section 9.3. Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the
Notes shall comply with the TIA as then in effect.
Section 9.4. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as to
his Note or portion of his Note by written notice to the Company, the Trustee or
the Person designated by the Company as the Person to whom consents should be
sent if such revocation is received by the Company or such Person before the
date on which the Trustee receives an Officers' Certificate certifying that the
Holders of the requisite principal amount of Notes have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be the date so fixed by
the Company notwithstanding the provisions of the TIA. If a record date is
fixed, then notwithstanding the last sentence of the immediately preceding
paragraph, those Persons who were Holders at such record date, and only those
Persons (or their duly designated proxies), shall be entitled to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Noteholder, unless it makes a change described in any of
clauses (1) through (4) of Section 9.2, in which case, the amendment, supplement
or waiver shall bind only each Holder of a Note who has consented to it and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note; provided, that any such waiver shall not
impair or affect the right of any Holder to receive payment of principal and
premium of and interest on and Liquidated Damages with respect to a Note, on or
after the respective dates set for such amounts to become due and payable as
then expressed in such Note, or to bring suit for the enforcement of any such
payment on or after such respective dates.
Section 9.5. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a
Note, the Trustee may require the Holder of the Note to deliver it to the
Trustee or require the Holder to put an appropriate notation on the Note. The
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Any failure to
make the appropriate notation or to issue a new Note shall not affect the
validity of such amendment, supplement or waiver.
Section 9.6. Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article IX; provided, that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article IX is
authorized or permitted by this Indenture.
ARTICLE X.
MEETINGS OF NOTEHOLDERS
Section 10.1. Purposes for Which Meetings May Be Called.
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:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to waive or to consent to the waiving of any
Default or Event of 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 VI;
(b) to remove the Trustee or appoint a successor Trustee pursuant to
the provisions of Article VII;
(c) to consent to an amendment, supplement or waiver pursuant to
provisions of Section 9.2; or
(d) to take any other action (i) authorized to be taken by or on behalf
of the Holder or Holders of any specified aggregate principal amount of the
Notes under any other provision of this Indenture, or authorized or permitted by
law or (ii) which the Trustee deems necessary or appropriate in connection with
the administration of this Indenture.
Section 10.2. Manner of Calling Meetings.
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 in the City of New York, New York or elsewhere as the Trustee shall
determine. Notice of every meeting of Noteholders, setting forth the time and
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be mailed at the Company's expense by the Trustee,
first-class postage prepaid, to the Company and to the Holders at their last
addresses as they shall appear on the registration books of the Registrar, not
less than 10 nor more than 60 days prior to the date fixed for a 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. Calling of Meetings by the Company or Holders.
In case at any time the Company or the Holders of not less
than 10% in aggregate principal amount of the Notes then outstanding shall have
requested the Trustee to call a meeting of Noteholders to take any action
specified in Section 10.1, 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 notice of such meeting within 20 days after receipt of such written
request, then the Company or the Holders of Notes in the amount above specified
may determine the time and place in the City of New York, New York or elsewhere
for such meeting and may call such meeting for the purpose of taking such
action, by mailing or causing to be mailed notice thereof as provided in Section
10.2, or by causing notice thereof to be published at least once in each of two
successive calendar weeks (on any Business Day during such week) in a newspaper
or newspapers printed in the English language, customarily published at least
five days a week of a general circulation in the City of New York, State of New
York, the first such publication to be not less than 10 nor more than 60 days
prior to the date fixed for the meeting.
Section 10.4. Who May Attend and Vote at Meetings.
To be entitled to vote at any meeting of Noteholders, a Person
shall (a) be a registered Holder of one or more Notes, or (b) be a Person
appointed by an instrument in writing as proxy for the registered Holder or
Holders of 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 May Be Made by Trustee; Conduct of the Meeting: Voting
Rights: Adjournment.
Notwithstanding any other provision of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
action by or 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, and 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 appropriate. Such
regulations may fix a record date and time for determining the Holders of record
of Notes entitled to vote at such meeting, in which case those and only those
Persons who are Holders of Notes at the record date and time so fixed, or their
proxies, shall be entitled to vote at such meeting whether or not they shall be
such Holders at the time of the meeting.
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 any meeting each Noteholder or proxy 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 Notes challenged as not outstanding and ruled by the chairman of
the meeting to be not then 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 proxy to vote on behalf of
other Noteholders. Any meeting of Noteholders duly called pursuant to the
provisions of Section 10.2 or Section 10.3 may be adjourned from time to time by
vote of the Holder or Holders of a majority in aggregate principal amount of the
Notes represented at the meeting and entitled to vote, and the meeting may be
held as so adjourned without further notice.
Section 10.6. Voting at the Meeting and Record to Be Kept.
The vote upon any resolution submitted to any meeting of
Noteholders shall be by written ballots 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 voted by the ballot. 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 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 such 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 such notice was mailed as provided in Section 10.2 or published
as provided in Section 10.3. The record shall be signed and verified by the
affidavits of the permanent chairman and the 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. Exercise of Rights of Trustee or Holders May Not Be Hindered or
Delayed by Call of Meeting.
Nothing contained in this Article X 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.
RIGHT TO REQUIRE REPURCHASE UPON A CHANGE OF CONTROL
Section 11.1. Repurchase of Notes at Option of the Holder Upon a Change of
Control.
(a) Subject to Section 11.2, in the event that a Change of Control
occurs, the Company shall offer, subject to the terms and conditions of this
Indenture, to purchase all or any part of each Holder's Notes (provided, that
the principal amount of such Notes must be $1,000 or an integral multiple
thereof) on the date (the "Repurchase Date") that is no later than 45 Business
Days (except as hereinafter provided) after the occurrence of such Change of
Control, at a cash price (the "Repurchase Price") equal to 100% of the principal
amount thereof, together with accrued and unpaid interest and Liquidated
Damages, if any, to (but excluding) the Repurchase Date.
(b) In the event that, pursuant to this Section 11.1, the Company shall
be required to commence an offer to purchase Notes (a "Repurchase Offer"), the
Company shall follow the procedures set forth in this Section 11.1 as follows:
(1) the Repurchase Offer shall commence within 25 Business
Days following a Change of Control;
(2) the Repurchase Offer shall remain open for 20 Business
Days following its commencement, except to the extent that a longer period is
required by applicable law (the "Repurchase Offer Period");
(3) upon the expiration of a Repurchase Offer Period, the
Company shall purchase all Notes tendered in response to the Repurchase Offer;
(4) if the Repurchase Date is on or after an interest payment
record date and on or before the related Interest Payment Date, any accrued
interest and Liquidated Damages will be paid to the Person in whose name a Note
is registered at the close of business on such record date, and no additional
interest or Liquidated Damages will be payable to Noteholders who tender Notes
pursuant to the Repurchase Offer;
(5) the Company shall provide the Trustee with written notice
of the Repurchase Offer at least 5 Business Days before the commencement of any
Repurchase Offer (or such shorter period that is satisfactory to the Trustee);
and
(6) on or before the commencement of any Repurchase Offer, the
Company or the Trustee (upon the request and at the expense of the Company)
shall send, by first-class mail, a notice to each of the Noteholders, which (to
the extent consistent with this Indenture) shall govern the terms of the
Repurchase Offer and shall state:
(i) that the Repurchase Offer is being made pursuant to such
notice and this Section 11.1 and that all Notes, or portions thereof,
tendered will be accepted for payment;
(ii) the Repurchase Price (including the amount of accrued and
unpaid interest and Liquidated Damages, if any), the Repurchase Date
and the Repurchase Put Date;
(iii) that any Note, or portion thereof, not tendered and
accepted for payment will continue to accrue interest and Liquidated
Damages, if any;
(iv) that, unless the Company defaults in depositing Cash with
the Paying Agent in accordance with the last paragraph of this clause
(b) or such payment is prevented pursuant to Article XII, any Note, or
portion thereof, accepted for payment pursuant to the Repurchase Offer
shall cease to accrue interest and Liquidated Damages after the
Repurchase Date;
(v) that Holders electing to have a Note, or portion thereof,
purchased pursuant to a Repurchase Offer will be required to surrender
the Note, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Note completed, to the Paying Agent (which may
not for purposes of this Section 11.1, notwithstanding anything in this
Indenture to the contrary, be the Company or any Affiliate of the
Company) at the address specified in the notice prior to the close of
business on the earlier of (a) the third Business Day prior to the
Repurchase Date and (b) the third Business Day following the expiration
of the Repurchase Offer (such earlier date being the "Repurchase Put
Date");
(vi) that Holders will be entitled to withdraw their election,
in whole or in part, if the Paying Agent (which may not for purposes of
this Section 11.1, notwithstanding anything in this Indenture to the
contrary, be the Company or any Affiliate of the Company) receives, up
to the close of business on the Repurchase Put Date, a telegram,
facsimile transmission or letter setting forth the name of the Holder,
the Certificate number or CUSIP number of the relevant Global Note, the
principal amount of the Notes the Holder is withdrawing and a statement
that such Xxxxxx is withdrawing his election to have such principal
amount of Notes purchased; and
(vii) a brief description of the events resulting in such
Change of Control.
