Exhibit 10.1
EXECUTION COPY
AGERE SYSTEMS INC.,
as Issuer
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THE BANK OF NEW YORK,
as Trustee
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$410,000,000 6.5% Convertible Subordinated Notes due 2009
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INDENTURE
Dated as of June 19, 2002
TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS.......................................................................................1
SECTION 1.1 Definitions................................................................................1
SECTION 1.2 Incorporation by Reference of TIA.........................................................13
SECTION 1.3 Rules of Construction.....................................................................13
ARTICLE 2 THE NOTES........................................................................................14
SECTION 2.1 Form and Dating...........................................................................14
SECTION 2.2 Execution and Authentication..............................................................15
SECTION 2.3 Registrar, Paying Agent and Conversion Agent..............................................15
SECTION 2.4 Paying Agent To Hold Money in Trust.......................................................16
SECTION 2.5 Holder Lists..............................................................................16
SECTION 2.6 Transfer and Exchange.....................................................................16
SECTION 2.7 Replacement Notes.........................................................................18
SECTION 2.8 Outstanding Notes.........................................................................18
SECTION 2.9 When Notes Owned by the Company or an Affiliate are Disregarded...........................19
SECTION 2.10 Temporary Notes...........................................................................19
SECTION 2.11 Cancellation..............................................................................20
SECTION 2.12 Defaulted Interest........................................................................20
SECTION 2.13 CUSIP Number..............................................................................20
ARTICLE 3 REDEMPTION.......................................................................................20
SECTION 3.1 Optional Redemption.......................................................................20
SECTION 3.2 Notices to Trustee........................................................................21
SECTION 3.3 Selection of Notes To Be Redeemed.........................................................21
SECTION 3.4 Notice of Redemption......................................................................22
SECTION 3.5 Effect of Notice of Redemption............................................................23
SECTION 3.6 Deposit of Redemption Price...............................................................23
SECTION 3.7 Notes Redeemed in Part....................................................................23
ARTICLE 4 COVENANTS........................................................................................23
SECTION 4.1 Payment of Notes..........................................................................23
SECTION 4.2 Periodic Reports to the Trustee...........................................................24
SECTION 4.3 Compliance Certificate....................................................................24
SECTION 4.4 Maintenance of Office or Agency...........................................................24
SECTION 4.5 Continued Existence.......................................................................25
SECTION 4.6 Repurchase Upon Fundamental Change........................................................25
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SECTION 4.7 Appointments to Fill Vacancies in Trustee's Office........................................27
SECTION 4.8 Stay, Extension and Usury Laws............................................................27
SECTION 4.9 Taxes.....................................................................................27
SECTION 4.10 Investment Company Act....................................................................27
ARTICLE 5 SUCCESSORS.......................................................................................28
SECTION 5.1 When the Company May Merge, Etc...........................................................28
SECTION 5.2 Successor Corporation Substituted.........................................................29
SECTION 5.3 Purchase Option on Fundamental Change.....................................................29
ARTICLE 6 DEFAULTS AND REMEDIES............................................................................29
SECTION 6.1 Events of Default.........................................................................29
SECTION 6.2 Acceleration..............................................................................31
SECTION 6.3 Other Remedies............................................................................31
SECTION 6.4 Waiver of Past Defaults...................................................................32
SECTION 6.5 Control by Majority.......................................................................32
SECTION 6.6 Limitation on Suits.......................................................................32
SECTION 6.7 Rights of Holders To Receive Payment......................................................33
SECTION 6.8 Collection Suit by Trustee................................................................33
SECTION 6.9 Trustee May File Proofs of Claim..........................................................33
SECTION 6.10 Priorities................................................................................34
SECTION 6.11 Undertaking for Costs.....................................................................34
ARTICLE 7 THE TRUSTEE......................................................................................34
SECTION 7.1 Duties of the Trustee.....................................................................35
SECTION 7.2 Rights of the Trustee.....................................................................36
SECTION 7.3 Individual Rights of the Trustee..........................................................37
SECTION 7.4 Trustee's Disclaimer......................................................................37
SECTION 7.5 Notice of Defaults........................................................................38
SECTION 7.6 Reports by the Trustee to Holders.........................................................38
SECTION 7.7 Compensation and Indemnity................................................................38
SECTION 7.8 Replacement of the Trustee................................................................39
SECTION 7.9 Successor Trustee by Merger, etc..........................................................40
SECTION 7.10 Eligibility, Disqualification.............................................................40
SECTION 7.11 Preferential Collection of Claims Against Company.........................................40
ARTICLE 8 SATISFACTION AND DISCHARGE OF INDENTURE..........................................................41
SECTION 8.1 Discharge of Indenture....................................................................41
SECTION 8.2 Deposited Monies to be Held in Trust by Trustee...........................................41
SECTION 8.3 Paying Agent to Repay Monies Held.........................................................41
SECTION 8.4 Return of Unclaimed Monies................................................................42
SECTION 8.5 Reinstatement.............................................................................42
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ARTICLE 9 AMENDMENTS.......................................................................................42
SECTION 9.1 Without the Consent of Holders............................................................42
SECTION 9.2 With the Consent of Holders...............................................................43
SECTION 9.3 Compliance with the Trust Indenture Act...................................................44
SECTION 9.4 Revocation and Effect of Consents.........................................................44
SECTION 9.5 Notation on or Exchange of Notes..........................................................45
SECTION 9.6 Trustee Protected.........................................................................45
ARTICLE 10 GENERAL PROVISIONS..............................................................................46
SECTION 10.1 TIA Controls..............................................................................46
SECTION 10.2 Notices...................................................................................46
SECTION 10.3 Communication by Holders With Other Holders...............................................46
SECTION 10.4 Certificate and Opinion as to Conditions Precedent........................................47
SECTION 10.5 Statements Required in Certificate or Opinion.............................................47
SECTION 10.6 Rules by Trustee and Agents...............................................................48
SECTION 10.7 Legal Holidays............................................................................48
SECTION 10.8 No Recourse Against Others................................................................48
SECTION 10.9 Counterparts..............................................................................48
SECTION 10.10 Other Provisions..........................................................................48
SECTION 10.11 GOVERNING LAW.............................................................................49
SECTION 10.12 No Adverse Interpretation of Other Agreements.............................................49
SECTION 10.13 Successors................................................................................49
SECTION 10.14 Severability..............................................................................49
SECTION 10.15 Table of Contents, Headings, etc..........................................................49
ARTICLE 11 SUBORDINATION...................................................................................50
SECTION 11.1 Agreement to Subordinate..................................................................50
SECTION 11.2 Liquidation; Dissolution; Bankruptcy......................................................50
SECTION 11.3 Default on Senior Indebtedness and/or Designated Senior Indebtedness......................50
SECTION 11.4 Acceleration of Notes.....................................................................51
SECTION 11.5 When Distribution Must Be Paid Over.......................................................52
SECTION 11.6 Notice by Company.........................................................................52
SECTION 11.7 Subrogation...............................................................................52
SECTION 11.8 Relative Rights...........................................................................53
SECTION 11.9 Subordination May Not Be Impaired by Company..............................................53
SECTION 11.10 Distribution or Notice to Representative..................................................53
SECTION 11.11 Rights of Trustee and Paying Agent........................................................53
SECTION 11.12 Authorization to Effect Subordination.....................................................54
SECTION 11.13 Article Applicable to Paying Agents.......................................................54
SECTION 11.14 Senior Indebtedness Entitled to Rely......................................................54
SECTION 11.15 Permitted Payments........................................................................54
SECTION 11.16 No Waiver of Subordinated Provisions......................................................55
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ARTICLE 12 CONVERSION OF NOTES.............................................................................55
SECTION 12.1 Right to Convert..........................................................................55
SECTION 12.2 Exercise of Conversion Privilege; Issuance of Shares of Class A Common Stock on
Conversion; No Adjustment for Interest or Dividends...................................56
SECTION 12.3 Cash Payments in Lieu of Fractional Shares................................................57
SECTION 12.4 Conversion Price..........................................................................57
SECTION 12.5 Adjustment of Conversion Price............................................................57
SECTION 12.6 Effect of Reclassification, Consolidation, Merger or Sale.................................65
SECTION 12.7 Taxes on Shares Issued....................................................................67
SECTION 12.8 Reservation of Shares; Shares to Be Fully Paid; Listing of Class A Common Stock...........67
SECTION 12.9 Responsibility of Trustee.................................................................68
SECTION 12.10 Notice to Holders Prior to Certain Actions................................................68
EXHIBIT A: Form of Note
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CROSS-REFERENCE TABLE*
Trust Indenture Indenture
Act Section Section
--------------- ---------------
310(a)(1)............................................................................. 7.10
(a)(2).......................................................................... 7.11
(a)(3).......................................................................... n/a
(a)(4).......................................................................... n/a
(a)(5).......................................................................... n/a
(b)............................................................................. 7.8, 7.10, 10.2
(c)............................................................................. n/a
311(a)................................................................................ 7.11
(b)............................................................................. 7.11
(c)............................................................................. n/a
312(a)................................................................................ 2.5
(b)............................................................................. 10.3
(c)............................................................................. 10.3
313(a)................................................................................ 7.6
(b)(1).......................................................................... n/a
(b)(2).......................................................................... 7.6
(c)............................................................................. 7.6, 10.2
(d)............................................................................. 7.6
314(a)................................................................................ 4.2, 10.2
(b)............................................................................. n/a
(c)(1).......................................................................... 10.4
(c)(2).......................................................................... 10.4
(c)(3).......................................................................... n/a
(d)............................................................................. n/a
(e)............................................................................. 10.5
(f)............................................................................. n/a
315(a)................................................................................ 7.1(b)
(b)............................................................................. 7.5, 10.2
(c)............................................................................. 7.1(a)
(d)............................................................................. 7.1(c)
(e)............................................................................. 6.11
316(a)(last sentence)................................................................. 2.9
(a)(1)(A)....................................................................... 6.5
(a)(1)(B)....................................................................... 6.4
(a)(2).......................................................................... n/a
(b)............................................................................. 6.2
(c)............................................................................. 9.4
317(a)(1)............................................................................. 6.8
(a)(2).......................................................................... 6.9
(b)............................................................................. 2.4
318(a)................................................................................ 10.1
(b)............................................................................. n/a
(c)............................................................................. 10.1
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"n/a" means not applicable.
* This Cross-Reference Table shall not, for any purpose, be deemed to be a part
of the Indenture.
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THIS INDENTURE, dated as of June 19, 2002, is by and between Agere Systems
Inc., a Delaware corporation (the "Company"), and The Bank of New York, a New
York banking corporation, as trustee (the "Trustee"). The Company has duly
authorized the creation of its 6.5% Convertible Subordinated Notes due 2009 (the
"Notes"), and to provide therefor the Company and the Trustee have duly
authorized the execution and delivery of this Indenture. Each party agrees as
follows for the benefit of the other party and for the equal and ratable benefit
of the holders from time to time of the Notes:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions.
"Accounts" has the meaning given to such term in the Uniform Commercial
Code as in effect in the State of New York; and, with respect to the Company and
its Subsidiaries, all such Accounts of such persons, whether now existing or
existing in the future, including, without limitation:
(1) all accounts receivable of such Person, including all accounts created
by or arising from all of such person's Intellectual Property
licensing arrangements or sales of goods or rendition of services made
under any of its trade names, or through any of its divisions;
(2) all unpaid rights of such person (including rescission, replevin,
reclamation and stopping in transit) relating to the foregoing or
arising therefrom;
(3) all rights to any goods represented by any of the foregoing, including
returned or repossessed goods;
(4) all reserves and credit balances held by such person with respect to
any such accounts receivable or any obligors thereon;
(5) all letters of credit, guarantees or collateral for any of the
foregoing;
(6) all rights to any Intellectual Property related to any of the
foregoing clauses (1) through (5); and
(7) all insurance policies or other rights related to any of the
foregoing.
"Affiliate" means, when used with reference to any person, any other person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such person. For the purposes of this definition, "control"
when used with respect to any specified person means the power to direct or
cause the direction of management or policies of the referent person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise. The terms "controlling" and "controlled" have meanings correlative
of the foregoing.
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"Agent" means any Registrar, Paying Agent, Conversion Agent or
co-registrar.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Security or beneficial interest therein, the rules and
procedures of the Depositary for such Global Security to the extent applicable
to such transaction and as in effect from time to time.
"Bank Indebtedness" means any and all amounts, whether outstanding on the
Issue Date or thereafter Incurred, payable by the Company under or in respect of
the Existing Credit Facility and any related notes, collateral documents,
letters of credit and guarantees and any Interest Rate Agreement entered into in
connection with the Existing Credit Facility, including principal, premium, if
any, interest, fees, charges, expenses, reimbursement obligations, guarantees
and all other amounts payable thereunder or in respect thereof.
"Bankruptcy Law" has the meaning ascribed to it in Section 6.1.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee of the Board of Directors.
"business day" has the meaning ascribed to it in Section 10.7.
"Capital Stock" of any person means any and all shares, interests, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such person, but excluding any debt
securities convertible into such equity.
"Change of Control" means the occurrence of one or more of the following
events:
(1) any "person" or "group" of related persons (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that such person or group shall be deemed to have
"beneficial ownership" of all shares that any such person or group has
the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than
35% of the total voting power of the Company's Voting Stock (or the
Company's successor by merger, consolidation or purchase of all or
substantially all of its assets);
(2) the consolidation or merger of the Company with or into another person
or the merger of another person with or into the Company, and the
securities of the Company that are outstanding immediately prior to
such transaction and represent 100% of the aggregate voting power of
the Company's Voting Stock are changed into or exchanged for cash,
securities or property, unless pursuant to such transaction such
securities are changed into or exchanged for, in addition to any other
consideration, securities of the surviving person that represent
immediately after such transaction, at least a majority of the
aggregate voting power of the Voting Stock of the surviving person;
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(3) a majority of the members of the Board of Directors are not Continuing
Directors;
(4) the sale, transfer or other disposition (other than by way of merger
or consolidation), in one or a series of related transactions, of all
or substantially all of the Company's assets determined on a
consolidated basis to another person, unless the transferee person
becomes the obligor in respect of the Notes and is a Subsidiary of the
transferor of such assets; or
(5) the adoption by the stockholders of the Company of a plan or proposal
for the liquidation or dissolution of the Company.
However, a change of control will not be deemed to have occurred if:
(1) with respect to clauses (1) and (2) above, at least 90% of the
aggregate fair market value (as determined by the Board of Directors)
of the property and securities received by holders of the Class A
Common Stock in respect of such Common Stock in such transaction,
other than cash payments for fractional shares, consists of shares of
voting common stock of the surviving person (or its parent) that are,
or upon issuance will be, traded on a United States national
securities exchange or approved for trading on an established
automated over-the-counter trading market in the United States, and
the Notes become convertible into such consideration; or
(2) with respect to clauses (1), (2), (3) and (4) above, the Daily Market
Price per share of Class A Common Stock for any five Trading Days
within the period of 10 consecutive Trading Days ending immediately
after the later of the Change of Control or the public announcement of
the Change of Control (in the case of a Change of Control under clause
(2) above) shall equal or exceed 105% of the Conversion Price of the
Notes in effect on the date of the Change of Control or the public
announcement of the Change of Control, as applicable; provided,
however, that if the Fundamental Change results in the
reclassification, conversion or exchange of outstanding shares of
Class A Common Stock, such 10 consecutive Trading Day period shall be
measured as ending immediately before the Fundamental Change.
"Class B Common Stock" has the meaning ascribed to it in Section 12.5(g).
"Clearstream" means Clearstream Banking, societe anonyme.
"closing price" has the meaning ascribed to it in Section 12.5(g).
"Commission" means the Securities and Exchange Commission.
"Common Stock" means any shares of any common stock of any class of the
Company which has no preference in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution or winding up
of the Company and which is not subject to redemption by the Company. Subject to
the provisions of Section 12.6, however, shares issuable on conversion of Notes
shall include only shares of the class designated as Class A Common Stock (the
"Class A Common Stock") at the date of this Indenture or shares of any
3
class or classes resulting from any reclassification or reclassifications
thereof and which have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which are not subject to redemption by the
Company; provided that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of
all such classes resulting from all such reclassifications.