Any such Repurchase Offer shall comply with all applicable
provisions of federal and state laws, including those regulating tender offers,
if applicable, and any provisions of this Indenture which conflict with such
laws shall be deemed to be superseded by the provisions of such laws.
On or before the Repurchase Date, the Company shall (i) accept
for payment Notes or portions thereof properly tendered pursuant to the
Repurchase Offer, (ii) deposit with the Paying Agent Cash sufficient to pay the
Repurchase Price (together with accrued and unpaid interest and Liquidated
Damages, if any) of all Notes or portions thereof so tendered and (iii) deliver
to the Trustee the Notes so accepted together with an Officers' Certificate
listing the Notes or portions thereof being purchased by the Company. The Paying
Agent will promptly mail to Holders of Notes so accepted payment in an amount
equal to the Repurchase Price (together with accrued and unpaid interest and
Liquidated Damages, if any), and the Trustee shall promptly authenticate make
available for delivery to such Holders a new Note or Notes equal in principal
amount to any unpurchased portion of the Notes surrendered. Any Notes not so
accepted shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the Repurchase Offer
on or as soon as practicable after the Repurchase Date.
Section 11.2. Rescission of Change of Control Determination.
At any time prior to the close of business on the Business Day
immediately preceding the Repurchase Date, the Holders of more than 66-2/3% in
aggregate principal amount of the then outstanding Notes, by written act of said
Holders delivered to the Company and the Trustee, may determine that the event
giving rise to the Change of Control shall not be treated as a Change of Control
for purposes of Section 11.1, in which event:
(1) the provisions of Section 11.1(a) shall not apply;
(2) if a Repurchase Offer has been made by the Company
pursuant to Section 11.1 (b), such Repurchase Offer shall be deemed revoked; and
(3) if any Notes have been tendered in response to the revoked
Repurchase Offer, such tenders shall be deemed rescinded and the Notes promptly
returned to the Holders thereof.
Following a determination by the Holders pursuant to this
Section 11.2, the Company shall mail to all Holders a notice briefly describing
such determination. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such determination. An effective determination under this Section 11.2 shall
be binding on all holders.
ARTICLE XII.
SUBORDINATION
Section 12.1. Notes Subordinated to Senior Indebtedness.
The Company and each Holder, by its acceptance of Notes, agree
that (a) the payment of the principal of and interest on the Notes and (b) any
other payment in respect of the Notes, including on account of the acquisition
or redemption of the Notes by the Company and any premium and Liquidated Damages
(including, without limitation, pursuant to Article XI (but specifically
excluding payments to the Trustee for its own benefit), and including the
payment of cash, property or securities (other than Junior Securities) upon
conversion of a Note, is subordinated, to the extent and in the manner provided
in this Article XII, to the prior payment in full of all Senior Indebtedness of
the Company, whether outstanding at the date of this Indenture or thereafter
created, incurred, assumed or guaranteed, and that these subordination
provisions are for the benefit of the holders of Senior Indebtedness.
This Article XII shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or continue to
hold, Senior Indebtedness, and such provisions are made for the benefit of the
holders of Senior Indebtedness, and such holders are made obligees hereunder and
any one or more of them may enforce such provisions.
Section 12.2. No Payment on Notes in Certain Circumstances.
(a) No payment may be made by the Company, directly or through
any Subsidiary, on account of the principal of, premium, if any, interest on, or
Liquidated Damages with respect to, the Notes, or to acquire any of the Notes
(including repurchases of Notes at the option of the Holder) for cash or
property (other than Junior Securities), or on account of the redemption
provisions of the Notes, (i) upon the maturity of any Senior Indebtedness by
lapse of time, acceleration (unless waived) or otherwise, unless and until all
principal of, premium, if any, and interest on and other amounts payable in
respect of Senior Indebtedness are first paid in full (or such payment is duly
provided for), or (ii) in the event of default in the payment of any principal
of, premium, if any, or interest on any Senior Indebtedness when it becomes due
and payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise (collectively, a "Payment Default"), unless and until
such Payment Default has been cured or waived or otherwise has ceased to exist.
(b) Upon (i) the happening of an event of default (other than
a Payment Default) that permits, or would permit, with (w) the passage of time,
(x) the giving of notice, (y) the making of any payment of the Notes then
required to be made, or (z) any combination thereof (collectively, a
"Non-Payment Default"), the holders of Senior Indebtedness under the Credit
Facility or the holders of other Senior Indebtedness having a principal amount
then outstanding in excess of $10,000,000 (or with respect to which Senior
Indebtedness the holders are obligated to lend the Company in excess of
$10,000,000 principal amount) or their representative immediately to accelerate
the maturity of such Indebtedness and (ii) written notice of such Non-Payment
Default being given to the Company and the Trustee by the holders of Senior
Indebtedness under the Credit Facility or by the holders of such other Senior
Indebtedness or their representative (a "Payment Notice"), then, unless and
until such Non-Payment Default has been cured or waived or otherwise has ceased
to exist, no payment (by set-off or otherwise) may be made by or on behalf of
the Company, directly or through any Subsidiary, on account of the principal of,
premium, if any, interest on, or Liquidated Damages with respect to, the Notes,
or to acquire or repurchase any of the Notes for cash or property, or on account
of the redemption provisions of the Notes, in any such case other than payments
made with Junior Securities. Notwithstanding the foregoing, unless (i) the
Senior Indebtedness in respect of which such Non-Payment Default exists has been
declared due and payable in its entirety within 179 days after the Payment
Notice is delivered as set forth above (the "Payment Blockage Period"), and (ii)
such declaration has not been rescinded or waived, at the end of the Payment
Blockage Period, the Company shall be required to pay to the Holders of the
Notes all regularly scheduled payments on the Notes that were not paid during
the Payment Blockage Period due to the foregoing prohibitions (and upon the
making of such payments any acceleration of the Notes made during the Payment
Blockage Period shall be of no further force or effect) and to resume all other
payments as and when due on the Notes. Not more than one Payment Notice may be
given in any consecutive 365-day period, irrespective of the number of defaults
with respect to Senior Indebtedness during such period. In no event, however,
may the total number of days during which any Payment Blockage Period is or
Payment Blockage Periods are in effect exceed 179 days in the aggregate during
any consecutive 365 day period.
(c) In furtherance of the provisions of Section 12.1, in the
event that, notwithstanding the foregoing provisions of this Section 12.2, any
payment or distribution of assets of the Company or any Subsidiary (other than
Junior Securities) shall be received by the Trustee for the benefit of the
Holders or the Holders or any Paying Agent for the benefit of the Holders at a
time when such payment or distribution is prohibited by the provisions of this
Section 12.2, then such payment or distribution (subject to the provisions of
Article VII and Sections 12.6, 12.7 and 12.12) shall be received and held in
trust by the Trustee or such Holder or Paying Agent for the benefit of the
holders of Senior Indebtedness, and shall be paid or delivered by the Trustee or
such Holders or such Paying Agent, as the case may be, to the holders of Senior
Indebtedness remaining unpaid or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, for application to the payment of all
Senior Indebtedness in full after giving effect to any concurrent payment and
distribution to the holders of such Senior Indebtedness.
Section 12.3. Notes Subordinated to Prior Payment of All Senior Indebtedness on
Dissolution Liquidation or Reorganization.
Upon any distribution of assets of the Company upon any
dissolution, winding up, total or partial liquidation or reorganization of the
Company, whether voluntary or involuntary, in bankruptcy, insolvency,
receivership or a similar proceeding or upon assignment for the benefit of
creditors or any marshaling of assets or liabilities:
(a) the holders of all Senior Indebtedness shall first be entitled to
receive payment in full (or have such payment duly provided for) before the
Holders of the Notes are entitled to receive any payment on account of the
principal of, premium, if any, interest on, and Liquidated Damages with respect
to, the Notes (other than Junior Securities);
(b) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (other than Junior
Securities) to which the Holders of the Notes or the Trustee on behalf of the
Holders would be entitled (by setoff or otherwise), except for the provisions of
this Article XII, shall be paid by the liquidating trustee or agent or other
Person making such a payment or distribution directly to the holders of Senior
Indebtedness or their representative to the extent necessary to make payment in
full of all such Senior Indebtedness remaining unpaid, after giving effect to
any concurrent payment or distribution, or provision therefor, to the holders of
such Senior Indebtedness (but this Section 12.3(b) shall not apply to payments
or distributions to the Trustee for its own benefit); and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company or any Subsidiary (other than Junior
Securities) shall be received by the Holders of the Notes or the Trustee on
behalf of the Holders or any Paying Agent at the time when such payment or
distribution is prohibited by the foregoing provisions, such payment or
distribution shall be held in trust for the benefit of the holders of Senior
Indebtedness, and shall be paid or delivered by such Holders or the Trustee or
such Paying Agent, as the case may be, to the holders of the Senior Indebtedness
remaining unpaid or unprovided for or their representative or representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Indebtedness may have been issued,
ratably according to the aggregate amounts remaining unpaid on account of the
Senior Indebtedness held or represented by each, for application to the payment
of all Senior Indebtedness remaining unpaid, to the extent necessary to pay or
to provide for the payment of all such Senior Indebtedness in full after giving
effect to any concurrent payment or distribution, or provision therefor, to the
holders of such Senior Indebtedness.
Section 12.4. Noteholders to Be Subrogated to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full of all Senior Indebtedness as
provided herein, the Holders of Notes shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments or distributions of
assets of the Company applicable to the Senior Indebtedness until all amounts
owing on the Notes shall be paid in full, and for the purpose of such
subrogation no such payments or distributions to the holders of such Senior
Indebtedness by the Company, or by or on behalf of the Holders by virtue of this
Article XII, which otherwise would have been made to the Holders shall, as
between the Company and the Holders, be deemed to be payment by the Company or
on account of such Senior Indebtedness, it being understood that the provisions
of this Article XII are and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the holders of such Senior
Indebtedness, on the other hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article XII shall
have been applied, pursuant to the provisions of this Article XII, to the
payment of amounts payable under Senior Indebtedness, then the Holders shall be
entitled to receive from the holders of such Senior Indebtedness any payments or
distributions received by such holders of Senior Indebtedness in excess of the
amount sufficient to pay all amounts payable under or in respect of such Senior
Indebtedness in full.
Section 12.5. Obligations of the Company Unconditional.
Nothing contained in this Article XII or elsewhere in this
Indenture or in the Notes is intended to or shall impair as between the Company
and the Holders the obligation of each such Person, which is absolute and
unconditional, to pay to the Holders the principal of, premium, if any, interest
on, and Liquidated Damages with respect to, 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 and creditors of the Company
other than the holders of the Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article XII, of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy. Notwithstanding anything to the contrary in this
Article XII or elsewhere in this Indenture or in the Notes, upon any
distribution of assets of the Company referred to in this Article XII, the
Trustee, subject to the provisions of Sections 7.1 and 7.2, and the Holders
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other Person making any distribution to the Trustee or to
the Holders, 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 XII so long as such court has been apprised of the provisions
of, or the order, decree or certificate makes reference to, the provisions of
this Article XII. Nothing in this Section 12.5 shall apply to the claims of, or
payments to, the Trustee under or pursuant to Section 7.7 or otherwise for its
own benefit.
Section 12.6. Trustee and Other Agents Entitled to Assume Payments Not
Prohibited in Absence of Notice.
The Trustee and all other Agents shall not at any time be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee unless and until a Trust Officer of
the Trustee or any Paying Agent shall have actually received, no later than one
Business Day prior to such payment, written notice thereof in compliance with
Section 14.2 from the Company or from one or more holders of Senior Indebtedness
or from any representative therefor and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Sections 7.1 and 7.2,
shall be entitled in all respects conclusively to assume that no such fact
exists.
Section 12.7. Application by Trustee of Assets Deposited with It.
Amounts deposited in trust with the Trustee pursuant to and in
accordance with this Indenture shall be, subject to Section 7.7, for the sole
benefit of Noteholders and, to the extent allocated for the payment of Notes,
shall not be subject to the subordination provisions of this Article XII.
Otherwise, any deposit of assets with the Trustee or any other Agent (whether or
not in trust) for the payment of principal of or interest on any Notes shall be
subject to the provisions of Sections 12.1, 12.2, 12.3 and 12.4; provided that
by, if prior to one Business Day preceding the date on which by the terms of
this Indenture any such assets may become distributable for any purpose
(including, without limitation, the payment of either principal of or interest
on any Note) the Trustee or such Paying Agent shall not have received with
respect to such assets the written notice provided for in Section 12.6, then the
Trustee or such Paying Agent shall have full power and authority to receive such
assets and to apply the same to the purpose for which they were received,
without liability, and shall not be affected by any notice to the contrary which
may be received by it on or after such date.
Section 12.8. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior
Indebtedness to enforce subordination provisions contained in this Article XII
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 of
this Indenture, regardless of any knowledge thereof which any such holder may
have or be otherwise charged with. The holders of Senior Indebtedness may
extend, renew, modify or amend the terms of the Senior Indebtedness or any
security therefor and release, sell or exchange such security and otherwise deal
freely with the Company, all without affecting the liabilities and obligations
of the parties to this Indenture or the Holders.
Section 12.9. Noteholders Authorize Trustee to Effectuate Subordination of
Notes.
Each Holder of the Notes by his acceptance thereof authorizes
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provisions contained in this Article XII and to
protect the rights of the Holders pursuant to this Indenture, and appoints the
Trustee his attorney-in-fact for such purpose, including, in the event of any
dissolution, winding up, liquidation or reorganization of the Company (whether
in bankruptcy, insolvency or receivership proceedings or upon an assignment for
the benefit of creditors of the Company), the immediate filing of a claim for
the unpaid balance of his Notes in the form required in said proceedings and
cause said claim to be approved. If the Trustee does not file a proper claim or
proof of debt in the form required in such proceeding prior to 30 days before
the expiration of the time to file such claim or claims, then the holders of the
Senior Indebtedness or their representative are or is hereby authorized to have
the right to file and are or is hereby authorized to file an appropriate claim
for and on behalf of the Holders of said Notes. Nothing herein contained shall
be deemed to authorize the Trustee or the holders of Senior Indebtedness or
their representative to authorize or consent to or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Senior Indebtedness or their
representative to vote in respect of the claim of any Noteholder in any such
proceeding.
Section 12.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth
in this Article XII 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
this Indenture shall be construed to deprive the Trustee of any of its rights as
such holder.
Section 12.11. Article XII Not to Prevent Events of Default.
The failure to make a payment on account of principal of,
premium, if any, interest on, or Liquidated Damages with respect to, the Notes
by reason of any provision of this Article XII shall not be construed as
preventing the occurrence of a Default or an Event of Default under Section 6.1
or in any way prevent the Holders from exercising any right hereunder other than
the right to receive payment on the Notes.
Section 12.12. No Duty of Trustee and Other Agents to Holders of Senior
Indebtedness.
The Trustee and the other Agents shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness, and shall not be
liable to any such holders (other than for its willful misconduct or negligence)
if it shall in good faith mistakenly pay over or distribute to the Holders of
Notes or the Company or any other Person, cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
XII or otherwise. Nothing in this Section 12.12 shall affect the obligation of
any other such Person receiving such payment or distribution from the Trustee or
any other Agent to hold such payment for the benefit of, and to pay such payment
over to, the holders of Senior Indebtedness or their representative.
ARTICLE XIII.
CONVERSION OF NOTES
Section 13.1. Conversion Privilege.
Subject to and upon compliance with the provisions of this
Article XIII, at the option of the Holder thereof, any Note may at any time, be
converted, in whole, or in part in integral multiples of $1,000 principal
amount, into fully paid and non-assessable shares of Common Stock issuable upon
conversion of the Notes, at the conversion price in effect at the Date of
Conversion, until and including, but not after the close of business on the
Stated Maturity, unless such Note or some portion thereof shall have been called
for redemption or delivered for repurchase prior to such date and no default is
made in making due provision for the payment of the Redemption Price or the
Repurchase Price, as the case may be, in accordance with the terms of this
Indenture, in which case, with respect to such Note or portion thereof as has
been so called for redemption or delivered for repurchase, such Note or portion
thereof may be so converted until and including, but not after, the close of
business on the Business Day immediately prior to the Redemption Date or
Repurchase Date, as applicable, for such Note, unless the Company subsequently
fails to pay the applicable Redemption Price or Repurchase Price, as the case
may be.
Section 13.2. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of
any Note to be converted shall surrender such Note to the Company at any time
during usual business hours at its office or agency maintained for the purpose
as provided in this Indenture, accompanied by a fully executed written notice,
in substantially the form set forth on the reverse of the Note, that the Holder
elects to convert such Note or a stated portion thereof constituting an integral
multiple of $1,000 principal amount, and, if such Note is surrendered for
conversion during the period between the close of business on any Record Date
and the opening of business on the next following Interest Payment Date and has
not been called for redemption on a Redemption Date which occurs within such
period, accompanied (except in the case of the Interest Payment Date occurring
on November 1, 2000) also by payment of an amount equal to the interest payable
on such Interest Payment Date on the principal amount of the Note being
surrendered for conversion, notwithstanding such conversion. Such notice of
conversion shall also state the name or names (with address) in which the
certificate or certificates for shares of Common Stock shall be issued. Notes
surrendered for conversion shall (if reasonably required by the Company or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company duly executed by,
the Holder or his attorney duly authorized in writing. As promptly as
practicable after the receipt of such notice and the surrender of such Note as
aforesaid, the Company shall, subject to the provisions of Section 13.8 hereof,
issue and deliver at such office or agency to such Holder, or on his written
order, a certificate or certificates for the number of full shares of Common
Stock issuable on such conversion of Notes in accordance with the provisions of
this Article XIII and Cash, as provided in Section 13.3 hereof, in respect of
any fraction of a share of Common Stock otherwise issuable upon such conversion.