"Company" means the party named as such above until a successor replaces it
in accordance with Article 5 and thereafter means the successor. References to
the Company shall not include any subsidiary.
"Company Order" means a written order signed in the name of the Company by
an Officer and delivered to the Trustee.
"Continuing Directors" means, as of any date of determination, any member
of the Board of Directors of the Company who: (1) was a member of such Board on
the Issue Date; or (2) was nominated for election or elected to such Board with
the approval of a majority of such Board still in office who were either members
of such Board on the Issue Date or whose such nomination or election was so
approved.
"Conversion Agent" has the meaning ascribed to it in Section 2.3.
"Conversion Date" has the meaning ascribed to it in Section 12.2.
"Conversion Price" shall have the meaning set forth in Section 12.4 hereof.
"Corporate Trust Office" means the principal office of the Trustee at which
at any time its corporate trust business shall be administered, which office at
the date hereof is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust Department, or such other address as the Trustee may
designate from time to time by notice to the holders of the Notes and the
Company, or the principal corporate trust office of any successor Trustee (or
such other address as such successor Trustee may designate from time to time by
notice to the holders of the Notes and the Company).
"Currency Agreement" means in respect of a person any foreign exchange
contract, currency swap agreement or other similar agreement as to which such
person is a party or a beneficiary.
"Current Market Price" has the meaning ascribed to it in Section 12.5(g).
"Custodian" has the meaning ascribed to it in Section 6.1
"Daily Market Price" means the price of a share of Class A Common Stock on
the relevant date, determined on the basis of the last reported sale price
regular way of a share of Class A Common Stock as quoted on the New York Stock
Exchange, or if the Class A Common Stock is not then quoted on the New York
Stock Exchange, as reported on the principal national securities exchange upon
which the Class A Common Stock is listed.
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"Default" means any event that is, or after notice or passage of time, or
both, would be, an Event of Default.
"Depositary" means, with respect to any Global Securities, a clearing
agency that is registered as such under the Exchange Act and is designated by
the Company to act as Depositary for such Global Securities (or any successor
securities clearing agency so registered), which shall initially be DTC.
"Designated Senior Indebtedness" means (1) the Bank Indebtedness (to the
extent such Bank Indebtedness constitutes Senior Indebtedness) and (2) any other
Senior Indebtedness which, at the date of determination, has an aggregate
principal amount outstanding of, or under which, at the date of determination,
the holders thereof are committed to lend up to, exceeding $100.0 million and is
specifically designated in the instrument evidencing or governing such Senior
Indebtedness as "Designated Senior Indebtedness" for purposes of this Indenture.
"Designated Senior Lender" means JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank) as administrative agent under the Credit Facility and any
successor administrative agent under the Existing Credit Facility.
"DTC" means The Depository Trust Company, a New York corporation.
"Euroclear" means Euroclear Bank S.A./N.V.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Event of Default" has the meaning ascribed to it in Section 6.1.
"Excluded Subsidiary" means the following Non-Wholly Owned Subsidiaries:
Silicon Manufacturing Partners Pte Ltd., LD Fiber Optics LLC, FiNet Technologies
and Lucent Technologies Semiconductor Marketing Japan.
"Existing Credit Facility" means the $1,500,000,000 Amended and Restated
Revolving Credit and Term Loan Facility Agreement, dated as of February 22,
2001, as amended and restated as of October 4, 2001, among the Company, Xxxxxxx
Xxxxx Xxxxxx Inc., as syndication agent, and JPMorgan Chase Bank (formerly known
as The Chase Manhattan Bank), as administrative agent and the other lenders
parties thereto, including any related notes, collateral documents, letters of
credit, guarantees, instruments, agreements and Interest Rate Agreements,
executed in connection therewith, as amended, restated, supplemented, waived,
extended, renewed, replaced (in whole or in part, whether or not upon
termination, and whether with the original lenders or agents or otherwise),
refinanced (in whole or in part), restructured, repaid, refunded or otherwise
modified from time to time.
"Expiration Time" has the meaning ascribed to it in Section 12.5(f).
"fair market value" has the meaning ascribed to it in Section 12.5(g).
5
"Fundamental Change" means the occurrence of a Change of Control or a
Termination of Trading.
"Fundamental Change Date" has the meaning ascribed to it in Section 4.6.
"Fundamental Change Offer" has the meaning ascribed to it in Section 4.6.
"Fundamental Change Payment" has the meaning ascribed to it in Section 4.6.
"Fundamental Change Payment Date" has the meaning ascribed to it in Section
4.6.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect as of the Issue Date, including those set forth in:
(1) the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants;
(2) statements and pronouncements of the Financial Accounting Standards
Board;
(3) such other statements by such other entity as approved by a
significant segment of the accounting profession; and
(4) the rules and regulations of the Commission governing the inclusion of
financial statements (including pro forma financial statements) in
periodic reports required to be filed pursuant to Section 13 of the
Exchange Act, including opinions and pronouncements in staff
accounting bulletins and similar written statements from the
accounting staff of the Commission.
All ratios and computations based on GAAP contained in this Indenture will be
computed in conformity with GAAP.
"Global Security" has the meaning ascribed to it in Section 2.1(a).
"Global Securities Legend" means the legend labeled as such and that is set
forth in Exhibits A hereto.
"Hedging Obligations" of any Person means the obligations of such Person
pursuant to any Interest Rate Agreement or Currency Agreement.
"Incur" means issue, create, assume, incur or otherwise become liable for;
provided, however, that any Indebtedness or Capital Stock of a Person existing
at the time such Person becomes a Subsidiary (whether by merger, consolidation,
acquisition or otherwise) will be deemed to be Incurred by such Subsidiary at
the time it becomes a Subsidiary; and the terms "Incurred" and "Incurrence" have
meanings correlative to the foregoing.
"Indebtedness" means, with respect to any person on any date of
determination (without duplication):
6
(1) the principal of and premium (to the extent that such premium has
become due and payable), if any, in respect of Indebtedness of such
person for borrowed money;
(2) the principal of and premium (to the extent that such premium has
become due and payable), if any, in respect of obligations of such
person evidenced by bonds, debentures, notes or other similar
instruments;
(3) the principal component of all obligations of such person or the
reimbursement of any obligor in respect of letters of credit, bankers'
acceptances or other similar instruments (except to the extent such
reimbursement obligation relates to letters of credit securing
obligations (other than those referred to in clauses (1) or (2) above)
entered into in the ordinary course of business and is not drawn or,
if and to the extent drawn, such obligation is satisfied within 30
days of drawing);
(4) the obligations under a lease required to be capitalized on the
balance sheet of the lessee under GAAP or under any lease or related
document (including a purchase agreement) that provides that such
person is contractually obligated to purchase or cause a third party
to purchase and thereby guarantee a minimum residual value of the
lease property to the lessor and such person's obligations under such
lease or related document to purchase or cause a third party to
purchase such leased property;
(5) the principal component of all obligations of such person to pay the
deferred and unpaid purchase price of property (except trade
payables), which purchase price is due more than six months after the
date of placing such property in service or taking delivery and title
thereto;
(6) the principal component of all Indebtedness of other persons secured
by a lien on any asset of such person, whether or not such
Indebtedness is assumed by such person; provided, however, that the
amount of such Indebtedness will be the lesser of (a) the fair market
value of such asset at such date of determination and (b) the amount
of such Indebtedness of such other persons;
(7) to the extent not otherwise included in this definition, net
obligations of such person under Currency Agreements, Interest Rate
Agreements, cap, floor and collar agreements, spot and forward
contracts and similar agreements and arrangements (the amount of any
such obligations to be equal at any time to the termination value of
such agreement or arrangement giving rise to such obligation that
would be payable by such person at such time);
(8) the principal component of Indebtedness of other persons to the extent
guaranteed by such person; and
(9) any and all deferrals, renewals, extensions, refinancings and
refundings of, or amendments, modifications or supplements to, any of
the foregoing.
"Indemnitees" has the meaning ascribed to it in Section 7.7.
7
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Intellectual Property" means collectively, all rights, priorities and
privileges relating to intellectual property, whether arising under United
States, multinational or foreign laws or otherwise, and all rights to xxx at law
or in equity for any infringement or impairment thereof, including the right to
receive all proceeds and damages therefrom.
"Interest Payment Date" means June 15 and December 15 of each year.
"Interest Rate Agreement" means with respect to any person any interest
rate protection agreement, interest rate future agreement, interest rate option
agreement, interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement, interest rate hedge agreement or other similar agreement
or arrangement as to which such person is party or a beneficiary.
"Investment" means, with respect to any person, all investments by such
person in other persons (including Affiliates) in the form of any direct or
indirect advance, loan (other than advances to customers in the ordinary course
of business) or other extension of credit (including by way of guarantee or
similar arrangement, but excluding any debt or extension of credit represented
by a bank deposit other than a time deposit) or capital contribution to (by
means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase or
acquisition of Capital Stock, Indebtedness or other similar instruments issued
by, such person and all other items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP; provided, that
none of the following will be deemed to be an Investment:
(1) Hedging Obligations entered into in the ordinary course of business
and in compliance with this Indenture;
(2) endorsements of negotiable instruments and documents in the ordinary
course of business; and
(3) an acquisition of assets, Capital Stock or other securities by the
Company or a Subsidiary for consideration to the extent such
consideration consists of Common Stock of the Company.
"Investment Company Act" means Investment Company Act of 1940, as amended,
and the rules and regulations promulgated thereunder.
"Issue Date" means the date on which Notes are first issued and
authenticated under this Indenture.
"Legal Holiday" has the meaning ascribed to it in Section 10.7.
"Losses" has the meaning ascribed to it in Section 7.7.
"Maturity Date" means December 15, 2009.
8
"non-electing share" has the meaning ascribed to it in Section 12.6.
"Non-Wholly Owned Subsidiary" means any Subsidiary of the Company that is
not a Wholly Owned Subsidiary.
"Notes" has the meaning specified in the first recital of this Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means the Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and either an Assistant Treasurer or an Assistant Secretary of the
Company.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company.
"Paying Agent" has the meaning ascribed to it in Section 2.3.
A "person" means any individual, corporation, partnership, joint venture,
trust, estate, unincorporated organization, limited liability company or
government or any agency or political subdivision thereof.
"Purchased Shares" has the meaning ascribed to it in Section 12.5(f).
"Purchase Money Note" means a promissory note of a Securitization Entity
evidencing a line of credit or other extension of credit (including deferred
purchase price), which may be irrevocable, from the Company or any Subsidiary in
connection with a Qualified Securitization Transaction to a Securitization
Entity, which note is repayable from cash available to the Securitization
Entity, other than amounts required to be established as reserves pursuant to
agreements, amounts paid to investors in respect of interest, principal and
other amounts owing to such investors and amounts owing to such investors and
amounts paid in connection with the purchase of newly generated Receivables or
Intellectual Property.
"Qualified Securitization Transaction" means any transaction or series of
transactions that may be entered into by the Company or any of its Subsidiaries
pursuant to which the Company or any of its Subsidiaries may sell, convey or
otherwise transfer to (1) a Securitization Entity (in the case of a transfer by
the Company or any of its Subsidiaries) and (2) any other Person (in the case of
a transfer by a Securitization Entity), or may grant a security interest in, any
Receivables or Intellectual Property (whether now existing or arising in the
future) of the Company or any of its Subsidiaries, and any assets related
thereto including, without limitation, all collateral securing such Receivables
or Intellectual Property, all contracts and all guarantees or other obligations
in respect of such Receivables or Intellectual Property, the proceeds of such
Receivables or Intellectual Property and other assets which are customarily
transferred, or in
9
respect of which security interests are customarily granted in connection with
asset securitization involving Receivables or Intellectual Property.
"Receivables" means all Accounts and accounts receivable of the Company or
any of its Subsidiaries (including any thereof constituting or evidenced by
chattel paper, instruments or general intangibles), and all proceeds thereof and
rights (contractual and other) and collateral related thereto.
"Record Date" has the meaning ascribed to it in Section 12.5(g).
"Redemption Date" when used with respect to any of the Notes to be
redeemed, means the date fixed by the Company for such redemption pursuant to
Article 3 of this Indenture and the Notes.
"Redemption Price" when used with respect to any of the Notes to be
redeemed, means the price fixed for such redemption pursuant to Article 3 of
this Indenture and the Notes.
"Register" has the meaning ascribed to it in Section 2.3.
"Registrar" has the meaning ascribed to it in Section 2.3.
"Regular Record Date" means the June 1 or December 1 immediately preceding
each Interest Payment Date.
"Representative" means any trustee, agent or representative, if any, of an
issue of Indebtedness; provided that when used in connection with the Existing
Credit Facility, the term "Representative" shall refer to the Designated Senior
Lender.
"Securities" has the meaning ascribed to it in Section 12.5(d).
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Securitization Entity" means (a) Agere Systems Receivables Funding LLC and
(b) any other Wholly Owned Subsidiary of the Company (or another person in which
the Company or any Subsidiary makes an Investment and to which the Company or
any Subsidiary transfers Receivables or Intellectual Property and related
assets) which engages in no activities other than in connection with the
acquisition and financing of Receivables or Intellectual Property and activities
related thereto and which is designated by the Board of Directors of the Company
(as provided below) as a Securitization Entity:
(1) no portion of the Indebtedness or any other obligations (contingent or
otherwise) of which:
(a) is guaranteed by the Company or any Subsidiary (excluding
guarantees of Obligations (other than the principal of, and
interest on, Indebtedness) pursuant to Standard Securitization
Undertakings);
10
(b) is recourse to or obligates the Company or any Subsidiary in any
way other than pursuant to Standard Securitization Undertakings;
or
(c) subjects any property or asset of the Company or any Subsidiary,
directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to Standard
Securitization Undertakings and Liens supporting such Standard
Securitization Undertakings;
(2) with which neither the Company nor any Subsidiary has any material
contract, agreement, arrangement or understanding (except in
connection with a Purchase Money Note or Qualified Securitization
Transaction) other than on terms no less favorable to the Company or
such Subsidiary than those that might be obtained at the time from
Persons that are not Affiliates of the Company, other than fees
payable in the ordinary course of business in connection with
servicing accounts receivable; and
(3) to which neither the Company nor any Subsidiary has any obligation to
maintain or preserve such entity's financial condition or cause such
entity to achieve certain levels of operating results.
Any such designation (other than with respect to Agere Systems Receivables
Funding LLC) by the Board of Directors of the Company shall be evidenced to the
Trustee by filing with the Trustee a certified copy of the resolution of the
Board of Directors of the Company giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing conditions.
"Senior Indebtedness" means, with respect to any person, whether
outstanding on the Issue Date or thereafter incurred, all Indebtedness of such
person, including accrued and unpaid interest (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization relating to
such person at the rate specified in the documentation with respect thereto
whether or not a claim for post filing interest is allowed in such proceeding)
and fees relating thereto; provided, however, that Senior Indebtedness will not
include:
(1) any Indebtedness evidenced by the Notes;
(2) any obligation of such person to any subsidiary;
(3) any liability for federal, state, foreign, local or other taxes owed
or owing by such person;
(4) any accounts payable or other liability to trade creditors arising in
the ordinary course of business; or
(5) any Indebtedness of such person that is expressly pari passu or
subordinate or junior in right of payment to the Notes.
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"Significant Subsidiary" means any Subsidiary that would be a "Significant
Subsidiary" of the Company within the meaning of Rule 1-02 under Regulation S-X
promulgated by the Commission.
"Standard Securitization Undertakings" means representations, warranties,
covenants and indemnities entered into by the Company or any Subsidiary which
are reasonably customary in securitization transactions involving Receivables
and/or Intellectual Property, including in connection with any servicing
obligations assumed by the Company or any Subsidiary in respect of such
Receivables or Intellectual Property.