Such conversion shall be deemed to have been effected immediately prior to the
close of business on the date (herein called the "Date of Conversion") on which
such Note shall have been surrendered as aforesaid, and the person or persons in
whose name or names any certificate or certificates for shares of Common Stock
shall be issuable upon such conversion shall be deemed to have become on the
Date of Conversion the holder or holders 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 cause the person or persons
in whose name or names the certificate or certificates for such shares are to be
issued to be deemed to have become the record holder or holders thereof for all
purposes at the opening of business on the next succeeding day on which such
stock transfer books are open but such conversion shall nevertheless be at the
conversion price in effect at the close of business on the date when such Note
shall have been so surrendered with the conversion notice. In the case of
conversion of a portion, but less than all, of a Note, the Company shall as
promptly as practicable execute, and the Trustee shall thereafter authenticate
and deliver to the Holder thereof, at the expense of the Company, a Note or
Notes in the aggregate principal amount of the unconverted portion of the Note
surrendered. Except as otherwise expressly provided in this Indenture, no
payment or adjustment shall be made for interest accrued on any Note (or portion
thereof) converted or for dividends or distributions on any Common Stock issued
upon conversion of any Note.
Section 13.3. Fractional Interests.
No fractions of shares or scrip representing fractions of
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 thereof shall be computed on the
basis of the aggregate principal amount of the Notes so surrendered. If any
fraction of a share of Common Stock would, except for the foregoing provisions
of this Section 13.3, be issuable on the conversion of any Note or Notes, the
Company shall make payment in lieu thereof in an amount of Cash equal to the
value of such fraction computed on the basis of the last sale price of the
Common Stock as reported on the Nasdaq Stock Market's National Market (or if not
listed for trading thereon, then on the principal national securities exchange
or on the principal automated quotation system on which the Common Stock is
listed or admitted to trading) at the close of business on the Date of
Conversion or if no such sale takes place on such day, the last sale price for
such day shall be the average of the closing bid and asked prices regular way on
the Nasdaq Stock Market's National Market (or if not listed for trading thereon,
on the principal national securities exchange or on the principal automated
quotation system on which the Common Stock is listed or admitted to trading) for
such day (any such last sale price being hereinafter referred to as the "Last
Sale Price"). If on such Trading Day the Common Stock is not quoted by any such
organization, the fair value of such Common Stock on such day, as reasonably
determined in good faith by the Board of Directors of the Company, shall be
used.
Section 13.4. Conversion Price.
The conversion price per share of Common Stock issuable upon
conversion of the Notes (as such price may be adjusted, herein called the
"Conversion Price) shall initially be $44.50 (which reflects a conversion rate
of 22.4719 shares of Common Stock per $1,000 in principal amount of Notes).
Section 13.5. Adjustment of Conversion Price.
The Conversion Price shall be subject to adjustment from time
to time as follows:
(a) In case the Company shall make or pay a dividend or make a
distribution in shares of Common Stock on any class of Capital Stock of the
Company, the Conversion Price in effect immediately following the record date
fixed for the determination of stockholders entitled to receive such dividend or
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 such date and the denominator shall be
the sum of such number of shares and the total number of shares constituting
such dividend or other distribution. An adjustment made pursuant to this
subsection (a) shall become effective immediately, except as provided in
subsection (i) and (j) below, after such record date.
(b) In case the Company shall (1) subdivide its outstanding
shares of Common Stock into a greater number of shares or (2) combine or
reclassify its outstanding shares of Common Stock into a smaller number of
shares, the Conversion Price in effect immediately following the effectiveness
of such action shall be adjusted by multiplying such Conversion Price by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding immediately prior to such subdivision or combination and the
denominator shall be the number of shares outstanding immediately after giving
effect to such subdivision or combination. An adjustment made pursuant to this
subsection (b) shall become effective immediately, except as provided in
subsection (i) and (j) below, after the effective date of a subdivision or
combination.
(c) In case the Company shall issue rights, options or
warrants to all or substantially all holders of Common Stock entitling them to
subscribe for or purchase shares of Common Stock at a price per share less than
the then current market price per share of the Common Stock (as determined
pursuant to subsection (g) below) on the record date fixed for determination of
the stockholders entitled to receive such rights, option or warrants, the
Conversion Price in effect immediately following such record date shall be
adjusted to a price, computed to the nearest cent, so that the same shall equal
the price determined by multiplying:
(i) such Conversion Price by a fraction, of which
(ii) the numerator shall be (A) the number of shares of Common
Stock outstanding on such record date plus (B) the number of shares
which the aggregate offering price of the total number of shares so
offered for subscription or purchase would purchase at such current
market price (determined by multiplying such total number of shares by
the exercise price of such rights, options or warrants and dividing the
product so obtained by such current market price), and of which
(iii) the denominator shall be (A) the number of shares of
Common Stock outstanding on such record date plus (B) the number of
additional shares of Common Stock which are so offered for subscription
or purchase.
Such adjustment shall become effective immediately, except as
provided in subsection (i) and (j) below, after the record date for the
determination of holders entitled to receive such rights, options or warrants;
provided, however, that if any such rights, options or warrants issued by the
Company as described in this subsection (c) are only exercisable upon the
occurrence of certain triggering events, then the Conversion Price will not be
adjusted as provided in this subsection (c) until such triggering events occur.
Upon the expiration or termination of any rights, options or warrants without
the exercise of such rights, options or warrants, the Conversion Price then in
effect shall be adjusted immediately to the Conversion Price which would have
been in effect at the time of such expiration or termination had such rights,
options or warrants, to the extent outstanding immediately prior to such
expiration or termination, never been issued.
(d) In case the Company or any Subsidiary of the Company shall
distribute to all or substantially all holders of Common Stock, any of its
assets, evidences of indebtedness, cash or securities (other than (x) dividends
or distributions exclusively in cash, (y) any dividend or distribution for which
an adjustment is required to be made in accordance with subsection (a) or (c)
above and in mergers and consolidations to which Section 13.6 applies, or (z)
any distribution of rights or warrants subject to subsection (1) below) then in
each such case the Conversion Price in effect immediately following the record
date fixed for the determination of the stockholders entitled to such
distribution shall be adjusted so that the same shall equal the price determined
by multiplying such Conversion Price by a fraction of which the numerator shall
be the then current market price per share of the Common Stock (determined as
provided in subsection (g) below) on such record date less the then fair market
value (as reasonably determined in good faith by the Board of Directors of the
Company) of the portion of the assets so distributed applicable to one share of
Common Stock, and of which the denominator shall be such current market price
per share of the Common Stock. Such adjustment shall become effective
immediately, except as provided in subsection (i) and (j) below, after the
record date for the determination of stockholders entitled to receive such
distribution.
(e) In case the Company or any Subsidiary of the Company shall
make any distribution consisting exclusively of cash (excluding any cash portion
of distributions for which an adjustment is required to be made in accordance
with subsection (d) above, or cash distributed upon a merger or consolidation to
which Section 13.6 applies) to all or substantially all holders of Common Stock
in an aggregate amount that, combined together with (i) all other such all-cash
distributions made within the then preceding 12 months in respect of which no
adjustment pursuant to this subsection (e) has been made and (ii) any cash and
the fair market value of other consideration paid or payable in respect of any
tender or exchange offer by the Company or any of its Subsidiaries for Common
Stock concluded within the preceding 12 months in respect of which no adjustment
has been made, exceeds 15% of the Company's market capitalization (defined as
being the product of the then current market price of the Common Stock
(determined as provided in subsection (g) below) times the number of shares of
Common Stock then outstanding) on the record date fixed for the determination of
the stockholders entitled to such distribution, in each such case the Conversion
Price immediately following such record date shall be adjusted so that the same
shall equal the price determined by multiplying such Conversion Price by a
fraction of which the numerator shall be the then current market price per share
of the Common Stock on such record date less the amount of the cash and/or fair
market value (as reasonably determined in good faith by the Board of Directors
of the Company) of other consideration so distributed applicable to one share of
Common Stock, and of which the denominator shall be such current market price
per share of the Common Stock. Such adjustment shall become effective
immediately, except as provided in subsection (i) and (j) below, after the
record date for the determination of stockholders entitled to receive such
distribution.
(f) In case the Company or any Subsidiary of the Company shall
complete a tender or exchange offer for all or any portion of the Common Stock
(any such tender or exchange offer being referred to as an "Offer") to the
extent that the aggregate consideration of such Offer, having a fair market
value as of the expiration of such Offer (the "Expiration Time"), together with
(i) any cash and the fair market value of any other consideration payable in
respect of any other tender or exchange offer for Common Stock, as of the
expiration of such other tender or exchange offer, expiring within the 12 months
preceding the expiration of such Offer and in respect of which no Conversion
Price adjustment pursuant to this subsection (f) has been made and (ii) the
aggregate amount of any all-cash distributions referred to in subsection (e) of
this Section 13.5 to all holders of Common Stock within the 12 months preceding
the expiration of such Offer for which no Conversion Price adjustment pursuant
to such subsection (e) has been made, exceeds 15% of the product of the then
current market price per share (determined as provided in subsection (g) below)
of the Common Stock on the Expiration Time times the number of shares of Common
Stock outstanding (including any tendered shares) on the Expiration Time, the
Conversion Price in effect immediately following such Expiration Time shall be
reduced by multiplying such Conversion Price by a fraction of which the
numerator shall be (i) the product of the then current market price per share
(determined as provided in subsection (g) below) of the Common Stock on the
Expiration Time times the number of shares of Common Stock outstanding
(including any tendered shares) on the Expiration Time minus (ii) the fair
market value of the aggregate consideration so in excess of such 15% and payable
to stockholders based on the acceptance (up to any maximum specified in the
terms of the Offer) of all shares validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so accepted being referred to as the
"Purchased Shares") and the denominator shall be the product of (i) such current
market price per share on the Expiration Time times (ii) such number of
outstanding shares on the Expiration Time less the number of Purchased Shares,
such reduction to become effective immediately prior to the opening of business
on the day following the Expiration Time.
For purposes of this subsection (f), the fair market value of any
consideration with respect to an Offer shall be reasonably determined in good
faith by the Board of Directors of the Company and described in a Board
Resolution.
(g) For the purpose of any computation under subsections (c),
(d), (e) and (f) above, the current market price per share of Common Stock on
any date shall be deemed to be the average of the Last Sale Prices of a share of
Common Stock for the five consecutive Trading Days selected by the Company
commencing not more than 20 Trading Days before, and ending not later than, the
earlier ofthe date in question and the date before the "'ex' date," with respect
to the issuance, distribution or Offer requiring such computation. If on any
such Trading Day the Common Stock is not quoted by any organization referred to
in the definition of Last Sale Price in Section 13.3 hereof, the fair value of
the Common Stock on such day, as reasonably determined in good faith by the
Board of Directors of the Company, shall be used. For purposes of this
paragraph, the term "'ex' date," when used with respect to any issuance,
distribution or payments with respect to an Offer, means the first date on which
the Common Stock trades regular way on the Nasdaq Stock Market's National Market
(or if not listed or admitted to trading thereon, then on the principal national
securities exchange or automated quotation system if the Common Stock is listed
or admitted to trading thereon) without the right to receive such issuance,
distribution or Offer.
(h) In addition to the foregoing adjustments in subsections
(a), (b), (c), (d), (e) and (f) above, the Company, from time to time and to the
extent permitted by law, may reduce the Conversion Price by any amount for at
least 20 Business Days, if the Board of Directors has made a determination,
which determination shall be conclusive, that such reduction would be in the
best interests of the Company. The Company shall cause notice of such reduction
to be mailed to each Holder of Notes, in the manner specified in Section 13.7,
at least 15 days prior to the date on which such reduction commences. The
Company may, at its option, also make such reductions in the Conversion Price in
addition to those set forth above, as the Board of Directors deems advisable to
avoid or diminish any income tax to holders of shares of Common Stock resulting
from any dividend or distribution of stock (or rights to acquire stock) or from
any event treated as such for United States federal income tax purposes.
(i) In any case in which this Section 13.5 shall require that
an adjustment be made immediately following a record date, the Company may elect
to defer the effectiveness of such adjustment (but in no event until a date
later than the effective time of the event giving rise to such adjustment), in
which case the Company shall, with respect to any Note converted after such
record date and on and before such adjustment shall have become effective (i)
defer paying any Cash payment pursuant to Section 13.3 hereof or issuing to the
Holder of such Note the number of shares of Common Stock and other capital stock
of the Company (or other assets or securities) issuable upon such conversion in
excess of the number of shares of Common Stock and other Capital Stock of the
Company issuable thereupon only on the basis of the Conversion Price prior to
adjustment, and (ii) not later than five Business Days after such adjustment
shall have become effective, pay to such Holder the appropriate Cash payment
pursuant to Section 13.3 hereof and issue to such Holder the additional shares
of Common Stock and other Capital Stock of the Company issuable on such
conversion.
(j) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at least 1.0% of
the Conversion Price; provided, that any adjustments which by reason of this
subsection (i) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Article
XIII shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be.
(k) Whenever the Conversion Price is adjusted as herein
provided, the Company shall promptly (i) file with the Trustee and each
conversion agent an Officers' Certificate setting forth the Conversion Price
after such adjustment and setting forth a brief statement of the facts requiring
such adjustment, which certificate shall be conclusive evidence of the
correctness of such adjustment, and (ii) mail or cause to be mailed a notice of
such adjustment to each holder of Notes at his address as the same appears on
the registry books of the Company.
(l) In the event that the Company distributes rights or
warrants (other than those referred to in subsection (c) above) pro rata to
holders of Common Stock, so long as any such rights or warrants have not expired
or been redeemed by the Company, the Company shall make proper provision so that
the Holder of any Note surrendered for conversion will 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 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 the rights or
warrants, and (ii) if such conversion occurs after such 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 such Note so converted was
convertible immediately prior to such Distribution Date would have been entitled
on such Distribution Date in accordance with the terms and provisions of and
applicable to the rights or warrants.
Section 13.6. Continuation of Conversion Privilege in Case of Reclassification,
Change, Merger, Consolidation or Sale of Assets.
If any of the following shall occur, namely: (a) any
reclassification or change of outstanding shares of Common Stock issuable upon
conversion of the Notes (other than a change in par value, or from par value to
no par value, or from no par value, to par value, or as a result of a
subdivision or combination), (b) any consolidation or merger of the Company with
or into any other Person, or the merger of any other Person with or into the
Company (other than a merger which does not result in any reclassification,
change, conversion, exchange or cancellation of outstanding shares of Common
Stock) or (c) any sale, transfer or conveyance of all or substantially all of
the assets of the Company (computed on a consolidated basis), then the Company,
or such successor or purchasing entity, as the case may be, shall, as a
condition precedent to such reclassification, change, consolidation, merger,
sale or conveyance, execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Note then outstanding shall have the right to
convert such Note only into the kind and amount of shares of stock and other
securities and property (including cash) receivable upon such reclassification,
change, consolidation, merger, sale, transfer or conveyance by a holder of the
number of shares of Common Stock issuable upon conversion of such Note
immediately prior to such reclassification, change, consolidation, merger, sale,
transfer or conveyance assuming such holder of Common Stock of the Company
failed to exercise his rights of an election, if any, as to the kind or amount
of securities, cash and other property receivable upon such reclassification,
change, consolidation, merger, sale, transfer or conveyance (provided that if
the kind or amount of securities, cash, and other property receivable upon such
reclassification, change, consolidation, merger, sale, transfer or conveyance is
not the same for each share of Common Stock of the Company held immediately
prior to such reclassification, change, consolidation, merger, sale, transfer or
conveyance in respect of which such rights of election shall not have been
exercised ("non-electing share"), then for the purpose of this Section 13.6 the
kind and amount of securities, cash and other property receivable upon such
reclassification, change, consolidation, merger, sale, transfer or conveyance by
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 XIII. If, in
the case of any such consolidation, merger, sale or conveyance, the stock or
other securities and property (including cash) receivable thereupon by a holder
of shares of Common Stock includes shares of stock or other securities and
property (including cash) of a corporation other than the successor or
purchasing corporation, as the case may be, in such consolidation, merger, sale
or conveyance, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders of the Notes as the Board of Directors of the Company
shall reasonably consider necessary by reason of the foregoing. The provisions
of this Section 13.6 shall similarly apply to successive consolidations,
mergers, sales or conveyances.
Notice of the execution of each such supplemental indenture
shall be mailed to each Holder of Notes at his address as the same appears on
the registry books of the Company.
Neither the Trustee nor any conversion agent shall be under
any responsibility to determine the correctness of any provisions contained in
any such supplemental indenture relating either to the kind or amount of shares
of stock or securities or property (including cash) receivable by Holders of
Notes upon the conversion of their Notes after any such reclassification,
change, consolidation, merger, sale or conveyance or to any adjustment to be
made with respect thereto, but, subject to the provisions of Article VII hereof,
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 13.7. Notice of Certain Events.