"Subsidiary" of any person means any corporation, association, partnership,
joint venture, limited liability company or other business entity of which more
than 50% of the total voting power of shares of Voting Stock or other interests
(including partnership and joint venture interests) entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by (1) such person, (2) such person and one or more Subsidiaries of
such person or (3) one or more Subsidiaries of such Person. Unless otherwise
specified herein, each reference to a Subsidiary will refer to a Subsidiary of
the Company and will exclude Excluded Subsidiaries.
"Termination of Trading" will be deemed to have occurred if the Class A
Common Stock (or other shares of common stock into which the Notes are then
convertible) are neither listed for trading on the New York Stock Exchange nor
approved for trading on the Nasdaq National Market.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code 'SS''SS' 77aaa-
77bbbb) as in effect on the date of execution of this Indenture, except as
provided in Sections 9.3 and 12.6.
"Trading Day" shall mean a day during which trading in the Common Stock
generally occurs on the New York Stock Exchange or, if the Common Stock is not
listed on the New York Stock Exchange, on the principal other national or
regional securities exchange on which the Common Stock is then listed or, if the
Common Stock is not listed on a national or regional securities exchange, on the
National Association of Notes Dealers Automated Quotation System or, if the
Common Stock is not quoted on the National Association of Securities Dealers
Automated Quotation System, on the principal other market on which the Common
Stock is then traded.
"Trigger Event" has the meaning ascribed to it in Section 12.5(d).
"Trustee" means the party named as such above until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter
means the successor.
"Trust Officer" means, when used with respect to the Trustee, any officer
within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of an familiarity with the particular subject
and who shall have direct responsibility for the administration of this
Indenture.
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"Underwriting Agreement" means the Underwriting Agreement dated as of June
13, 2002 among the Company and X.X. Xxxxxx Securities Inc., Xxxxxxx Xxxxx Barney
Inc., Credit Suisse First Boston Corporation, Deutsche Bank Securities Inc., XX
Xxxxx Securities Corporation, ABN AMRO Rothschild LLC and BNY Capital Markets,
Inc.
"Voting Stock" of a person means all classes of Capital Stock or other
interests of such person then outstanding and normally entitled (without regard
to any contingency) to vote in the election of directors, managers or trustees
thereof.
"Wholly Owned Subsidiary" means a Subsidiary, all of the Capital Stock of
which (other than directors' qualifying shares) is owned by the Company or one
or more other Wholly Owned Subsidiaries.
SECTION 1.2 Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the Commission;
"indenture securities" means the Notes;
"indenture security holder" means a holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes means the Company or any other obligor on the
Notes.
All other terms in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by Commission rule under the TIA
have the meanings so assigned to them.
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 in the plural include
the singular; and
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(5) the male, female and neuter genders include one another.
ARTICLE 2
THE NOTES
SECTION 2.1 Form and Dating.
(a) Global Securities.
The Notes shall be issued in the form of one or more permanent global
securities in definitive, fully registered form without interest coupons with
the Global Securities Legend set forth in Exhibit A hereto (each, a "Global
Security"). Any Global Security shall be deposited on behalf of the purchasers
of the Notes represented thereby with the Trustee, as custodian for the
Depositary, and registered in the name of the Depositary or a nominee of the
Depositary for the accounts of participants in the Depositary duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of a Global Security may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the
Depositary or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a Global
Security deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with this
Section 2.1(b) and the Company Order, authenticate and deliver initially one or
more Global Securities that (i) shall be registered in the name of Cede & Co. or
other nominee of such Depositary and (ii) shall be delivered by the Trustee to
such Depositary or pursuant to such Depositary's instructions or held by the
Trustee as custodian for the Depositary pursuant to a FAST Balance Certificate
Agreement between the Depositary and the Trustee.
Members of, or participants in, the Depositary ("Agent Members") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by the Depositary or by the Trustee as the custodian of the Depositary or
under such Global Security, and the Depositary may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing contained herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as between
the Depositary and its Agent Members, the operation of customary practices of
such Depositary governing the exercise of the rights of a holder of a beneficial
interest in any Global Security.
The provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "Management
Regulations and Instructions to Participants" of Clearstream shall be applicable
to interests in any Global Securities that are held by participants through
Euroclear or Clearstream. The Trustee shall have no obligation to notify holders
of any such procedures or to monitor or enforce compliance with the same.
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(c) Physical Securities. Except as provided in Section 2.10, owners of
beneficial interests in Global Securities will not be entitled to receive
physical delivery of certificated Notes in registered form without interest
coupons.
SECTION 2.2 Execution and Authentication.
One Officer shall execute the Notes for the Company by manual or facsimile
signature. If an Officer whose signature is on a Note no longer holds that
office at the time the Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
Upon a Company Order, the Trustee shall authenticate Notes for original
issue in an aggregate principal amount of $410,000,000 (or $450,812,000 if the
over-allotment option set forth in Section 2(b) of the Underwriting Agreement is
exercised in full). The aggregate principal amount of Notes outstanding at any
time may not exceed such amounts except as provided in Section 2.7.
The Notes shall be issuable only in registered form without coupons and
only in denominations of $1,000 or integral multiples thereof.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes. 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 right as an Agent to deal with the Company or an Affiliate of the Company.
SECTION 2.3 Registrar, Paying Agent and Conversion Agent.
The Company shall maintain or cause to be maintained in such locations as
it shall determine, which may be the Corporate Trust Office, an office or
agency:
(i) where Notes may be presented for registration of transfer or for
exchange ("Registrar");
(ii) where Notes may be presented for payment ("Paying Agent");
(iii) an office or agency where Notes may be presented for conversion (the
"Conversion Agent"); and
(iv) where notices and demands to or upon the Company in respect of Notes
of and this Indenture may be served by the holders of the Notes. The
Registrar of Notes shall keep a register ("Register") of Notes and of
their registration of transfer and exchange.
The Company may appoint one or more co-registrars, one or more additional paying
agents and one or more additional conversion agents. The term "Paying Agent"
includes any additional
15
paying agent, and the term "Conversion Agent" includes any additional Conversion
Agent. The Company may change any Paying Agent, Registrar, Conversion Agent or
co-registrar without prior notice. The Company shall notify the Trustee of the
name and address of any Agent not a party to this Indenture and shall enter into
an appropriate agency agreement with any Registrar, Paying Agent, Conversion
Agent or co-registrar not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company or any of its subsidiaries may act as Paying Agent, Registrar,
Conversion Agent or co-registrar, except that for purposes of Article 8 and
Section 4.6 hereof, neither the Company nor any of its subsidiaries shall act as
Paying Agent. If the Company fails to appoint or maintain another entity as
Registrar, or Paying Agent or Conversion Agent, the Trustee shall act as such,
and the Trustee shall initially act as such.
SECTION 2.4 Paying Agent To Hold Money in Trust.
The Company shall require each Paying Agent (other than the Trustee, who
hereby so agrees), to agree in writing that the Paying Agent will hold in trust
for the benefit of holders of the Notes or the Trustee all money held by the
Paying Agent for the payment of principal, premium, if any, or interest on the
Notes or Fundamental Change Payment or Redemption Price with respect to the
Notes, and will notify the Trustee of any default by the Company in respect of
making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or a subsidiary of the Company) shall have no further liability for the
money. If the Company or a subsidiary of the Company acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the holders
of the Notes all money held by it as Paying Agent. In the absence of a written
request from the Company to return unclaimed funds to the Company, the Trustee
shall from time to time deliver all unclaimed funds held by it in any capacity
hereunder to or as directed by applicable escheat authorities, as required by
applicable law. Any unclaimed funds held by the Trustee in any capacity
hereunder pursuant to this Section 2.4 shall be held uninvested and without any
liability for interest.
SECTION 2.5 Holder 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 of Notes and shall otherwise comply with TIA 'SS' 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the Trustee at least
seven business days before each Interest Payment Date, and as the Trustee may
request in writing within fifteen days after receipt by the Company of any such
request (or such lesser time as the Trustee may reasonably request in order to
enable it to timely provide any notice to be provided by it hereunder), a list
in such form and as of such date as the Trustee may reasonably require of the
names and addresses of holders of Notes.
SECTION 2.6 Transfer and Exchange.
(a) When Notes are presented to the Registrar or a co-registrar with a
request to register a transfer or to exchange them for an equal principal amount
of Notes for other denominations, the Registrar shall register the transfer or
make the exchange if its requirements
16
for such transactions are met. To permit registrations of transfers and
exchanges, the Company shall issue, and the Trustee shall authenticate, Notes at
the Registrar's request, bearing registration numbers not contemporaneously
outstanding. No service charge shall be made to a holder for any registration of
transfer or exchange (except as otherwise expressly permitted herein), but the
Company and the Registrar may require payment of a sum sufficient to cover any
transfer tax or other governmental charge payable upon exchanges pursuant to
Sections 2.7, 9.5 or 12.2 hereof.
The Company or the Registrar shall not be required to:
(1) issue, register the transfer of or exchange Notes during a period
beginning at the opening of business fifteen (15) days before the day
of any selection of Notes for (x) redemption under Section 3.3 or (y)
repurchase under Section 4.6 and ending at the close of business on
the day of selection;
(2) register the transfer or exchange of any Note so selected for
redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part; or
(3) register the transfer of any Notes surrendered for repurchase pursuant
to Section 4.6.
All Notes issued upon any registration of transfer or exchange of Notes in
accordance with this Indenture shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this Indenture
as the Notes surrendered upon such registration of transfer or exchange.
(b) Notwithstanding any provision to the contrary contained herein, so long
as a Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, or of any
beneficial interest therein, shall only be made in accordance with Sections
2.1(b) and 2.10.
Except for transfers or exchanges made in accordance with Section 2.10,
transfers of a Global Security shall be limited to transfers of such Global
Security in whole, but not in part, to nominees of the Depositary or to a
successor of the Depositary or such successor's nominee.
(c) Neither the Trustee nor any Agent shall have any responsibility for any
actions taken or not taken by the Depositary.
(d) The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Notes (including any transfers between or among the Depositary's
participants or beneficial owners of interests in any Global Security) other
than to require delivery of such certificates and other documentation as is
expressly required by, and to do so if and when expressly required by, the terms
of this Indenture and to examine the same to determine substantial compliance as
to form with the express requirements hereof.
17
SECTION 2.7 Replacement Notes.
If the holder of a Note claims that its Note has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Note if the Trustee's and the Company's requirements are met. If
required by the Trustee or the Company as a condition of receiving a replacement
Note, the holder of a Note must provide a certificate of loss and an indemnity
and/or an indemnity bond sufficient, in the judgment of both the Company and the
Trustee, to fully protect the Company, the Trustee, any Agent and any
authenticating agent from any loss, liability, cost or expense which any of them
may suffer or incur if the Note is replaced. The Company and the Trustee may
charge the relevant holder for their expenses in replacing any Note.
The Trustee or any authenticating agent may authenticate any such
substituted Note and deliver the same upon the receipt of such security or
indemnity as the Trustee, the Company and, if applicable, such authenticating
agent may require. Upon the issuance of any substituted Note, the Company and
the Trustee may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Note, which has matured or is about to
mature, or has been called for redemption pursuant to Article 3, submitted for
repurchase pursuant to Section 4.6 or is about to be converted into shares of
Class A Common Stock pursuant to Article 12, shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Note, pay or authorize the payment of or convert or authorize the conversion of
the same (without surrender thereof except in the case of a mutilated Note), as
the case may be, if the applicant for such payment or conversion shall furnish
to the Company, to the Trustee and, if applicable, to the authenticating agent
such security or indemnity as may be required by them to save each of them
harmless for any loss, liability, cost or expense caused by or connected with
such substitution, and, in case of destruction, loss or theft, evidence
satisfactory to the Company, the Trustee and, if applicable, any paying agent or
conversion agent of the destruction, loss or theft of such Note and of the
ownership thereof.
Every replacement Note is an additional obligation of the Company and shall
be entitled to all the benefits provided under this Indenture equally and
proportionately with all other Notes duly issued, authenticated and delivered
hereunder.
SECTION 2.8 Outstanding Notes.
The Notes outstanding at any time are all the Notes properly authenticated
by the Trustee except for those canceled by the Trustee, those delivered to it
for cancellation, and those described in this Section 2.8 as not outstanding.
If a Note is replaced pursuant to Section 2.7, it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Note is
held by a protected purchaser (as defined in Article 8 of the Uniform Commercial
Code).
If Notes are considered paid under Section 4.1 or converted under Article
12, they cease to be outstanding, and interest on them ceases to accrue.
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Subject to Section 2.9 hereof, a Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Note.
SECTION 2.9 When Notes Owned by the Company or an Affiliate are Disregarded.
In determining whether the holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or an Affiliate of the Company shall be considered as though they are
not outstanding except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes which a Trust Officer of the Trustee actually knows are so owned shall be
so disregarded.
SECTION 2.10 Temporary Notes.
(a) 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 considers appropriate for temporary Notes and shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Notes in exchange for temporary
Notes.
(b) A Global Security deposited with the Depositary or with the Trustee as
custodian for the Depositary pursuant to Section 2.1 shall be transferred to the
beneficial owners thereof in the form of certificated Notes in definitive form
only if such transfer complies with Section 2.6 and
(i) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Security or if at any time such
Depositary ceases to be a "clearing agency" registered under the
Exchange Act and a successor Depositary is not appointed by the
Company within 90 days of such notice, or
(ii) an Event of Default has occurred and is continuing.
(c) Any Global Security or interest therein that is transferable to the
beneficial owners thereof in the form of certificated Notes in definitive form
shall, if held by the Depositary, be surrendered by the Depositary to the
Trustee, without charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Security, an equal aggregate
principal amount of Notes of authorized denominations in the form of
certificated Notes in definitive form. Any portion of a Global Security
transferred pursuant to this Section 2.10 shall be executed, authenticated and
delivered only in denominations of $1,000 and integral multiples thereof and
registered in such names as the Depositary shall direct.
(d) Prior to any transfer pursuant to Section 2.10(b), the registered
holder of a Global Security may grant proxies and otherwise authorize any
person, including Agent Members and persons that may hold interests through
Agent Members, to take any action which a holder is entitled to take under this
Indenture or the Notes.
19
SECTION 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange, payment,
replacement, conversion, repurchase or cancellation. The Trustee and no one else
may cancel Notes surrendered for registration of transfer, exchange, payment,
replacement, conversion, repurchase or cancellation. The Trustee shall dispose
of canceled Notes in accordance with its then customary procedures, unless the
Company shall otherwise direct in writing. The Company may not issue new Notes
to replace Notes that it has paid, redeemed or repurchased or that have been
delivered to the Trustee for cancellation or that any holder has (i) converted
pursuant to Article 12 hereof, (ii) submitted for redemption pursuant to Article
3 hereof or (iii) submitted for repurchase pursuant to Section 4.6 hereof.
SECTION 2.12 Defaulted Interest.
If the Company fails to make a payment of interest on the Notes, it shall
pay such defaulted interest plus, to the extent lawful, any interest payable on
the defaulted interest. It may pay such defaulted interest, plus any such
interest payable on it, to the persons who are holders of such Notes on a
subsequent special record date. The Company shall fix any such record date and
payment date. At least 15 days before any such record date, the Company shall
mail to holders of such Notes a notice that states the record date, payment date
and amount of such interest to be paid.
SECTION 2.13 CUSIP Number.
The Company in issuing the Notes may use "CUSIP" numbers, and if so, such
CUSIP number shall be included in notices of redemption or repurchase as a
convenience to holders of Notes; provided, however, that any such notice may
state that no representation is made as to the correctness or accuracy of the
CUSIP numbers printed in the notice or on the Notes and that reliance may be
placed only on the other identification numbers printed on the Notes; and
provided, further, that neither the Trustee nor any Registrar shall have any
liability as to the correctness or accuracy of any CUSIP numbers so printed in
the notice. The Company will promptly notify the Trustee of any change in the
CUSIP numbers.
ARTICLE 3
REDEMPTION
SECTION 3.1 Optional Redemption.