In case:
(a) the Company shall declare a dividend (or any other distribution)
payable to the holders of Common Stock (other than cash dividends);
(b) the Company shall authorize the granting to the holders of Common
Stock of rights, warrants or options to subscribe for or purchase any shares of
stock of any class or of any other rights;
(c) the Company shall authorize any reclassification or change of the
Common Stock (including a subdivision or combination of its outstanding shares
of Common Stock), or any consolidation or merger to which the Company is a party
and for which approval of any stockholders of the Company is required, or the
sale or conveyance of all or substantially all the property or business of the
Company;
(d) there shall be proposed any voluntary or involuntary dissolution,
liquidation or winding-up of the Company; or
(e) the Company or any of its Subsidiaries shall complete an Offer;
then, the Company shall cause to be filed at the office or agency maintained for
the purpose of conversion of the Notes as provided in Section 13.2 hereof, and
shall cause to be mailed to each Holder of Notes, at his address as it shall
appear on the registry books of the Company, at least 20 days before the date
hereinafter specified (or the earlier of the dates hereinafter specified, in the
event that more than one date is specified), a notice stating the date on which
(1) a record is expected to be taken for the purpose of such dividend,
distribution, rights, warrants or options or Offer, or if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution, rights, warrants or options or to participate in
such Offer are to be determined, or (2) such reclassification, change,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding-up
is expected to become effective and the date, if any is to be fixed, as of which
it is expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon such reclassification, change, consolidation, merger, sale,
conveyance, dissolution, liquidation or winding-up.
Section 13.8. Taxes on Conversion.
The Company will pay any and all documentary, stamp or similar
taxes payable to the United States of America or any political subdivision or
taxing authority thereof or therein in respect of the issue or delivery of
shares of Common Stock on conversion of Notes pursuant thereto; provided,
however, that the Company shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issue or delivery of shares
of Common Stock in a name other than that of the Holder of the Notes to be
converted and no such issue or delivery shall be made unless and until the
person requesting such issue or delivery has paid to the Company the amount of
any such tax or has established, to the satisfaction of the Company, that such
tax has been paid. The Company extends no protection with respect to any other
taxes imposed in connection with conversion of Notes.
Section 13.9. Company to Provide Stock.
The Company shall reserve, free from pre-emptive rights, out
of its authorized but unissued shares, sufficient shares to provide for the
conversion of the Notes from time to time as such Notes are presented for
conversion, provided, that nothing contained herein shall be construed to
preclude the Company from satisfying its obligations in respect of the
conversion of Notes by delivery of repurchased shares of Common Stock which are
held in the treasury of the Company.
If any shares of Common Stock to be reserved 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 or delivered upon conversion, then the Company covenants that it
will in good faith and as expeditiously as possible use all reasonable efforts
to secure such registration or approval, as the case may be, provided, however,
that nothing in this Section 13.9 shall be deemed to limit in any way the
obligations of the Company provided in this Article XIII.
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value, if any, of the Common
Stock, the Company will take all corporate action which may, in the Opinion of
Counsel, be necessary in order that the Company may validly and legally issue
fully paid and non-assessable shares of 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 of preemptive rights.
Section 13.10. Disclaimer of Responsibility for Certain Matters.
Neither the Trustee nor any agent of the Trustee shall at any
time be under any duty or responsibility to any Holder of Notes to determine
whether any facts exist which may require any adjustment of the Conversion
Price, or with respect to the Officers' Certificate referred to in Section 13.5
hereof, or with respect to the nature or extent of any such adjustment when
made, or with respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. Neither the Trustee nor
any agent of the Trustee shall 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 (including cash), which may at any time be issued or
delivered upon the conversion of any Note; and neither the Trustee nor any
conversion agent makes any representation with respect thereto. Neither the
Trustee nor any agent of the Trustee shall be responsible for any failure of the
Company to issue, register the transfer of or deliver any shares of Common Stock
or stock certificates or other securities or property (including cash) upon the
surrender of any Note for the purpose of conversion or, subject to Article VII
hereof, to comply with any of the covenants of the Company contained in this
Article XIII.
Section 13.11. Return of Funds Deposited for Redemption of Converted Notes.
Any funds which at any time shall have been deposited by the
Company or on its behalf with the Trustee or any other Paying Agent for the
purpose of paying the principal of and interest on any of the Notes and which
shall not be required for such purposes because of the conversion of such Notes,
as provided in this Article XIII, shall after such conversion be repaid to the
Company by the Trustee or such other Paying Agent.
ARTICLE XIV.
MISCELLANEOUS
Section 14.1. TIA Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed by operation of the TIA, the imposed duties,
whether or not this Indenture has been qualified under the TIA, shall control.
Section 14.2. Notices.
Any notices or other communications to the Company or the
Trustee required or permitted hereunder shall be in writing, and shall be
sufficiently given if made by hand delivery, by telex, by telecopier or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Company:
Fine Host Corporation
0 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Telecopy: (000) 000-0000
Any party by notice to each other party may designate
additional or different addresses as shall be furnished in writing by such
party. Any notice or communication to any party shall be deemed to have been
given or made as of the date so delivered, if personally delivered; when receipt
is acknowledged, if telecopied; and five Business Days after mailing if sent by
registered or certified mail, postage prepaid (except that a notice of change of
address shall not be deemed to have been given until actually received by the
addressee).
Any notice or communication mailed to a Noteholder shall be
mailed to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it except for
notices and communications to the Trustee which shall be effective only upon
actual receipt thereof. Section 14.3. Communications by Holders with Other
Holders.
Noteholders may communicate pursuant to TIA ss. 312(b) with
other Noteholders with respect to their rights under this Indenture or the
Notes. The Company, the Trustee, the Registrar and any other Person shall have
the protection of TIA ss. 312(c).
Section 14.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(1) An Officers' Certificate (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
Section 14.5. Statements Required in Certificate or Opinion.
Each certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of each
such Person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may rely on
an Officers' Certificate or certificates of public officials.
Section 14.6. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a
meeting of Noteholders. The Paying Agent or Registrar may make reasonable rules
for its functions.
Section 14.7. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which
banking institutions in New York, New York are authorized or obligated by law or
executive order to close. If a payment date is a Legal Holiday at such place,
payment may be made at such place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
Section 14.8. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS INDENTURE AND THE NOTES, AND IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF
THE AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT
MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY NOTEHOLDER TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
Section 14.9. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 14.10. No Recourse Against Others.
No direct or indirect partner, employee, stockholder, director
or officer, as such, past, present or future of the Company or any successor
corporation, shall have any personal liability in respect of the obligations of
the Company under the Notes or this Indenture by reason of his, her or its
status as such partner, stockholder, employee, director or officer. Each
Noteholder by accepting a Note waives and releases all such liability. Such
waiver and release are part of the consideration for the issuance of the Notes.
Section 14.11. Successors.
All agreements of the Company in this Indenture and the Notes
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
Section 14.12. Duplicate Originals.
All parties may sign any number of copies or counterparts of
this Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.
Section 14.13. Severability.
In case any one or more of the provisions in this Indenture or
in the Notes shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
Section 14.14. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and headings of
the Articles and the 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 14.15. Qualification of Indenture.
The Company shall qualify this Indenture under the TIA in
accordance with the terms and conditions of the Registration Rights Agreement
and shall pay all costs, fees and expenses (including attorneys' fees for the
Company and the Trustee) incurred in connection therewith, including, but not
limited to, costs, fees and expenses of qualification of the Indenture and
printing this Indenture and the Notes. The Trustee shall be entitled to receive
from the Company any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
Section 14.16. Registration Rights.
Certain Holders of the Notes are entitled to certain
registration rights with respect to such Notes pursuant to, and subject to the
terms of, the Registration Rights Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
FINE HOST CORPORATION, a Delaware corporation
By:______________________________
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:______________________________
Name:
Title:
EXHIBIT A
[FORM OF NOTE]
FINE HOST CORPORATION
5% CONVERTIBLE SUBORDINATED NOTES DUE 2004
No.__ CUSIP No.___________
$__________
Fine Host Corporation, a Delaware corporation (hereinafter
called the "Company," which term includes any successors under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
____________________________, or registered assigns, the principal sum of
_________ Dollars, on November 1, 2004.
Interest Payment Dates: May 1 and November 1; commencing May
1, 1998.
Record Dates: April 15 and October 15.
Reference is made to the further provisions of this Note
hereinafter set forth, which will, for all purposes, have the same effect as if
set forth at this place.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
FINE HOST CORPORATION, a Delaware corporation
[Seal]
By:__________________________________
Name:
Title:
Attest:_______________________
Assistant Secretary
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Notes described in the within-mentioned
Indenture.
Dated:___________
THE BANK OF NEW YORK, as
Trustee
By:_____________________________
Authorized Signatory
FINE HOST CORPORATION
5% Convertible Subordinated Notes due 2004
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by The
Depository Trust Company, a New York corporation ("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. Unless this
certificate is presented by an authorized representative of the Depository to
the Company or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of the Depositary (and any
payment 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 inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.1
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.
S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS, AND ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF U S. PERSONS, EXCEPT AS SET FORTH BELOW. BY
ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A) (1),
(2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AN "IAI"), OR
(C) IT IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT
IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO
THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHO THE HOLDER
REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A
UNDER THE SECURITIES ACT, (C) TO AN IAI THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS
SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF
THE COMPANY SO REQUESTS, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT,
(D) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
904 OF REGULATION S UNDER THE SECURITIES ACT, (E) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY, THE TRUSTEE AND THE REGISTRAR) OR (G) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE MEANINGS
GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING.2
1. Interest.
Fine Host Corporation, a Delaware corporation (hereinafter called the
"Company," which term includes any successors under the Indenture hereinafter
referred to), promises to pay interest on the principal amount of this Note at
the rate of 5% per annum. To the extent it is lawful, the Company promises to
pay interest on any interest payment due but unpaid on such principal amount at
a rate of 5% per annum compounded semi-annually.