On or after June 20, 2007, the Company may redeem the Notes at its option
in cash, in whole or from time to time in part during the following periods at
the following Redemption Prices expressed as percentages of the principal
amount:
Period Redemption Price
------ ----------------
Beginning on June 20, 2007 and ending on June 14, 2008....... 102.17%
Beginning on June 15, 2008 and ending on June 14, 2009....... 101.30%
Beginning on June 15, 2009 and thereafter.................... 100.43%
20
In each case, the Company will pay accrued and unpaid interest to, but not
including, the Redemption Date. If the Redemption Date in an Interest Payment
Date, interest will be paid to the record holder on the relevant Regular Record
Date.
SECTION 3.2 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.1 hereof, it shall furnish to the Trustee, at least 30
days but not more than 60 days before a Redemption Date (unless a shorter period
shall be satisfactory to the Trustee), an Officers' Certificate setting forth:
(1) the Section of this Indenture pursuant to which the redemption shall
occur;
(2) the Redemption Date;
(3) the principal amount of Notes (if less than all) to be redeemed;
(4) the Redemption Price; and
(5) the CUSIP number of the Notes being redeemed.
SECTION 3.3 Selection of Notes To Be Redeemed.
If fewer than all the Notes are to be redeemed, the Trustee shall select
the Notes to be redeemed by a method that complies with the requirements of the
principal national securities exchange, if any, on which the Notes are listed or
quoted or, if the Notes are not so listed, on a pro rata basis, by lot or by any
other method that the Trustee considers fair and appropriate. The Trustee shall
make the selection not more than 60 days and not less than 30 days before the
Redemption Date from Notes outstanding and not previously called for redemption.
The Trustee may select for redemption a portion of the principal of any Note
that has a denomination larger than $1,000. Notes and portions thereof will be
redeemed in the amount of $1,000 or integral multiples of $1,000.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption. The Trustee shall notify the
Company promptly of the Notes or portions of Notes to be called for redemption.
If any Note selected for partial redemption is converted in part after such
selection, the converted portion of such Note shall be deemed (so far as may be)
to be the portion to be selected for redemption. The Notes (or portion thereof)
so selected shall be deemed duly selected for redemption for all purposes
hereof, notwithstanding that any such Note is converted in whole or in part
before the mailing of the notice of redemption. Upon any redemption of fewer
than all the Notes, the Company and the Trustee may treat as outstanding any
Notes surrendered for conversion during the period of 15 days next preceding the
mailing of a notice of redemption and need not treat as outstanding any Note
authenticated and delivered during such period in exchange for the unconverted
portion of any Note converted in part during such period.
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SECTION 3.4 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date, the
Company shall mail by first-class mail a notice of redemption to each holder
whose Notes are to be redeemed, at such holder's registered address.
The notice shall identify the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the Redemption Date, upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion will be issued in the name of the holder thereof;
(4) that Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price;
(5) that interest on Notes called for redemption and for which funds have
been set apart for payment, ceases to accrue on and after the Redemption Date
(unless the Company defaults in the payment of the Redemption Price or the
Paying Agent is prohibited from making such payment pursuant to the terms of
this Indenture);
(6) the paragraph of the Notes pursuant to which the Notes called for
redemption are being redeemed;
(7) the aggregate principal amount of Notes (if less than all) that are
being redeemed;
(8) the CUSIP number of the Notes (provided that the disclaimer permitted
by Section 2.13 may be made);
(9) the name and address of the Paying Agent;
(10) that Notes called for redemption may be converted at any time prior to
the close of business on the last Trading Day immediately preceding the
Redemption Date and if not converted prior to the close of business on such
date, the right of conversion will be lost; and
(11) that in the case of Notes or portions thereof called for redemption on
a date that is also an Interest Payment Date, the interest payment due on such
date shall be paid to the person in whose name the Note is registered at the
close of business on the relevant Regular Record Date.
The notice if mailed in the manner herein provided shall be conclusively
presumed to have been given, whether or not the holder receives such notice. In
any case, failure to give such notice by mail or any defect in the notice to the
holder of any Note designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any Note.
22
At the Company's written request delivered at least 15 days prior to the
date such notice is to be given (unless a shorter period shall be acceptable to
the Trustee), the Trustee shall give notice of redemption in the Company's name
and at the Company's expense.
SECTION 3.5 Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for redemption become due
and payable on the Redemption Date at the Redemption Price set forth in the
Note.
SECTION 3.6 Deposit of Redemption Price.
On or before 10:00 a.m., New York City time, on the Redemption Date, the
Company shall deposit with the Trustee or with the Paying Agent money in
immediately available funds sufficient to pay the Redemption Price of and
accrued and unpaid interest on all Notes to be redeemed on that date. The
Trustee or the Paying Agent shall return to the Company any money not required
for that purpose.
On and after the Redemption Date, unless the Company shall default in the
payment of the Redemption Price, interest will cease to accrue on the principal
amount of the Notes or portions thereof called for redemption and for which
funds have been set apart for payment, and such Notes, or portions thereof,
shall cease after the close of business on the business day immediately
preceding the Redemption Date to be convertible into shares of Class A Common
Stock and, except as provided in this Section 3.6 and Section 8.4, to be
entitled to any benefit or security under this Indenture, and the holders
thereof shall have no right in respect of such Notes, or portions thereof,
except the right to receive the Redemption Price thereof and accrued and unpaid
interest up to, but not including, the Redemption Date. In the case of Notes or
portions thereof redeemed on a Redemption Date which is also an Interest Payment
Date, the interest payment due on such date shall be paid to the person in whose
name the Note is registered at the close of business on the relevant Regular
Record Date.
SECTION 3.7 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part only, the Company shall
issue and the Trustee shall authenticate and deliver to the holder of a Note a
new Note equal in principal amount to the unredeemed portion of the Note
surrendered, at the expense of the Company, except as specified in Section 2.6.
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Notes.
The Company shall pay the principal of or premium, if any, and interest on,
or Fundamental Change Payment or Redemption Price with respect to, the Notes on
the dates and in the manner provided in the Notes. Principal, premium, if any,
interest, the Fundamental Change Payment and Redemption Price shall be
considered paid on the date due if the Trustee or Paying Agent (other than the
Company or a subsidiary of the Company) holds as of 10:00 a.m., New
23
York City time, on that date immediately available funds designated for and
sufficient to pay all principal, premium, if any, interest or the Fundamental
Change Payment or Redemption Price then due; provided, however, that money held
by an Agent for the benefit of holders of Senior Indebtedness pursuant to the
provisions of Article 11 hereof or the payment of which to the holders of the
Notes is prohibited by Article 11 shall not be considered to be designated for
the payment of any principal of or premium, if any, or interest on, or
Fundamental Change Payment or Redemption Price with respect to, the Notes within
the meaning of this Section 4.1. To the extent lawful, the Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on (i) overdue principal, at the rate borne by Notes, compounded
semiannually; and (ii) overdue installments of interest (without regard to any
applicable grace period) at the same rate, compounded semiannually.
SECTION 4.2 Periodic Reports to the Trustee.
The Company shall provide to the Trustee such documents, reports and
information as required by TIA 'SS' 314 (if any) in the form, in the manner
and at the times required by TIA 'SS' 314 Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 4.3 Compliance Certificate.
The Company shall deliver to the Trustee within 120 days after the end of
each fiscal year of the Company an Officers' Certificate stating that in the
course of the performance by the signers of their duties as Officers of the
Company they would normally have knowledge of any Default or Event of Default
and whether or not the signers know of any Default or Event of Default that
occurred during such period. If they do, the certificate shall describe the
Default or Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with Trust
Indenture Act 'SS' 314(a)(4).
SECTION 4.4 Maintenance of Office or Agency.
The Company shall maintain or cause to be maintained the office or agency
required under Section 2.3. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency not maintained by the Trustee. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, presentations, surrenders, notices and demands with
respect to the Notes may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designation.
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SECTION 4.5 Continued Existence.
Subject to Article 5, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence.
SECTION 4.6 Repurchase Upon Fundamental Change.
Following a Fundamental Change (the date of each such occurrence being the
"Fundamental Change Date") prior to the Maturity Date, the Company shall notify
the holders of Notes in writing of such occurrence and shall make an offer (the
"Fundamental Change Offer") to repurchase all Notes then outstanding at a
repurchase price in cash (the "Fundamental Change Payment") equal to 100% of the
principal amount thereof, plus accrued and unpaid interest up to, but not
including, the Fundamental Change Payment Date (as defined below).
Notice of a Fundamental Change shall be mailed by or at the direction of
the Company to the holders of Notes as shown on the Register and to beneficial
owners as required by law not more than 30 days after the applicable Fundamental
Change Date at the addresses as shown on the Register of holders maintained by
the Registrar, with a copy to the Trustee and the Paying Agent. During the
period specified in such notice, holders of Notes may elect to tender their
Notes in whole or in part in integral multiples of $1,000 in exchange for cash.
Payment of the Fundamental Change Payment shall be made by the Company in
respect of Notes properly tendered pursuant to this Section 4.6 on the day (the
"Fundamental Change Payment Date") which shall be the business day succeeding
the 60th day after the date of the notice of the applicable Fundamental Change.
The notice, which shall govern the terms of the Fundamental Change Offer,
shall include such disclosures as are required by law and shall state:
(a) that a Fundamental Change Offer is being made pursuant to this Section
4.6 and that all Notes will be accepted for payment;
(b) a brief description of the event, transaction or transactions that
constitute the Fundamental Change;
(c) the Fundamental Change Payment for each Note and the Fundamental Change
Payment Date;
(d) that any Note not accepted for payment will continue to accrue interest
in accordance with the terms thereof;
(e) that, unless the Company defaults on making the Fundamental Change
Payment, any Note accepted for payment pursuant to the Fundamental Change Offer
shall cease to accrue interest on the Fundamental Change Payment Date and no
further interest shall accrue on or after such date;
(f) that holders electing to have Notes repurchased pursuant to a
Fundamental Change Offer will be required to deliver, not later than 5:00 p.m.,
New York City time, on the 60th day after the date of the Company's notice
described in this paragraph, a repurchase notice
25
electing to require the Company to repurchase all or some portion of the Notes
held by such holder, which notice shall state (i) the name of the holder, (ii)
the principal amount of Notes the holder is delivering for purchase, which must
be $1,000 or integral multiples thereof and (iii) the Note certificate number
(if any);
(g) that holders of Notes will be entitled to withdraw their election if
the Paying Agent receives, not later than 5:00 p.m., New York City time, on the
business day immediately preceding the Fundamental Change Payment Date, a
facsimile transmission or letter setting forth (i) the name of the holder, (ii)
the principal amount of Notes the holder delivered for purchase, (iii) the Note
certificate number (if any) delivered, (iv) a statement that such holder is
withdrawing his election to have such Notes purchased, (v) the principal amount
of Notes being withdrawn, (vi) the Note certificate number (if any) being
withdrawn and (vii) the principal amount of Notes that remains subject to the
Fundamental Change Offer, if any;
(h) that holders whose Notes are repurchased only in part will be issued
Notes equal in principal amount to the unpurchased portion of the Notes
surrendered provided that the unpurchased portion shall be in an authorized
denomination;
(i) the instructions that holders must follow in order to tender their
Notes; and
(j) that in the case of a Fundamental Change Payment Date that is also an
Interest Payment Date, the interest payment due on such date shall be paid to
the person in whose name the Note is registered at the close of business on the
relevant Regular Record Date.
On the Fundamental Change Payment Date, the Company shall accept for
payment all Notes or portions thereof validly tendered and not validly withdrawn
pursuant to the Fundamental Change Offer. On or before 10:00 a.m., New York City
time, on the Fundamental Change Payment Date, the Company shall deposit with the
Paying Agent money sufficient to pay the Fundamental Change Payment with respect
to all Notes or portions thereof so tendered and accepted, and deliver or cause
to be delivered to the Trustee the Notes so accepted together with an Officers'
Certificate setting forth the aggregate principal amount of Notes or portions
thereof tendered to and accepted for payment by the Company. Promptly following
the later of (i) the Fundamental Change Payment Date and (ii) the time of
book-entry transfer or physical delivery of Notes by a holder, the Paying Agent
shall mail or deliver the Fundamental Change Payment to such holder of Notes so
accepted and the Trustee shall, as soon as reasonably practicable, authenticate
and mail or cause to be transferred by book-entry to such holder a new Note
equal in principal amount to any unpurchased portion of the Note surrendered, if
any; provided, that such holder shall have delivered to the Paying Agent, by
book-entry transfer or physical delivery, the Notes, together with necessary
endorsements; provided, further, that such new Notes will be in a principal
amount of $1,000 or integral multiples thereof. Any Notes not so accepted shall
be promptly mailed or delivered by the Company to the holder thereof.
None of the provisions of this Section 4.6 relating to the Company's
obligation to repurchase the Notes in the event of a Fundamental Change is
waivable by the Company's Board of Directors. In addition, except as described
in Section 12.6, this Section 4.6 may not be amended without the consent of a
majority of the principal amount of the Notes as well as the consent of the
holder of each outstanding Note.
26
There shall be no purchase of any Notes pursuant to this Section 4.6 if
there has occurred (prior to, on or after, as the case may be, the giving, by
the holders of such Notes, of the required Fundamental Change repurchase notice)
and is continuing, an Event of Default (other than a default in the payment of
the Fundamental Change Payment with respect to such Notes). The Paying Agent
will promptly return to the respective holders any Notes (x) with respect to
which a Fundamental Change repurchase notice has been withdrawn in compliance
with this Indenture or (y) held by it during the continuance of an Event of
Default (other than a default in the payment of the Fundamental Change Payment
with respect to such Notes) in which case upon such return the Fundamental
Change repurchase notice with respect thereto shall be deemed to have been
withdrawn.
The Fundamental Change Offer shall be made by the Company in compliance
with all applicable provisions of the Exchange Act, and all applicable tender
offer rules promulgated thereunder, to the extent such laws and regulations are
then applicable and shall include all instructions and materials that the
Company shall reasonably deem necessary to enable such holders of Notes to
tender their Notes.
SECTION 4.7 Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.8, a Trustee, so that
there shall at all times be a Trustee hereunder.
SECTION 4.8 Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter enforced, that may affect the Company's
obligation to pay the Notes; and the Company (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law insofar
as such law applies to the Notes, and covenants that it shall not, by resort to
any such law, hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power as
though no such law has been enacted.
SECTION 4.9 Taxes.
The Company shall, and shall cause each of its subsidiaries to, pay prior
to delinquency all taxes, assessments and government levies; provided, however,
that the Company shall not be required to pay or cause to be paid any such tax,
assessment or levy (A) if the failure to do so will not, in the aggregate, have
a material adverse impact on the Company and its subsidiaries taken as a whole,
or (B) if the amount, applicability or validity is being contested in good faith
by appropriate proceedings.
SECTION 4.10 Investment Company Act.
As long as any Notes are outstanding, the Company will conduct its business
and operations so as not to become an "investment company" within the meaning of
the Investment Company Act, and will take all steps required in order for it to
continue not to be an "investment
27
company" and not to be required to be registered under the Investment Company
Act, including, if necessary, redeployment of the assets of the Company.
ARTICLE 5
SUCCESSORS
SECTION 5.1 When the Company May Merge, Etc.
The Company may not, in a single transaction or series of related
transactions, consolidate or merge with or into (whether or not the Company is
the surviving corporation), or sell, assign, transfer, convey, lease or
otherwise dispose of all or substantially all of its properties or assets to
another corporation, person or entity as an entirety or substantially as an
entirety unless:
(a) either:
(i) the Company shall be the surviving or continuing corporation; or
(ii) the entity or person formed by or surviving any such
consolidation or into which the Company is merged (if other than
the Company) or the entity or person which acquires by sale,
assignment, transfer, lease, conveyance or other disposition the
properties and assets of the Company as an entirety or
substantially as an entirety shall:
(1) be a corporation organized and validly existing under the
laws of the United States or any State thereof or the
District of Columbia; and
(2) expressly assume, by supplemental indenture in form
reasonably satisfactory to the Trustee, executed and
delivered to the Trustee, the due and punctual payment of
the principal of or premium, if any, and interest on, all of
the Notes and the performance of every covenant of the Notes
and this Indenture on the part of the Company to be
performed or observed, including, without limitation,
modifications to rights of holders to cause the repurchase
of Notes upon a Fundamental Change in accordance with
Section 12.6 and conversion rights in accordance with
Section 12.6 to the extent required by such Sections;
(b) immediately after giving effect to such transaction, no Default and no
Event of Default, and no event that, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing; and
(c) the Company or such person shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, sale, assignment, transfer, conveyance, lease or other
disposition and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this
28
provision of this Indenture and that all conditions precedent in this Indenture
relating to such transaction have been satisfied.
For purposes of this Section 5.1, the sale, assignment, transfer,
conveyance, lease or other disposition, in a single transaction or series of
transactions, of all or substantially all of the properties or assets of one or
more subsidiaries of the Company, the capital stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
SECTION 5.2 Successor Corporation Substituted.
Upon any such consolidation, merger, sale, assignment, transfer,
conveyance, lease or other disposition in accordance with Section 5.1, the
successor person formed by such consolidation or into which the Company is
merged or to which such sale, assignment, transfer, conveyance, lease or other
disposition is made will succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor had been named as the Company therein, and thereafter
(except in the case of a lease) the predecessor corporation will be relieved of
all further obligations and covenants under this Indenture and the Notes.
SECTION 5.3 Purchase Option on Fundamental Change.
This Article 5 does not affect the obligations of the Company (including
without limitation any successor to the Company) under Section 4.6.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default.
An "Event of Default" with respect to any Notes occurs if:
(a) the Company defaults in the payment (whether or not such payment is
prohibited by the subordination provisions set forth in Article 11 of this
Indenture) of principal of or premium, if any, or Fundamental Change Payment or
Redemption Price with respect to any Note when due at maturity, upon repurchase
or redemption, upon acceleration or otherwise;
(b) the Company defaults in the payment (whether or not such payment is
prohibited by the subordination provisions set forth in Article 11 of this
Indenture) of any installment of interest on the Notes when due (including any
interest payable in connection with a repurchase pursuant to Section 4.6 or in
connection with any optional redemption payment pursuant to Article 3) and such
default continues for 30 days or more;
(c) the Company fails to provide timely notice of any Fundamental Change in
accordance with Section 4.6;
29
(d) the Company defaults (other than a default set forth in clauses (a),
(b) and (c) above) in the performance of, or breaches, any other covenant or
warranty of the Company set forth in this Indenture or the Notes and fails to
remedy such default or breach within a period of 60 days after the receipt of
written notice from the Trustee or 25% in aggregate principal amount of the
outstanding Notes;
(e) one or more defaults in the payment of principal of or premium, if any,
on any Indebtedness within any applicable grace period after the final scheduled
maturity thereof or the acceleration of any such Indebtedness by the holders
thereof because of a default if the total amount of such Indebtedness unpaid or
accelerated exceeds $100.0 million or its foreign currency equivalent and such
failure continues for 30 days; provided, that this clause (e) shall not apply to
(A) any notice of wind-down or any comparable notice to be given in connection
with a Qualified Securitization Transaction or (B) any wind-down, or comparable
event, with respect to a Qualified Securitization Transaction;
(f) the Company or any of its Significant Subsidiaries or group of
subsidiaries that, taken together (as of the latest audited consolidated
financial statements for the Company and its subsidiaries), would constitute a
Significant Subsidiary fail to pay final judgments aggregating in excess of
$100.0 million (net of any amounts for which a reputable and creditworthy
insurance company is liable, unless such insurance company has disclaimed such
liability in writing), which judgments are not paid, discharged or stayed for a
period of 60 days following such judgments and none of such judgments has been
discharged, waived or stayed;
(g) the Company, pursuant to or within the meaning of any Bankruptcy Law
(as defined below):
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case,
(iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors;
(v) makes the admission in writing that it generally is unable to pay
its debts as the same become due; or
(h) a court of competent jurisdiction enters a judgment, order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary case,
(ii) appoints a Custodian of the Company, or
(iii) orders the liquidation of the Company,
and in any case, the order or decree remains unstayed and in effect for 90 days.
30
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal
or state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
SECTION 6.2 Acceleration.
If an Event of Default (other than an Event of Default with respect to the
Company specified in clauses (g) and (h) of Section 6.1) occurs and is
continuing, then and in every such case the Trustee, by written notice to the
Company, or the holders of at least 25% in aggregate principal amount of the
then outstanding Notes, by written notice to the Company and the Trustee, may,
and the Trustee at the request of such holders shall, declare the unpaid
principal of, and premium, if any, and accrued and unpaid interest on, all the
then outstanding Notes to be due and payable; provided, if the Existing Credit
Facility is then outstanding, that such amount shall not be declared due and
payable unless the Trustee shall have given prompt prior notice thereof to the
Designated Senior Lender. Upon such declaration, such principal, premium, if
any, and accrued and unpaid interest shall become immediately due and payable,
notwithstanding anything contained in this Indenture or the Notes to the
contrary, but subject to the provisions of Article 11 hereof.
The holders of at least a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may rescind an acceleration of
the Notes and its consequences if all existing Events of Default (other than
nonpayment of principal of or premium, if any, and interest on, the Notes which
has become due solely by virtue of such acceleration) have been cured or waived,
the amounts payable to the Trustee under Section 7.7 shall have been paid and if
the rescission would not conflict with any judgment or decree of any court of
competent jurisdiction. No such rescission shall affect any subsequent Default
or Event of Default or impair any right consequent thereto.
If any Event of Default with respect to the Company specified in clauses
(g) or (h) of Section 6.1 occurs, all unpaid principal of and accrued and unpaid
interest on the Notes then outstanding shall become automatically due and
payable, subject to the provisions of Article 11 hereof without any declaration
or other act on the part of the Trustee or any holder of Notes.
SECTION 6.3 Other Remedies.
If an Event of Default with respect to Notes occurs and is continuing, the
Trustee may pursue any available remedy by proceeding at law or in equity to
collect the payment of principal of or premium, if any, and interest on, the
Notes or to enforce the performance of any provision of the Notes or this
Indenture. The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any holder of a Note in exercising any right or
remedy occurring upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
31
SECTION 6.4 Waiver of Past Defaults.
Subject to Section 6.2, the holders of at least a majority in aggregate
principal amount of the Notes then outstanding may, on behalf of the holders of
all the Notes, waive an existing Default or Event of Default and its
consequences, except a Default or Event of Default in the payment of the
principal of, or premium, if any, or interest, on, or Fundamental Change Payment
or Redemption Price with respect to, the Notes (other than the non-payment of
principal of, premium, if any, and interest on the Notes which has become due
solely by virtue of an acceleration which has been duly rescinded as provided
above), or in respect of a covenant or provision of this Indenture which cannot
be modified or amended without the consent of each holder of Notes affected
thereby (in addition to the consent of at least a majority in aggregate
principal amount of then outstanding Notes), or with respect to a failure to
purchase any Notes tendered pursuant to Section 4.6 hereof. When a Default or
Event of Default is waived, it is cured and stops continuing. No waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.
SECTION 6.5 Control by Majority.
The holders of at least a majority in aggregate principal amount of the
then outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture or that the Trustee determines may be
unduly prejudicial to the rights of other holders of Notes or that may involve
the Trustee in personal liability; provided, that the Trustee shall have no duty
or obligation (subject to Section 7.1) to ascertain whether or not such actions
or forbearances are unduly prejudicial to such holders; provided, further, that
the Trustee may take any other action the Trustee deems proper that is not
inconsistent with such directions. Notwithstanding anything to the contrary
contained in this Indenture, holders of Notes may enforce their rights under
this Indenture or the Notes only as provided herein.
SECTION 6.6 Limitation on Suits.
A holder of a Note may not pursue any remedy with respect to this Indenture
or the Notes unless:
(1) such holder gives to the Trustee notice of a continuing Event of
Default;
(2) the holders of at least 25% in aggregate principal amount of the then
outstanding Notes make a request to the Trustee to pursue the remedy;
(3) such holder or holders offer and, if requested, provide to the Trustee
security or indemnity satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
security or indemnity; and
(5) during such 60-day period the holders of a majority in aggregate
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
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A holder of a Note may not use this Indenture to prejudice the rights of
another holder or to obtain a preference or priority over another holder.
SECTION 6.7 Rights of Holders To Receive Payment.
Subject to the provisions of Article 11 hereof, notwithstanding any other
provision of this Indenture, the right of any holder of a Note to receive
payment of principal of or premium, if any, and interest on, the Note, on or
after the respective due dates expressed in the Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, or to bring
suit for the enforcement of the right to convert the Note shall not be impaired
or affected without the consent of the holder of a Note.
SECTION 6.8 Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(a) or (b) occurs and is
continuing with respect to Notes, the Trustee may recover judgment in its own
name and as trustee of an express trust against the Company for the whole amount
of principal, premium, if any, and interest remaining unpaid on, or Fundamental
Change Payment or Redemption Price with respect to, the Notes and interest on
overdue principal, premium, if any, and interest (or Fundamental Change Payment
or Redemption Price) and such further amount as shall be sufficient to cover the
costs and, to the extent lawful, expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and all other amounts due the Trustee under Section 7.7.
SECTION 6.9 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and the
holders of Notes allowed in any judicial proceedings relative to the Company,
its creditors or its property. The Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise to:
(a) file and prove a claim for the whole amount of the principal of, and
interest on, 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 for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and all other amounts due the Trustee under
Section 7.7) and of the holders of the Notes allowed in such judicial
proceedings; and
(b) collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same;
and any Custodian in any such judicial proceeding is hereby authorized by each
holder of Notes 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 holder of
Notes, to pay the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.7.
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Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any holder of a Note 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 6.10 Priorities.
If the Trustee collects any money with respect to the Notes pursuant to
this Article 6, it shall pay out the money in the following order:
(a) First: to the Trustee for amounts due under Section 7.7, including
payment of all compensation, expenses and liabilities incurred, and all advances
made, by the Trustee, and the costs and expenses of collection;
(b) Second: to holders of Senior Indebtedness to the extent required by
Article 11;
(c) Third: to holders of Notes for amounts due and unpaid on the Notes for
principal, premium, if any, and interest ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes for
principal, premium, if any, and interest, respectively; and
(d) Fourth: to the Company.
Except as otherwise provided in Section 2.12, the Trustee may fix a record
date and payment date for any payment to holders of Notes.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit, other than the Trustee, of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
holder pursuant to Section 6.7 or a suit by holders of more than 10% in
aggregate principal amount of the then outstanding Notes.
ARTICLE 7
THE TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture and
covenants and agrees to perform the same, as herein expressed. Whether or not
herein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Article 7.
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SECTION 7.1 Duties of the Trustee.
(a) If an Event of Default with respect to the Notes known to a Trust
Officer of the Trustee has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) Except during the continuance of an Event of Default known to the
Trustee:
(1) The duties of the Trustee shall be determined solely by the express
provisions of this Indenture, and the Trustee need perform only those duties
that are specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and
(2) In the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any statements, certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However, in
the case of any 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 shall not be required to confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) this paragraph does not limit the effect of paragraph (b) or paragraph
(e) 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 or any other officer of the Trustee to whom such matter
is referred, because of such person's knowledge of and familiarity with the
particular subject, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it
pursuant to Section 6.5.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that is in any way related to the Trustee is subject to paragraphs
(a), (b), (c) and (e) of this Section 7.1.
(e) 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 or the exercise of any of its rights and powers hereunder,
including, without limitation, the provisions of Section 6.5 hereof, if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk of liability is not reasonably assured to it.
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(f) The Trustee shall not be liable for interest on or the investment of
any money received by it except as the Trustee may agree with the Company. Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
SECTION 7.2 Rights of the Trustee.
(a) The Trustee may rely on and shall be protected in acting or refraining
from acting upon any resolution, Officers' Certificate, or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, security or other document believed by it to be genuine and to have been
signed or presented by the proper person. The Trustee need not investigate any
fact or matter contained therein.
(b) Any request, direction, order or demand of the Company shall be
sufficiently evidenced by an Officers' Certificate (unless other evidence in
respect thereof is herein specifically prescribed). In addition, before the
Trustee acts or refrains from acting, it may require an Officers' Certificate,
an Opinion of Counsel or both. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such Officers' Certificate
or Opinion of Counsel. The Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through attorneys and
agents and other persons not regularly in its employ 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 without negligence or willful misconduct which it believes to
be authorized or within its discretion, rights or powers.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
two Officers of the Company.
(f) The Trustee shall not be required to give any bond or surety in respect
of the performance of its powers and duties hereunder.
(g) 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 of Notes pursuant to the provisions of this Indenture, unless
such holders have offered to the Trustee security or indemnity satisfactory to
it against the costs, expenses and liabilities which might be incurred therein
or thereby.
(h) The Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, security or other document
unless requested in writing to do so by the holders of not less than a majority
in aggregate principal amount of the Notes then outstanding, provided
36
that if the Trustee determines in its discretion to make any such investigation,
then it shall be entitled, upon reasonable prior notice and during normal
business hours, to examine the books and records and the premises of the
Company, personally or by agent or attorney, and the reasonable expenses of
every such examination shall be paid by the Company or, if paid by the Trustee
or any predecessor Trustee, shall be reimbursed by the Company upon demand.
(i) The permissive rights of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty, and the Trustee shall not be
answerable for other than its gross negligence or willful misconduct.
(j) The Trustee shall not be responsible for the computation of any
adjustment to the Conversion Price of the Notes or for any determination as to
whether an adjustment is required and shall not be deemed to have knowledge of
any adjustment until it shall have received the notice from the Company
contemplated by Section 12.5(j).
(k) The rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act hereunder.
(l) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
certificates previously delivered and not superseded.
SECTION 7.3 Individual Rights of the Trustee.
Subject to Sections 7.10 and 7.11, the Trustee in its individual or any
other capacity may become the owner or pledgee of Notes with the same rights it
would have if it were not the Trustee and may otherwise deal with the Company or
an Affiliate of the Company and receive, collect, hold and retain collections
from the Company with the same rights it would have if it were not Trustee.
However, in the event that the Trustee acquires any conflicting interest (as
such term is defined in 'SS' 3.10(b) of the TIA), it must eliminate such
conflict within 90 days, apply to the Commission for permission to continue as
trustee (to the extent permitted under Section 310(b) of the TIA) or resign. Any
Agent may do the same with like rights.
SECTION 7.4 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Notes. It shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture. It shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
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SECTION 7.5 Notice of Defaults.
If a Default or Event of Default with respect to the Notes occurs and is
continuing and if it is known to a Trust Officer of the Trustee, the Trustee
shall mail to each holder of a Note a notice of the Default or Event of Default
within 60 days after such Default or Event of Default occurs. A Default or an
Event of Default shall not be considered known to a Trust Officer of the Trustee
unless it is a Default or Event of Default in the payment of principal, premium,
if any, or interest (or Fundamental Change Payment or Redemption Price) when due
under Section 6.1(a) or (b) or a Trust Officer of the Trustee shall have
received written notice thereof, in accordance with this Indenture, from the
Company or from the holders of at least a majority in aggregate principal amount
of the outstanding Notes. Except in the case of a Default or Event of Default in
payment of principal, premium, if any, or interest on (or Fundamental Change
Payment or Redemption Price with respect to) any Note, the Trustee may withhold
the notice if and so long as a trust committee of its officers in good faith
determines that withholding the notice is in the interest of the holders of the
Notes.
SECTION 7.6 Reports by the Trustee to Holders.
Within 60 days after May 15, beginning May 15, 2003, the Trustee shall mail
to holders of Notes a brief report dated as of such reporting date that complies
with TIA 'SS' 313(a) (but if no event described in TIA 'SS' 313(a) has
occurred within twelve months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with TIA 'SS' 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA 'SS' 313(c).