The Company will pay interest semi-annually in cash in arrears on May 1
and November 1 of each year (each, an "Interest Payment Date"), commencing May
1, 1998. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid on the Notes, from
October 27, 1997. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
2. Method of Payment.
The Company shall pay interest on the Notes (except defaulted interest)
to the Persons who are the registered Holders at the close of business on the
Record Date immediately preceding the Interest Payment Date. Holders must
surrender Notes to a Paying Agent to collect principal payments. Any such
interest not so punctually paid, and defaulted interest relating thereto, may be
paid to the Persons who are registered Holders at the close of business on a
Special Record Date for the payment of such defaulted interest, as more fully
provided in the Indenture referred to below. Except as provided below, the
Company shall pay principal and interest in such coin or currency of the United
States of America as at the time of payment shall be legal tender for payment of
public and private debts ("U.S. Legal Tender"). The Notes will be payable as to
principal, premium, interest and Liquidated Damages at the office or agency of
the Company maintained for such purpose within or without the City and State of
New York, or at the option of the Company, payment of principal, premium,
interest and Liquidated Damages may be made by check mailed to the Holders at
their addresses set forth in the registry of Holders, and provided that, upon
the request of The Depository Trust Company, a New York corporation (the
"Depositary"), payment by wire transfer of immediately available funds will be
required with respect to principal of, premium and interest on and Liquidated
Damages with respect to Global Notes and all other Notes held of record by the
Depositary, or its nominee, if the Depositary shall have provided wire transfer
instructions to the Company or the Paying Agent.
3. Paying Agent and Registrar.
The Bank of New York (the "Trustee") will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or co-Registrar
without notice to the Holders. The Company or any of its Subsidiaries may,
subject to certain exceptions, act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
The Company issued the Notes under an Indenture, dated as of October
27, 1997 (as amended or supplemented from time to time the "Indenture"), between
the Company and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act, as in effect on the date of the Indenture. The Notes are
subject to all such terms, and Holders of Notes are referred to the Indenture
and said Act for a statement of them. The Notes are general unsecured
obligations of the Company limited in aggregate principal amount to
$200,000,000.
5. Redemption.
The Notes may be redeemed in whole or from time to time in part at any
time on and after November 1, 2000, at the option of the Company, at the
Redemption Price (expressed as a percentage of principal amount) set forth below
with respect to the indicated Redemption Date, in each case, plus any accrued
but unpaid interest and Liquidated Damages to the Redemption Date. The Notes may
not be so redeemed prior to November 1, 2000.
If redeemed during
the 12-month period
beginning on November 1 Redemption Price
2000.................................................102.857%
2001.................................................102.143%
2002.................................................101.429%
2003.................................................100.714%
Any such redemption will comply with Article III of the
Indenture.
6 Notice of Redemption.
Notice of redemption will be sent by first class mail, at least 30 days
and not more than 60 days prior to the Redemption Date to the Holder of each
Note to be redeemed at such Holder's last address as then shown upon the
registry books of the Registrar. Notes may be redeemed in part in integral
multiples of $1,000 only.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Notes called for redemption shall have
been deposited with the Paying Agent on such Redemption Date and payment of the
Notes called for redemption is not prohibited under Article XII of the
Indenture, the Notes called for redemption will cease to bear interest and the
only right of the Holders of such Notes will be to receive payment of the
Redemption Price, plus any accrued and unpaid interest and Liquidated Damages,
if any, to the Redemption Date.
7 Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder may register the transfer of
or exchange Notes in accordance with, the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any Notes
selected for redemption.
8 Persons Deemed Owners.
The registered Holder of a Note may be treated as the owner of it for
all purposes, subject to the provisions of the Indenture and the Notes with
respect to record dates.
9 Unclaimed Money.
If money for the payment of principal, interest or Liquidated Damages
remains unclaimed for two years, the Trustee and the Paying Agent(s) will pay
the money back to the Company at its written request. After that, all liability
of the Trustee and such Paying Agent(s) with respect to such money shall cease.
10 Amendment; Supplement; Waiver.
Subject to specified exceptions, the Indenture or the Notes may be
amended or supplemented, and any existing Default or Event of Default or
compliance with any provision may be waived, with the written consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or consent of any Holder, the parties thereto may
amend or supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency, or make any other change that does not
adversely affect the rights of any Holder of a Note.
11 Conversion Rights.
Subject to the provisions of the Indenture, the Holders have the right
to convert the principal amount of the Notes into fully paid and nonassessable
shares of Common Stock of the Company at the initial conversion price per share
of Common Stock of $44.50 (which reflects a conversion rate of 22.4719 shares of
Common Stock per $1,000 in principal amount of Notes), or at the adjusted
conversion price then in effect, if adjustment has been made as provided in the
Indenture, upon surrender of the Note to the Company, together with a fully
executed notice in substantially the form attached hereto and, if required by
the Indenture, an amount equal to accrued interest payable on such Note.
12 Ranking.
Payment of principal, premium, if any, interest on and Liquidated
Damages with respect to the Notes is subordinated, in the manner and to the
extent set forth in the Indenture, to the prior payment in full of all Senior
Indebtedness.
13 Repurchase at Option of Holder Upon a Change of Control.
If there is a Change of Control, the Company shall be required, subject
to the provisions of the Indenture, to offer to purchase on the Repurchase Date
all outstanding Notes at a purchase price equal to 100% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if any, to the
Repurchase Date. Holders of Notes will receive a Repurchase Offer from the
Company prior to any related Repurchase Date and may elect to have such Notes
purchased by completing the form entitled "Option of Holder to Elect Purchase"
appearing below.
14 Successors.
When a successor assumes all the obligations of its predecessor under
the Notes and the Indenture, the predecessor will be released from those
obligations.
15 Defaults and Remedies.
If an Event of Default occurs and is continuing (other than an Event of
Default relating to certain events of bankruptcy, insolvency or reorganization),
then in every such case, unless the principal of all of the Notes shall have
already become due and payable, either the Trustee or the Holders of 25% in
aggregate principal amount of Notes then outstanding may declare all the Notes
to be due and payable immediately in the manner and with the effect provided in
the Indenture. Holders of Notes may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the
Notes then outstanding may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of Notes notice of any continuing
Default or Event of Default (except a Default in payment of principal, interest
or Liquidated Damages), if it determines that withholding notice is in their
interest.
16 Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates as if it were not the Trustee.
17 No Recourse Against Others.
No stockholder, director, officer or employee, as such, past, present
or future, of the Company or any successor corporation shall have any personal
liability in respect of the obligations of the Company under the Notes or the
Indenture by reason of his, her or its status as such stockholder, director,
officer or employee. Each Holder of a Note by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
18 Authentication.
This Note shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on this Note.
19 Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Note
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
20 CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
21 Additional Rights of Holders of Transfer Restricted Notes.
In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Notes shall have all the rights set forth in the
Registration Rights Agreement.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement. Request
may be made to:
Fine Host Corporation
0 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Secretary
[FORM OF ASSIGNMENT]
I or we assign this Note to
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
Please insert Social Note or other identifying number of assignee
_______________________
and irrevocably appoint______________________agent to transfer this Note on the
books of the Company. The agent may substitute another to act
for him.
Dated:______________________ Signed:__________________________________
(Sign exactly as your name appears on
the other side of this Note)
Signature Guaranty:___________________________
Signatures must be guarantied by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guaranty program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Article XI of the Indenture, check the box:
If you want to elect to have only part of this Note purchased by the
Company pursuant to Article XI of the Indenture, state the amount you want to be
purchased: $
Date:______________________ Signature:_______________________________________
(Sign exactly as your name appears on
the other side of this Note)
Signature Guaranty:______________________________
Signatures must be guarantied by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guaranty program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES3
The following exchanges of a part of this Global Note for Definitive
Notes have been made:
Amount of Amount of Principal Amount Signature of
decrease in increase in of this Global authorized officer
Principal Amount Principal Amount Note following of Trustee or
Date of of this Global of this Global such decrease (or Notes
Exchange Note Note increase) Custodian
-------- ---------------- ---------------- ----------------- ------------------
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF NOTES
Re: 5% CONVERTIBLE SUBORDINATED NOTES DUE 2004 OF FINE HOST CORPORATION.
This Certificate relates to $____________ principal amount of Notes
held in * ____________ book-entry or * ____________ definitive form by
____________________________ (the "Transferor").
1. The Transferor:*
(a) has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Note held by the Depositary a Note or
Notes in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global Note
(or the portion thereof indicated above); or
(b) has requested the Trustee by written order to exchange or register
the transfer of a Note or Notes.