A copy of each report at the time of its mailing to holders of Notes shall
be filed, at the expense of the Company, by the Trustee with the Commission and
each stock exchange or securities market, if any, on which the Notes are listed.
The Company shall timely notify the Trustee when the Notes are listed or quoted
on any stock exchange or securities market.
SECTION 7.7 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation for its acceptance of this Indenture and
its services hereunder as the Company and the Trustee shall from time to time
agree in writing. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by or on behalf of it in addition to the compensation
for its services. Such expenses may include the reasonable compensation,
disbursements and expenses of the Trustee's agents, counsel and other persons
not regularly in its employ.
The Company shall indemnify, defend and hold the Trustee or any predecessor
Trustee and their directors, officers, employees and agents (collectively with
the Trustee, the "Indemnitees") harmless from and against every loss, liability
or expense, including without limitation damages, fines, suits, actions,
demands, penalties, costs, out-of-pocket or incidental expenses, legal fees and
expenses, and the costs and expenses of defending any claim (collectively,
"Losses"), that may be imposed on, incurred by, or asserted against, any
Indemnitee for or in respect of the Trustee's (i) execution and delivery of this
Indenture, (ii)
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compliance or attempted compliance with or reliance upon any instruction or
other direction upon which the Trustee is authorized to rely pursuant to the
terms of this Indenture and (iii) performance under this Indenture except as set
forth in the next paragraph. Any Indemnitee shall notify the Company promptly of
any claim for which it may seek indemnity under this Section 7.7.
The Company need not reimburse any expense or indemnify against any Loss
incurred by the Trustee or any Indemnitee through its own gross negligence or
willful misconduct.
The Trustee shall have a lien prior to the Notes on all money or property
held or collected by the Trustee to secure the Company's payment obligations in
this Section 7.7, except that held in trust to pay principal, premium, if any,
and interest, on Notes. Such liens and the Company's obligations under this
Section 7.7 shall survive the termination, satisfaction and discharge of this
Indenture and the resignation or removal of the Trustee for any reason.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(f) or (g) occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 7.8 Replacement of the Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.8.
The Trustee may resign at any time and be discharged from the trust hereby
created by so notifying the Company. The holders of at least a majority in
aggregate principal amount of the then outstanding Notes may remove the Trustee
by so notifying the Trustee and the Company in writing and may appoint a
successor Trustee. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the holders
of at least a majority in aggregate principal amount of the then outstanding
Notes may appoint a successor Trustee to replace the successor Trustee appointed
by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee (at the expense of
the Company), the Company or the
39
holders of at least 10% in aggregate principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee after written request by any holder of a Note who has been a
holder for at least six months fails to comply with Section 7.10, such holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor trustee shall
have all the rights, powers and duties of the Trustee under the Indenture. The
successor Trustee shall mail a notice of its succession to holders of Notes. The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, provided that all sums owing to the retiring Trustee
hereunder have been paid and subject to the lien provided for in Section 7.7.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.8, the
Company's obligations under Section 7.7 shall continue for the benefit of the
retiring Trustee with respect to expenses and liabilities incurred by it prior
to such replacement.
Upon request of any successor Trustee, the Company shall execute any and
all instruments for more fully and certainly vesting and confirming to such
successor Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
SECTION 7.9 Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business (including the trust
created by this Indenture) to, another person, the resulting, surviving or
transferee person without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein.
SECTION 7.10 Eligibility, Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA 'SS' 310(a)(1). The Trustee shall always have a combined capital and
surplus as stated in Section 10.10. The Trustee is subject to TIA 'SS' 310(b)
regarding the disqualification of a trustee upon acquiring a conflicting
interest.
SECTION 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA 'SS' 311(a), excluding any creditor
relationship set forth 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 therein.
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ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.1 Discharge of Indenture.
(a) When the Company delivers to the Trustee for cancellation all Notes
theretofore authenticated (other than any other Notes which have been destroyed,
lost or stolen and in lieu of or in substitution for which other Notes have been
authenticated and delivered) and not theretofore canceled; or
(b) all the Notes not theretofore canceled or delivered to the Trustee for
cancellation have become due and payable, or by their terms will become due and
payable within one year or are to be called for redemption within one year under
arrangements reasonably satisfactory to the Trustee for the giving of notice of
redemption; and
(c) the Company deposits with the Trustee, in trust, amounts sufficient to
pay at maturity all of the Notes (other than any Notes which have been
mutilated, destroyed, lost or stolen and in lieu of or in substitution for which
other Notes have been authenticated and delivered) not theretofore canceled or
delivered to the Trustee for cancellation, including principal and premium, if
any, and interest due or to become due to such date of maturity or Redemption
Date, as the case may be, and if in either case the Company also pays, or causes
to be paid, all other sums payable hereunder by the Company,
then this Indenture shall cease to be of further effect (except as to (i) rights
of substitution, replacement and exchange and conversion of Notes, (ii) rights
hereunder of holders of Notes to receive payments of principal of, and premium,
if any, and interest on, the Notes, (iii) the obligations under Sections 2.3 and
8.5 hereof and (iv) the rights, obligations and immunities of the Trustee
hereunder), and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel as required by Section 10.4, and
at the Company's cost and expense, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture. However, the
Company, hereby agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee and to compensate the
Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Notes.
SECTION 8.2 Deposited Monies to be Held in Trust by Trustee.
Subject to Section 8.4, all monies deposited with the Trustee pursuant to
Section 8.1 shall be held in trust and applied by it to the payment,
notwithstanding the provisions of Article 11 hereof, either directly or through
the Paying Agent, to the holders of the particular Notes for the payment of
which such monies have been deposited with the Trustee, of all sums due and to
become due thereon for principal and premium, if any, and interest.
SECTION 8.3 Paying Agent to Repay Monies Held.
Upon the satisfaction and discharge of this Indenture, all monies then held
by any Paying Agent (other than the Trustee) shall, upon the Company's demand,
be repaid to it or paid to the
41
Trustee, and thereupon such Paying Agent shall be released from all further
liability with respect to such monies.
SECTION 8.4 Return of Unclaimed Monies.
Subject to the requirements of applicable law, any monies deposited with or
paid to the Trustee for payment of the principal of or premium, if any, or
interest on, Notes and not applied but remaining unclaimed by the holders
thereof for two years after the date upon which the principal of or premium, if
any, or interest on, such Notes, as the case may be, have become due and
payable, shall be repaid to the Company by the Trustee on demand; provided,
however, that the Company, or the Trustee at the request and expense of the
Company, shall have first caused notice of such payment to the Company to be
mailed to each holder of a Note entitled thereto no less than 30 days prior to
such payment and all liability of the Trustee shall thereupon cease with respect
to such monies; and the holder of any of the Notes shall thereafter look only to
the Company for any payment which such holder may be entitled to collect unless
an applicable abandoned property law designates another person. In the absence
of a written request from the Company to return unclaimed funds to the Company,
the Trustee shall from time to time deliver all unclaimed funds held by it in
any capacity hereunder to or as directed by applicable escheat authorities, as
required by applicable law. Any unclaimed funds held by the Trustee in any
capacity hereunder pursuant to this Section 8.4 shall be held uninvested and
without any liability for interest.
SECTION 8.5 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 8.2 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to Section
8.1 until such time as the Trustee or the Paying Agent is permitted to apply all
such money in accordance with Section 8.2; provided, however, that if the
Company makes any payment of principal, premium, if any, or interest on any Note
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the holders thereof to receive such payment from the money held
by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.1 Without the Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or the
Notes without notice to, or the consent of, any holder of a Note to:
(a) cure any ambiguity, defect or inconsistency or make any other changes
in the provisions of the Indenture which the Company and the Trustee may deem
necessary or desirable, provided, that such amendment or supplement does not
materially and adversely affect the Notes;
42
(b) provide for uncertificated Notes in addition to or in place of
certificated Notes;
(c) provide for the assumption of the Company's obligations to holders of
Notes in the circumstances required under the indenture as described under
Article 5 hereof;
(d) provide for conversion rights of holders of Notes in the event of
consolidation, merger, or sale of all or substantially all of the assets of the
Company as required to comply with Section 5.1;
(e) reduce the Conversion Price;
(f) evidence and provide for the acceptance of the appointment under the
Indenture of a successor Trustee;
(g) make any change that would provide any additional rights or benefits to
the holders of Notes or that does not adversely affect the legal rights under
the Indenture of any such holder; or
(h) comply with requirements of the Commission in order to maintain the
qualification of this Indenture under the TIA.
However, no amendment or supplement may be made to Section 11 hereof that
adversely affect the rights of any holder of Senior Indebtedness then
outstanding unless the holders of such Senior Indebtedness (or any group or
representative thereof authorized to give consent) consent to such changes.
SECTION 9.2 With the Consent of Holders.
Subject to Section 6.7 and except as set forth in the next paragraph, the
Company and the Trustee may amend or supplement this Indenture or the Notes with
the written consent of the holders of at least a majority in aggregate principal
amount of the then outstanding Notes (including consents obtained in connection
with a purchase of, or tender offer or exchange offer for, Notes). In addition,
subject to Sections 6.4 and 6.7 and except as set forth in the next paragraph,
the holders of at least a majority in aggregate principal amount of the then
outstanding Notes may waive compliance in a particular instance by the Company
with any provision of this Indenture or the Notes.
However, without the consent of each holder of a Note affected thereby (in
addition to the consent of the holders of at least a majority in aggregate
principal amount of the then outstanding Notes), an amendment, supplement or
waiver under this Section 9.2 may not:
(a) reduce the percentage of aggregate principal amount of Notes whose
holders must consent to an amendment, supplement or waiver;
(b) reduce the rate of, or change the time for payment of, interest,
including defaulted interest, on any Note;
(c) reduce the principal of or change the stated maturity of any Note;
43
(d) except as permitted pursuant to Section 9.1(a), (d), (g) or (h), reduce
the premium payable upon the redemption or repurchase of any Note or change the
time at which any Note may be redeemed or repurchased as set forth in Article 3
and Section 4.6;
(e) waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest on, the Notes (except a rescission of acceleration
of the Notes by the holders of at least a majority in aggregate principal amount
of the then outstanding Notes and a waiver of the payment default that resulted
from such acceleration);
(f) make the principal of or premium or interest on, any Note payable in
money other than as provided for herein and in the Notes;
(g) make any change in the provisions of this Indenture relating to waivers
of past Defaults or Events of Default or the rights of holders of Notes to
receive payments of principal of or premium, interest on, the Notes;
(h) waive a payment of the Redemption Price or a Fundamental Change Payment
with respect to any Notes;
(i) except as permitted herein (including Section 9.1(a)), increase the
Conversion Price or modify the provisions contained herein relating to
conversion of the Notes in a manner adverse to the holders thereof; or
(j) make any change to the abilities of holders of Notes to enforce their
rights hereunder or the provisions of clauses (a) through (i) of this Section
9.2 or this provision.
To secure a consent of the holders of Notes under this Section 9.2, it
shall not be necessary for such holders 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 holders of Notes a notice briefly
describing the amendment, supplement or waiver.
SECTION 9.3 Compliance with the Trust Indenture Act.
Every amendment to this Indenture or the Notes shall be set forth in a
supplemental indenture that complies with the TIA as then in effect.
SECTION 9.4 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it
by a holder of a Note 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 or her Note or portion of a Note if the Trustee receives the notice of
revocation before the date on which the Trustee receives an Officers'
Certificate certifying that
44
the holders of the requisite aggregate principal amount of then outstanding
Notes have consented 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 of Notes entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then notwithstanding
the provisions of the immediately preceding paragraph, those persons who were
holders of Notes at such record date (or their duly designated proxies), and
only those persons, shall be entitled to consent to such amendment, supplement
or waiver or to revoke any consent previously given, whether or not such persons
continue to be holders after such record date. No consent shall be valid or
effective for more than 120 days after such record date unless consents from
holders of the aggregate principal amount of Notes required hereunder for such
amendment or waiver to be effective shall have also been given and not revoked
within such 120-day period.
After an amendment, supplement or waiver becomes effective it shall bind
every holder of a Note, unless it is of the type described in clauses (a) - (j)
of Section 9.2. In such case, the amendment, supplement or waiver shall bind
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.
SECTION 9.5 Notation on or Exchange of Notes.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article 9 may, and shall if required by the Trustee,
bear a notation in the form approved by the Trustee as to any matter provided
for in such supplemental indenture. If the Company shall so determine, new Notes
so modified as to conform, in the opinion of the Company and the Trustee, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding Notes
without charge to the holders of the Notes, except as specified in Section 2.6.
SECTION 9.6 Trustee Protected.
The Trustee shall sign any amendment or supplemental indenture authorized
pursuant to this Article 9 if such amendment or supplemental indenture does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If such amendment or supplemental indenture does adversely affect the rights,
duties, liabilities or immunities of the Trustee, the Trustee may, but need not,
sign it. In signing such amendment or supplemental indenture, the Trustee shall
be entitled to receive, in addition to the documents required by Section 10.4
hereof, and shall be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that such amendment or
supplemental indenture is authorized or permitted by this Indenture, that it is
not inconsistent herewith, and that it will be valid and binding upon the
Company in accordance with its terms.
45
ARTICLE 10
GENERAL PROVISIONS
SECTION 10.1 TIA Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA 'SS' 318(c), such duties imposed by such section of the
TIA shall control. If any provision of this Indenture expressly modifies or
excludes any provision of the TIA that may be so modified or excluded, the
Indenture provision so modifying or excluding such provision of the TIA shall be
deemed to apply.
SECTION 10.2 Notices.
Any notice or communication by the Company or the Trustee to the other
parties is duly given if in writing and delivered in person or mailed by
first-class mail, with postage prepaid (registered or certified, return receipt
requested), or sent by facsimile or overnight air courier guaranteeing next day
delivery, to the other party's address as stated in Section 10.10. The Company
or the Trustee by notice to the other may designate additional or different
addresses for subsequent notices or communications.
All notices and communications (other than those sent to holders of Notes)
shall be deemed to have been duly given at the time delivered by hand if
personally delivered; five business days after being deposited in the mail,
postage prepaid, if mailed; when transmission is confirmed, if transmitted by
facsimile; and the next business day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery. Notwithstanding
the foregoing, all notices to the Trustee shall be effective only upon receipt
by a Trust Officer.
Any notice or communication to a holder of a Note shall be mailed by
first-class mail, with postage prepaid, to his or her address shown on the
Register kept by the Registrar. Failure to mail a notice or communication to a
holder or any defect in the notice or communication shall not affect its
sufficiency with respect to other holders.
If a notice or communication to a holder of a Note is sent in the manner
provided above within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Company sends a notice or communication to holders of Notes, it
shall send a copy to the Trustee and each Agent at the same time.
All notices or communications shall be in writing.
SECTION 10.3 Communication by Holders With Other Holders.
Holders may communicate pursuant to TIA 'SS' 312(b) with other holders
of Notes with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and the Paying Agent shall have the
protection of TIA 'SS' 312(c).
46
SECTION 10.4 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 (which shall include the statements set forth in Section 10.5)
stating that, in the opinion of such person, all conditions precedent provided
for in this Indenture (including any covenants, compliance with which
constitutes a condition precedent) relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee (which shall include the statements set forth in Section 10.5)
stating that, in the opinion of such counsel, such action is authorized or
permitted by this Indenture and that all such conditions precedent (including
any covenants, compliance with which constitutes a condition precedent) have
been complied with.
SECTION 10.5 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA 'SS' 314(a)(4)) 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 or she has made
such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
Any Officers' Certificate may be based, insofar as it relates to legal
matters, upon an Opinion of Counsel, unless such Officer knows that the opinion
with respect to the matters upon which his or her certificate may be based as
aforesaid is erroneous. Any Opinion of Counsel may be based, insofar as it
relates to factual matters, upon certificates, statements or opinions of, or
representations by an officer or officers of the Company, or other persons or
firms deemed appropriate by such counsel, unless such counsel knows that the
certificates, statements or opinions or representations with respect to the
matters upon which his or her opinion may be based as aforesaid are erroneous.
Any Officers' Certificate, statement or Opinion of Counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of or
representation by an accountant (who may be an employee of the Company), or firm
of accountants, unless such Officer or
47
counsel, as the case may be, knows that the certificate or opinion or
representation with respect to the accounting matters upon which his or her
certificate, statement or opinion may be based as aforesaid is erroneous.
SECTION 10.6 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by, or a meeting of,
holders of Notes. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 10.7 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in The City of New York or the city in which the Corporate Trust
Office of the Trustee is located are not required to be open, and a "business
day" is any day that is not a Legal Holiday. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period. If any date specified in this Indenture, including, without
limitation, a redemption date under Paragraph 5 of the Notes, is a Legal
Holiday, then such date shall be the next succeeding business day.
SECTION 10.8 No Recourse Against Others.
No director, officer, employee, stockholder or Affiliate, as such, of the
Company from time to time shall have any liability for any obligations of the
Company under the Notes or this Indenture or for any claim based on, in respect
of, or by reason of such obligations or their creation. Each holder by accepting
a Note waives and releases all such liability. This waiver and release are part
of the consideration for the Notes. Each of such directors, officers, employees,
stockholders and Affiliates is a third party beneficiary of this Section 10.8.
SECTION 10.9 Counterparts.
This Indenture may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
SECTION 10.10 Other Provisions.
The Company initially appoints the Trustee as Paying Agent, Registrar and
authenticating agent.
The Trustee shall always have, or shall be a subsidiary of a bank or bank
holding company which has, a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition.
The Company's address is:
Agere Systems Inc.
48
000 Xxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The Trustee's address is:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
SECTION 10.11 GOVERNING LAW.
THIS INDENTURE AND THE NOTES WILL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.12 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 other indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 10.13 Successors.
All agreements of the Company in this Indenture and the Notes shall bind
their respective successors. All agreements of the Trustee in this Indenture
shall bind its successor.
SECTION 10.14 Severability.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.15 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof and shall in no way modify or
restrict any of the terms or provisions hereof.
49
ARTICLE 11
SUBORDINATION
SECTION 11.1 Agreement to Subordinate.
The Company agrees, and each holder of Notes by accepting a Note agrees,
that the indebtedness evidenced by the Note is subordinated in right of payment,
to the extent and in the manner provided in this Article 11, to the prior
payment in full in cash or payment satisfactory to holders of Senior
Indebtedness of all Senior Indebtedness (whether outstanding on the date hereof
or hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Indebtedness.
SECTION 11.2 Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, in
an assignment for the benefit of creditors or any marshaling of the Company's
assets and liabilities:
(1) holders of Senior Indebtedness shall be entitled to receive payment in
full of all Obligations due in respect of such Senior Indebtedness (including
interest after the commencement of any such proceeding at the rate specified in
the applicable Senior Indebtedness) in cash or other payment satisfactory to the
holders of the Senior Indebtedness before holders of Notes shall be entitled to
receive any payment with respect to the Notes; and
(2) until all Senior Indebtedness is paid in full in cash or other payment
satisfactory to the holders of the Senior Indebtedness, any distribution to
which holders of Notes would be entitled but for this Article 11 shall be made
to holders of Senior Indebtedness, as their interests may appear.
SECTION 11.3 Default on Senior Indebtedness and/or Designated Senior
Indebtedness.
Anything contained in this Indenture to the contrary notwithstanding, no
payment on account of principal of or premium, if any, or interest on, or other
amounts due on the Notes (including without limitation the making of a deposit
pursuant to Section 3.6 or 4.6), and no redemption, repurchase, or other
acquisition of the Notes, shall be made by or on behalf of the Company unless:
(a) full payment of all amounts then due for principal of and interest on,
and of all other amounts then due on, all Senior Indebtedness has been made
pursuant to the terms of the instruments governing such Senior Indebtedness; and
(b) at the time for, and immediately after giving effect to, such payment,
redemption, repurchase or other acquisition, there shall not exist under any
Senior Indebtedness, or any agreement pursuant to which any Senior Indebtedness
is issued, any default which shall not have been cured or waived and which
default shall have resulted in the full amount of such Senior Indebtedness being
declared due and payable.
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In addition, if the Trustee shall receive written notice from the holders of
Designated Senior Indebtedness or their Representative (a "Payment Blockage
Notice") that there has occurred and is continuing under such Designated Senior
Indebtedness, or any agreement pursuant to which such Designated Senior
Indebtedness is issued, any default, which default shall not have been cured or
waived, giving the holders of such Designated Senior Indebtedness the right to
declare such Designated Senior Indebtedness immediately due and payable, then,
anything contained in this Indenture to the contrary notwithstanding, no payment
on account of the principal of or premium, if any, or interest on or any other
amounts due on the Notes (including, without limitation, the making of a deposit
pursuant to Section 3.6 or 4.6), and no redemption, repurchase or other
acquisition of the Notes, shall be made by or on behalf of the Company during
the period (the "Payment Blockage Period") commencing on the date of receipt of
the Payment Blockage Notice and ending 179 days thereafter (or earlier if such
Payment Blockage Period is terminated by written notice to the Trustee and the
Company from the Person or Persons who gave such Payment Blockage Notice;
(i) because the default giving rise to such Payment Blockage Notice is no
longer continuing; or
(ii) because such Designated Senior Indebtedness has been repaid in full in
cash or Cash Equivalents).
Notwithstanding the provisions described in the immediately preceding sentence
(but subject to the provisions contained in Section 11.1 and the first sentence
of this Section 11.3), unless the holders of such Designated Senior Indebtedness
or the Representative of such holders shall have accelerated the maturity of
such Designated Senior Indebtedness, the Company may resume payments on the
Notes after the end of such Payment Blockage Period. Not more than one Payment
Blockage Notice may be given in any consecutive 365-day period, irrespective of
the number of defaults with respect to Senior Indebtedness during such period,
except that if any Blockage Notice is delivered to the Trustee by or on behalf
of holders of Designated Senior Indebtedness other than holders of the Bank
Indebtedness, a Representative of holders of Bank Indebtedness may give another
Blockage Notice within such period; provided, however, in no event may the total
number of days during which any Payment Blockage Period or Periods is in effect
exceed 179 days in the aggregate during any consecutive 360-day period, and
there must be 181 days during any consecutive 360-day period during which no
Payment Blockage Period is in effect.
SECTION 11.4 Acceleration of Notes.
In the event of the acceleration of the Notes because of an Event of
Default, the Company may not make any payment or distribution to the Trustee or
any holder of Notes in respect of Obligations with respect to Notes and may not
acquire or purchase from the Trustee or any holder of Notes any Notes until all
Senior Indebtedness has been paid in full in cash or other payment satisfactory
to the holders of Senior Indebtedness or such acceleration is rescinded in
accordance with the terms of this Indenture.
If payment of the Notes is accelerated because of an Event of Default
(other than an Event of Default with respect to the Company specified in clauses
(g) and (h) of Section 6.1), the
51
Company shall promptly notify holders of Senior Indebtedness (including Bank
Indebtedness) or trustee(s) of such Senior Indebtedness before the acceleration.
SECTION 11.5 When Distribution Must Be Paid Over.
In the event that the Trustee, any holder of Notes or any other person
receives any payment or distribution of assets of the Company of any kind with
respect to the Notes in contravention of any terms contained in this Indenture,
whether in cash, property or securities, including, without limitation, by way
of set-off or otherwise, then such payment or distribution shall be held by the
recipient in trust for the benefit of holders of Senior Indebtedness, and shall
be immediately paid over and delivered to the holders of Senior Indebtedness or
their representative(s), to the extent necessary to make payment in full in cash
or other payment satisfactory to such holders of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or distribution
or provision therefor, to or for the holders of Senior Indebtedness; provided,
that the foregoing shall apply to the Trustee only if a Trust Officer of the
Trustee has actual knowledge (as determined in accordance with Section 11.11)
that such payment or distribution is prohibited by this Indenture.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform only such obligations on the part of the Trustee as are specifically
set forth in this Article 11, and no implied covenants or obligations with
respect to the holders of Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Indebtedness, and shall not be liable to any such
holders if the Trustee shall pay over or distribute to or on behalf of holders
of Notes or the Company or any other person money or assets to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article 11, except if
such payment is made as a result of the willful misconduct or gross negligence
of the Trustee.
SECTION 11.6 Notice by Company.
The Company shall promptly notify the Trustee of any facts known to the
Company that would cause a payment of any Obligations with respect to the Notes
or the purchase of any Notes by the Company to violate this Article, but failure
to give such notice shall not affect the subordination of the Notes to the
Senior Indebtedness as provided in this Article.
SECTION 11.7 Subrogation.
After all Senior Indebtedness is paid in full and until the Notes are paid
in full, holders of Notes shall be subrogated (equally and ratably with all
other indebtedness pari passu with the Notes) to the rights of holders of Senior
Indebtedness to receive distributions applicable to Senior Indebtedness to the
extent that distributions otherwise payable to the holders of Notes have been
applied to the payment of Senior Indebtedness. A distribution made under this
Article to holders of Senior Indebtedness that otherwise would have been made to
holders of Notes is not, as between the Company and holders of Notes, a payment
by the Company on the Notes.
52
SECTION 11.8 Relative Rights.
This Article defines the relative rights of holders of Notes and holders of
Senior Indebtedness. Nothing contained in this Indenture shall:
(1) impair, as between the Company and holders of Notes, the obligation of
the Company, which is absolute and unconditional, to pay principal of or
premium, if any, and interest on the Notes in accordance with their terms;
(2) affect the relative rights of holders of Notes and creditors (other
than with respect to Senior Indebtedness) of the Company, other than their
rights in relation to holders of Senior Indebtedness; or
(3) prevent the Trustee or any holder of Notes from exercising its
available remedies upon a Default or Event of Default, subject to the notice
requirements of Section 6.2 and to the rights of holders and owners of Senior
Indebtedness to receive distributions and payments otherwise payable to holders
of Notes.
If the Company fails because of this Article to pay principal of, premium,
if any, or interest on a Note on the due date, the failure is still a Default or
Event of Default.
SECTION 11.9 Subordination May Not Be Impaired by Company.
No right of any holder of Senior Indebtedness to enforce the subordination
of the indebtedness evidenced by the Notes shall be impaired by any act or
failure to act by the Company or any holder of Notes or by the failure of the
Company or any such holder to comply with this Indenture.
SECTION 11.10 Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness, the distribution may be made and the notice given to their
Representative(s).
Upon any payment or distribution of assets of the Company referred to in
this Article 11, the Trustee and the holders of Notes shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other person making any distribution to the Trustee or to the holders of Notes
for the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
11.
SECTION 11.11 Rights of Trustee and Paying Agent.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Notes. Notwithstanding the provisions of this Article
11 or any other provision of this Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts that would prohibit
53
the making of any payment or distribution by the Trustee (other than pursuant to
Section 11.4), and the Trustee may continue to make payments on the Notes,
unless a Trust Officer shall have received at least two business days prior to
the date of such payment or distribution written notice of facts that would
cause such payment or distribution with respect to the Notes to violate this
Article. Only the Company or a Representative may give the notice.
Nothing contained in this Article 11 shall impair the claims of, or
payments to, the Trustee under or pursuant to Section 7.7 hereof.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights.
SECTION 11.12 Authorization to Effect Subordination.
Each holder of a Note by the holder's acceptance thereof authorizes and
directs the Trustee on the holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 11, and appoints the Trustee to act as the holder's attorney-in-fact for
any and all such purposes. If the Trustee does not file a proper proof of claim
or proof of debt in the form required in any proceeding referred to in Section
6.9 hereof at least 30 days before the expiration of the time to file such
claim, the holders of any Senior Indebtedness or their Representatives are
hereby authorized to file an appropriate claim for and on behalf of the holders
of the Notes.
SECTION 11.13 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee; provided, however, that the
second and third paragraphs of Section 11.11 shall not apply to the Company or
any subsidiary of the Company if it or such subsidiary acts as Paying Agent.
SECTION 11.14 Senior Indebtedness Entitled to Rely.
The holders of Senior Indebtedness shall have the right to rely upon this
Article 11, and no amendment or modification of the provisions contained herein
shall diminish or adversely affect the rights of such holders unless such
holders and, if the Existing Credit Facility is then outstanding, the Designated
Senior Lender, shall have agreed in writing thereto.
SECTION 11.15 Permitted Payments.
Notwithstanding anything to the contrary contained in this Article 11, the
holders of Notes may receive and retain at any time on or prior to the Maturity
Date (i) securities that are subordinated to at least the same extent as the
Notes to (a) Senior Indebtedness and (b) any securities issued in exchange for
Senior Indebtedness and (ii) payments and other distributions made from any
trust created pursuant to Section 8.1 hereof; provided, however, that no amounts
shall be deposited with the Trustee in trust pursuant to Section 8.1 hereof if
all Designated Senior
54
Indebtedness has not been paid in full in cash or, if the Existing Credit
Facility is then outstanding, the Designated Senior Lender has not given prior
written approval of such deposit.
SECTION 11.16 No Waiver of Subordinated Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company,
or by any non-compliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the holders of the Notes, without
incurring responsibility to the holders of the Notes and without impairing or
releasing the subordination provided in this Article or the obligations
hereunder of the holders of the Notes to the holders of Senior Indebtedness, do
any one or more of the following: (i) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii)
release any person liable in any manner for the collection of Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company and any other person.
ARTICLE 12
CONVERSION OF NOTES
SECTION 12.1 Right to Convert.
Subject to and upon compliance with the provisions of this Indenture, each
holder of Notes shall have the right, at his or her option, at any time on or
before the close of business on the last Trading Day prior to the Maturity Date
(except that (a) with respect to any Note or portion thereof which is called for
redemption prior to such date, such right will terminate, except as provided in
the fourth paragraph of Section 12.2, at the close of business on the last
Trading Day prior to the date fixed for redemption (unless the Company defaults
in payment of the Redemption Price in which case the conversion right will
terminate at the close of business on the date such default is cured) and (b)
with respect to any Note or portion thereof subject to a duly completed election
for repurchase, such right shall terminate not later than 5:00 p.m., New York
City time, on the last Trading Day prior to the Fundamental Change Payment Date
(unless the Company defaults in the payment due upon repurchase or such holder
elects to withdraw the submission of such election to repurchase in accordance
with section 4.6) to convert the principal amount of any Note held by such
holder, or any portion of such principal amount which is $1,000 or integral
multiples thereof, into that number of fully paid and non-assessable shares of
Class A Common Stock (as such shares shall then be constituted) obtained by
dividing the principal amount of the Note or portion thereof to be converted by
the Conversion Price in effect at such time, by surrender of the Note so to be
converted in whole or in part in the manner
55
provided in Section 12.2. Notes in respect of which a holder has delivered a
Fundamental Change repurchase notice exercising the option of such holder to
require the Company to repurchase such Notes may be converted only if the
Fundamental Change repurchase notice is withdrawn in accordance with the terms
of this Indenture. A holder of Notes is not entitled to any rights of a holder
of shares of Class A Common Stock until such holder of Notes has converted his
or her Notes to shares of Class A Common Stock, and only to the extent such
Notes are deemed to have been converted to shares of Class A Common Stock under
this Article 12.
SECTION 12.2 Exercise of Conversion Privilege; Issuance of Shares of Class A
Common Stock on Conversion; No Adjustment for Interest or
Dividends.