2. In connection with any such request and in respect of each such
Note, the Transferor does hereby certify that Transferor is familiar with the
Indenture relating to the above-captioned Notes and as provided in Section 2.6
of such Indenture, the transfer of this Note does not require registration under
the Securities Act because:*
(a) Such Note is being acquired for the Transferor's own account, without
transfer (in satisfaction of Section 2.6(a)(ii)(A) or Section 2.6(d)(i)(A) of
the Indenture).
(b) Such Note is being transferred to a person who the Transferor
reasonably believes is a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) purchasing for its own account or for the account
of a qualified institutional buyer over which it exercises sole investment
discretion that is aware that the transfer is being made in reliance on Rule
144A (in satisfaction of Section 2.6(a)(ii)(B), Section 2.6(b)(i)(x) or Section
2.6(d)(i)(B) of the Indenture).
(c) Such Note is being transferred in accordance with Regulation S under
the Securities Act (in satisfaction of Section 2.6(a)(ii)(D), Section
2.6(b)(i)(y) or Section 2.6(d)(i)(D) of the Indenture). If requested by either
the Company or the Trustee, an Opinion of Counsel to the effect that such
transfer does not require registration under the Securities Act accompanies this
Certificate (in satisfaction of Section 2.6(a)(ii)(D) or Section 2.6(d)(i)(D) of
the Indenture).
(d) Such Note is being transferred to an institutional investor that is
an "accredited investor" within the meaning of Rule 501(a)(1),(2),(3) or (7)
under the Securities Act which delivers a certificate in the form of Exhibit B
to the Indenture to the Trustee (in satisfaction of Section 2.6(a)(ii)(C) or
Section 2.6(d)(i)(C) of the Indenture), and an opinion of counsel, if the
Company or the Trustee so requests.
(e) Such Note is being transferred in reliance on and in compliance with
another exemption from the registration requirements of the Securities Act. If
requested by either the Company or the Trustee, an Opinion of Counsel to the
effect that such transfer does not require registration under the Securities Act
accompanies this Certificate (in satisfaction of Section 2.6(a)(ii)(E) or
Section 2.6(d)(i)(E) of the Indenture).
__________________________________
[INSERT NAME OF TRANSFEROR]
By:_______________________________
Date:_________________________
3. Affiliation with the Company [check if applicable]
(a) The undersigned represents and warrants that it is, or at
some time during which it held this Note was, an Affiliate of
the Company.
(b) If 3(a) above is checked and if the undersigned was not an
Affiliate of the Company at all times during which it held
this Note, indicate the periods during which the undersigned
was an Affiliate of the Company:
____________________________________.
(c) If 3(a) above is checked and if the Transferee will not pay
the full purchase price for the transfer of this Note on or
prior to the date of transfer indicate when such purchase
price will be paid:
____________________________________.
TO BE COMPLETED BY TRANSFEREE IF 2(b) ABOVE IS CHECKED AND THE TRANSFEROR IS NOT
A QUALIFIED INSTITUTIONAL BUYER:
The undersigned represents and warrants that it is a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act of 1933,
as amended, and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information.
Dated:________________________ _____________________________________
NOTICE: To be executed by an officer.
TO BE COMPLETED BY TRANSFEREE IF 2(c) ABOVE IS CHECKED:
The undersigned represents and warrants that it is not a "U.S. Person"
(as defined in Regulation S under the Securities Act of 1933, as amended).
Dated:________________________ _____________________________________
NOTICE: To be executed by an officer.
If none of the boxes under Section 2 of this certificate is checked or if any of
the above representations required to be made by the Transferee is not made, the
Registrar shall not be obligated to register this Note in the name of any person
other than the Holder hereof.
THE UNDERSIGNED HEREBY AGREES THAT, UNLESS THE BOX ABOVE UNDER ITEM 3(a) IS
CHECKED, THE UNDERSIGNED SHALL BE DEEMED TO HAVE REPRESENTED THAT IT IS NOT NOR
HAS IT BEEN AT ANY TIME DURING WHICH IT HELD THIS SECURITY AN AFFILIATE, AS
DEFINED IN RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OF THE
COMPANY.
Dated:_______________________ _____________________________________
NOTICE: The signature of the Holder
to this assignment must
correspond with the name as
written upon the face of this
Note particular, without
alteration or enlargement or
any change whatsoever.
B-2
EXHIBIT B
Accredited Investor Letter
Fine Host Corporation
c/o the Trustee
Ladies and Gentlemen:
This letter is delivered by the undersigned to request a transfer of
$_____________ principal amount of the 5% Convertible Subordinated Notes due
2004 (the "Notes") of Fine Host Corporation (the "Company"). The Notes are
described in that certain Offering Memorandum (the "Offering Memorandum") dated
October 21, 1997 relating to the offering of the Notes. We acknowledge receipt
of the Offering Memorandum and acknowledge that we have read the Offering
Memorandum, have had access to such financial and other information and have
been afforded the opportunity to ask such questions of representatives of the
Company and receive answers thereto, as we deem necessary in connection with our
decision to purchase the Notes.
Upon transfer the Notes would be registered in the name of the
undersigned:
Name:________________________________________________
Address:_____________________________________________
Taxpayer ID Number:__________________________________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing for our own account or for the account of such an
institutional "accredited investor," and we are acquiring the Notes for
investment purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act and we have such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risk of our investment in the Notes and invest in or
purchase securities similar to the Notes in the normal course of our business,
and we, and any account for which we are acting, are each able to bear the
economic risk of our or its investment. We confirm that neither the Company nor
any person acting on its behalf has offered to sell the Notes by, and that we
have not been made aware of the offering of the Notes by, any form of general
solicitation or general advertising, including, but not limited to, any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio.
2. We understand that the Notes and the Common Stock issuable upon
conversion of the Notes (the Notes and such Common Stock are collectively
referred to herein as the "Restricted Securities") have not been registered
under the Securities Act, or any state securities laws, and, unless so
registered, may not be sold except as permitted in the following sentence. We
agree on our own behalf and on behalf of any investor account for which we are
purchasing Notes that such Restricted Securities are "restricted securities"
within the meaning of Rule 144 under the Securities Act and to offer, sell or
otherwise transfer such Restricted Securities prior to the date which is two
years after the date of original issue (the "Resale Restriction Termination
Date") only (a) to the Company or any of its subsidiaries, (b) so long as the
Restricted Securities are eligible for resale pursuant to Rule 144A under the
Securities Act, to a person we reasonably believe is a qualified institutional
buyer under Rule 144A under the Securities Act (a "QIB") that purchases for its
own account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (c) to an institutional
"accredited investor," within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act, that is purchasing for its own account or for the
account of an institutional "accredited investor," (d) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Securities Act, (e) in a transaction meeting the requirements of Rule
144 under the Securities Act, (f) pursuant to any other available exemption from
the registration requirements of the Securities Act, or (g) pursuant to a
registration statement that has been declared effective under the Securities
Act, subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and in compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Restricted Securities is proposed to be made pursuant to
clause (c) above prior to the Resale Restriction Termination Date, the
transferor shall deliver a letter from the transferee substantially in the form
of this letter to the Company and the trustee (the "Trustee") under the
indenture, dated as of October 27, 1997 between the Company and the Trustee
relating to the Notes, which shall provide, among other things, that the
transferee is an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring
such Restricted Securities for investment purposes and not for distribution in
violation of the Securities Act. Each purchaser acknowledges that the Company
and the Trustee reserve the right prior to any offer, sale or other transfer,
prior to the Resale Restriction Termination Date, of the Restricted Securities
pursuant to clause (c), (d) or (f) above to require the delivery of an opinion
of counsel, certifications and/or other information satisfactory to the Company
and the Trustee.
3. We understand that the Notes will be in the form of definitive
physical certificates bearing the legend set forth in clause (5) in the "Notice
to Investors" section of the Offering Memorandum.
We acknowledge that you, the Initial Purchasers and others will rely
upon our confirmations, acknowledgments and agreements set forth herein, and we
agree to notify you promptly in writing if any of our representations and
warranties herein ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF.
___________________________
By:________________________
EXHIBIT C
FORM OF CONVERSION NOTICE
TO: Fine Host Corporation
The undersigned owner of this Note hereby: (i) irrevocably exercises
the option to convert this Note, or the portion hereof below designated, for
shares of Common Stock of Fine Host Corporation in accordance with the terms of
the Indenture referred to in this Note and (ii) directs that such shares of
Common Stock deliverable upon the conversion, together with any check in payment
for fractional shares and any Note(s) 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 are to be delivered
registered in the name of a person other than the undersigned, the undersigned
will pay all transfer taxes payable with respect thereto. Any amount required to
be paid by the undersigned on account of interest accompanies this Note.
Dated:_________________________
____________________________________________
Signature
Fill in for registration of shares if to be delivered, and of Notes if
to be issued, otherwise than to and in the name of the registered holder.
____________________________________________
Social Security or other
Taxpayer Identifying Number
_______________________________
(Name)
______________________________
(Street Address)
______________________________
City, State and Zip Code)
(Please print name and address)
Principal amount to be converted
(if less than all)
$___________________________________________