To exercise, in whole or in part, the conversion privilege with respect to
any Note, the holder of such Note shall surrender such Note, duly endorsed, at
an office or agency maintained by the Company pursuant to Section 4.4,
accompanied by the funds, if any, required by the final paragraph of this
Section 12.2 and a duly signed and completed written notice of conversion in the
form provided on the Notes (or such other notice which is acceptable to the
Company) to the office or agency that the holder of Notes elects to convert such
Note or such portion thereof specified in said notice. Such notice shall also
state the name or names (with address or addresses) in which the certificate or
certificates for shares of Class A Common Stock which are issuable on such
conversion shall be issued, and shall be accompanied by transfer taxes, if
required pursuant to Section 12.7. Each such Note surrendered for conversion
shall, unless the shares issuable on conversion are to be issued in the same
name as the registration of such Note, be duly endorsed by, or be accompanied by
instruments of transfer in form satisfactory to the Company duly executed by,
the holder of Notes or his or her duly authorized attorney. The holder of such
Notes will not be required to pay any tax or duty which may be payable in
respect of the issue or delivery of shares of Class A Common Stock on
conversion, but will be required to pay any tax or duty which may be payable in
respect of any transfer involved in the issue or delivery of shares of Class A
Common Stock in a name other than the same name as the registration of such
Note. The date on which the holder of Notes satisfies each of the requirements
provided in this paragraph shall be referred to as the "Conversion Date."
As promptly as practicable after satisfaction of the requirements for
conversion set forth above, the Company shall issue and shall deliver to such
holder at the office or agency maintained by the Company for such purpose
pursuant to Section 4.4, (1) a certificate or certificates for the number of
full shares of Class A Common Stock issuable upon the conversion of such Note
and (2) a check or cash in an amount calculated pursuant to Section 12.3 in
respect of any fractional interest in respect of a share of Class A Common Stock
arising upon such conversion no later than the tenth business day after the
Conversion Date.
Certificates representing shares of Class A Common Stock will not be issued
or delivered unless all taxes and duties, if any, payable by the holder have
been paid. In case any Note of a denomination of integral multiples greater than
$1,000 is surrendered for partial conversion, the Company shall execute, and the
Trustee shall authenticate and deliver to the holder of the Note so surrendered,
without charge to him or her, a new Note or Notes in authorized denominations in
an aggregate principal amount equal to the unconverted portion of the
surrendered Note.
56
Each conversion shall be deemed to have been effected as to any such Note
(or portion thereof) on the applicable Conversion Date, and the person in whose
name any certificate or certificates for shares of Class A Common Stock are
issuable upon such conversion shall be deemed to have become on the applicable
Conversion Date the holder of record of the shares represented thereby;
provided, however, that any such surrender on any date when the Company's stock
transfer books are closed shall constitute the person in whose name the
certificates are to be issued as the record holder thereof for all purposes on
the next succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date upon which
such Note is surrendered.
Any Note or portion thereof surrendered for conversion during the period
from the close of business on a Regular Record Date for any interest payment
through the close of business on the last Trading Day immediately preceding such
Interest Payment Date shall (unless such Note or portion thereof being converted
has been called for redemption pursuant to a notice of redemption mailed by the
Company to the holders in accordance with the provisions of Section 3.4) be
accompanied by payment, in funds acceptable to the Company, of an amount equal
to the interest otherwise payable on such Interest Payment Date on the principal
amount being converted; provided, however, that no such payment need be made if
there exists at the time of conversion a default in the payment of interest on
the Notes. An amount equal to such payment shall be paid by the Company on such
Interest Payment Date to the holder of such Note at the close of business on
such Regular Record Date; provided, however, that if the Company defaults in the
payment of interest or on such Interest Payment Date, such amount shall be paid
to the person who made such required payment. Except as provided above in this
Section 12.2, no adjustment shall be made for interest accrued on any Note
converted or for dividends on any shares issued upon the conversion of such Note
as provided in this Article 12.
SECTION 12.3 Cash Payments in Lieu of Fractional Shares.
No fractional shares of Class A Common Stock or scrip representing
fractional shares shall be issued upon conversion of Notes. If more than one
Note shall be surrendered for conversion at one time by the same holder, the
number of full shares which shall be issuable upon conversion shall be computed
on the basis of the aggregate principal amount of the Notes (or specified
portions thereof to the extent permitted hereby) so surrendered for conversion.
If any fractional share of Class A Common Stock otherwise would be issuable upon
the conversion of any Note or Notes, the Company shall make an adjustment
therefor in cash based upon the Current Market Price of the Class A Common Stock
on the last Trading Day prior to the Conversion Date.
SECTION 12.4 Conversion Price.
The conversion price shall be as specified in Paragraph 16 of the form of
the Note attached hereto as Exhibit A, subject to adjustment as provided in
Section 12.5.
SECTION 12.5 Adjustment of Conversion Price.
The Conversion Price shall be adjusted from time to time by the Company as
follows:
57
(a) If the Company shall hereafter pay a dividend or make a distribution to
all holders of the outstanding shares of Class A Common Stock in shares of Class
A Common Stock, the Conversion Price in effect at the opening of business on the
date following the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be reduced by multiplying such
Conversion Price by a fraction of which the numerator shall be the number of
shares of Class A Common Stock outstanding at the close of business on the
Record Date (as defined in Section 12.5(g)) fixed for such determination and the
denominator shall be the sum of such number of shares of Class A Common Stock
and the total number of shares of Class A Common Stock constituting such
dividend or other distribution, such reduction to become effective immediately
after the opening of business on the day following the Record Date. If any
dividend or distribution of the type described in this Section 12.5(a) is
declared but not so paid or made, the Conversion Price shall again be adjusted
to the Conversion Price which would then be in effect if such dividend or
distribution had not been declared.
(b) If the outstanding shares of Class A Common Stock shall be subdivided
into a greater number of shares of Class A Common Stock, the Conversion Price in
effect at the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately reduced, and, conversely,
if the outstanding shares of Class A Common Stock shall be combined into a
smaller number of shares of Class A Common Stock, the Conversion Price in effect
at the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately increased, such reduction
or increase, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such subdivision or
combination becomes effective.
(c) If the Company shall issue rights or warrants to all or substantially
all holders of its outstanding shares of Class A Common Stock entitling such
holders to subscribe for or purchase shares of Class A Common Stock at a price
per share less than the Current Market Price (as defined in Section 12.5(g)) of
Class A Common Stock on the Record Date fixed for the determination of
stockholders entitled to receive such rights or warrants, the Conversion Price
shall be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect at the opening of business on the
date after such Record Date by a fraction of which the numerator shall be the
number of shares of Class A Common Stock outstanding at the close of business on
the Record Date plus the number of shares of Class A Common Stock which the
aggregate offering price of the total number of shares of Class A Common Stock
so offered for subscription or purchase would purchase at such Current Market
Price, and of which the denominator shall be the number of shares of Class A
Common Stock outstanding on the close of business on the Record Date plus the
total number of additional shares of Class A Common Stock so offered for
subscription or purchase. Such adjustment shall become effective immediately
after the opening of business on the day following the Record Date fixed for
determination of stockholders entitled to receive such rights or warrants. To
the extent that shares of Class A Common Stock are not delivered pursuant to
such rights or warrants, upon the expiration or termination of such rights or
warrants, the Conversion Price shall be readjusted to be the Conversion Price
which would then be in effect had the adjustments made upon the issuance of such
rights or warrants been made on the basis of delivery of only the number of
shares of Class A Common Stock actually delivered. If such rights or warrants
are not so issued, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such date fixed for the
determination of stockholders entitled to receive such rights or
58
warrants had not been fixed. In determining whether any rights or warrants
entitle the holders to subscribe for or purchase shares of Class A Common Stock
at less than such Current Market Price, and in determining the aggregate
offering price of such shares of Class A Common Stock, there shall be taken into
account any consideration received for such rights or warrants, with the value
of such consideration, if other than cash, to be determined by the Board of
Directors.
(d) (1) If the Company shall, by dividend or otherwise, distribute to all
holders of its Class A Common Stock evidences of its indebtedness, cash or other
assets (including securities, but excluding (i) any rights or warrants of a type
referred to in Section 12.5(c), (ii) dividends and distributions paid
exclusively in cash and (iii) dividends and distributions of the type described
in Section 12.5(d)(2) below), then, in each such case, the Conversion Price
shall be reduced so that the same shall be equal to the price determined by
multiplying the Conversion Price in effect at the opening of business on the
date after the Record Date with respect to such distribution by a fraction of
which the numerator shall be the Current Market Price (determined as provided in
Section 12.5(g)) of the Class A Common Stock on such date less the fair market
value (as determined by the Board of Directors, whose determination shall be
conclusive and described in a resolution of the Board of Directors) on such date
of the portion of the indebtedness, cash or other assets so distributed
applicable to one share of Class A Common Stock and the denominator shall be
equal to the Current Market Price of the Class A Common Stock, such reduction to
become effective immediately prior to the opening of business on the day
following the Record Date; provided, however, that in the event the then Current
Market price minus the fair market value (as so determined) of the portion of
the indebtedness, cash or other assets so distributed applicable to one share of
Class A Common Stock is equal to or greater than the Current Market Price of
Class A Common Stock on the Record Date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each holder of Notes shall have the
right to receive upon conversion of a Note (or any portion thereof) the amount
of indebtedness, cash or other assets such holder would have received had such
holder converted such Note (or portion thereof) immediately prior to such Record
Date. If such dividend or distribution is not so paid or made, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such dividend or distribution had not been declared. If the Board of
Directors determines the fair market value of any distribution for purposes of
this Section 12.5(d)(1) by reference to the actual or when issued trading market
for any securities comprising all or part of such distribution, it must in doing
so consider the prices in such market over the same period used in computing the
Current Market Price of the Class A Common Stock pursuant to Section 12.5(g) to
the extent possible.
(2) If the Company shall, by dividend or otherwise, distribute to all
holders of its Class A Common Stock shares of any class of Capital Stock of the
Company or any of its subsidiaries or business units (other than (i) any
dividends or distributions to which Section 12.5(a) applies and (ii) rights and
warrants of a type referred to in Section 12.5(c)), then in each such case, the
Conversion Price shall be reduced so that the same shall be equal to the price
determined by multiplying the Conversion Price then in effect by a fraction the
numerator of which shall be the Current Market Price (determined as defined
below) of the Class A Common Stock and the denominator of which shall be the sum
of (A) the fair market value of the portion of the Capital Stock so distributed
applicable to one share of Class A Common Stock plus (B) such Current Market
Price, such reduction to become effective immediately prior to the opening of
business on the day following the tenth trading day after the date on which
"ex-dividend trading"
59
commences for the applicable dividend or distribution on the New York Stock
Exchange, the Nasdaq National Market or such other regional exchange or market
on which the Class A Common Stock is then listed or quoted.
For purposes of this Section 12.5(d)(2) only:
"fair market value" of the Capital Stock to be distributed to holders of
Class A Common Stock means the average of the closing prices (as defined in
Section 12.5(g)) of each share of such Capital Stock for the first ten Trading
Days after the date on which "ex-dividend trading" commences for the applicable
dividend or distribution on the New York Stock Exchange, the Nasdaq National
Market or such other regional exchange or market on which the Class A Common
Stock is then listed or quoted.
"Current Market Price" of the Class A Common Stock means the average of the
closing prices (as defined in Section 12.5(g)) of the Class A Common Stock for
the first ten trading days (as defined in Section 12.5(g)) after the date on
which "ex-dividend trading" commences for the applicable dividend or
distribution on the New York Stock Exchange, the Nasdaq National Market or such
other regional exchange or market on which the Class A Common Stock is then
listed or quoted.
In the event the Company elects to make a distribution described in the (c)
or (d) above, the Company will be required to give notice to the Holders of the
Notes at least 10 Business Days before the ex-dividend date for such
distribution and, upon the giving of such notice, the Notes may be surrendered
for conversion at any time until the close of business on the Business Day
before the ex-dividend date or until the Company announces that such
distribution will not take place.
Rights or warrants distributed by the Company to all holders of Class A
Common Stock entitling the holders thereof to subscribe for or purchase shares
of the Company's Capital Stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified
event or events ("Trigger Event"): (i) are deemed to be transferred with such
shares of Class A Common Stock; (ii) are not exercisable; and (iii) are also
issued in respect of future issuances of shares of Class A Common Stock, shall
be deemed not to have been distributed for purposes of this Section 12.5(d) (and
no adjustment to the Conversion Price under this Section 12.5(d) shall be
required) until the occurrence of the earliest Trigger Event, whereupon such
rights and warrants shall be deemed to have been distributed and an appropriate
adjustment to the Conversion Price under this Section 12.5(d) shall be made. If
any such rights or warrants, including any such existing rights or warrants
distributed prior to the date of this Indenture, are subject to subsequent
events, upon the occurrence of each of which such rights or warrants shall
become exercisable to purchase different securities, evidences of indebtedness
or other assets, then the occurrence of each such event shall be deemed to be
such date of issuance and record date with respect to new rights or warrants
(and a termination or expiration of the existing rights or warrants without
exercise by the holder thereof). In addition, in the event of any distribution
(or deemed distribution) of rights or warrants, or any Trigger Event with
respect thereto, that was counted for purposes of calculating a distribution
amount for which an adjustment to the Conversion Price under this Section 12.5
was made, (1) in the case of any such rights or warrants
60
which shall all have been redeemed or repurchased without exercise by any
holders thereof, the Conversion Price shall be readjusted upon such final
redemption or repurchase to give effect to such distribution or Trigger Event,
as the case may be, as though it were a cash distribution, equal to the per
share redemption or repurchase price received by a holder or holders of Class A
Common Stock with respect to such rights or warrants (assuming such holder had
retained such rights or warrants), made to all holders of Class A Common Stock
as of the date of such redemption or repurchase, and (2) in the case of such
rights or warrants which shall have expired or been terminated without exercise
by any holders thereof, the Conversion Price shall be readjusted as if such
rights and warrants had not been issued.
For purposes of Sections 12.5(a) and (c) and this Section 12.5(d), any
dividend or distribution to which this Section 12.5(d) is applicable that also
includes shares of Class A Common Stock, or rights or warrants to subscribe for
or purchase shares of Class A Common Stock to which Section 12.5(c) applies (or
both), shall be deemed instead to be (1) a dividend or distribution of the
evidences of indebtedness, assets, shares of capital stock, rights or warrants
other than such shares of Class A Common Stock or rights or warrants to which
Section 12.5(c) applies (and any Conversion Price reduction required by this
Section 12.5(d) with respect to such dividend or distribution shall then be
made) immediately followed by (2) a dividend or distribution of such shares of
Class A Common Stock or such rights or warrants (and any further Conversion
Price reduction required by Sections 12.5(a) and (c) with respect to such
dividend or distribution shall then be made, except that (A) the Record Date of
such dividend or distribution shall be substituted as "the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution", "Record Date fixed for such determination" and "Record Date"
within the meaning of Section 12.5(a) and as "the date fixed for the
determination of stockholders entitled to receive such rights or warrants", "the
Record Date fixed for the determination of the stockholders entitled to receive
such rights or warrants" and "such Record Date" within the meaning of Section
12.5(c) and (B) any shares of Class A Common Stock included in such dividend or
distribution shall not be deemed "outstanding at the close of business on the
date fixed for such determination" within the meaning of Section 12.5(a)).
(e) If the Company shall, by dividend or otherwise, distribute cash to all
holders of its Class A Common Stock and/or Class B Common Stock (excluding any
cash that is distributed upon a merger or consolidation to which Section 12.6
applies or as part of a distribution referred to in Section 12.5(d)) in an
aggregate amount that, when combined together with (1) the aggregate amount of
any other such all-cash distributions to all holders of its Common Stock within
the 12 months preceding the date of payment of such distribution, and in respect
of which no adjustment pursuant to this Section 12.5(e) has been made, and (2)
the aggregate of any cash plus the fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors) of consideration payable in respect of any
tender offer by the Company or any of its subsidiaries for all or any portion of
the Class A Common Stock and/or Class B Common Stock concluded within the 12
months preceding the date of payment of such distribution, and in respect of
which no adjustment pursuant to Section 12.5(f) has been made, exceeds 10% of
the sum of (i) the product of (x) the Current Market Price (determined as
provided in Section 12.5(g)) of the Class A Common Stock on the Record Date with
respect to such distribution times (y) the number of shares of Class A Common
Stock outstanding on such date plus (ii) the product of (x) the Current Market
Price (determined as provided in Section 12.5(g)) of the Class B Common Stock on
the Record Date
61
with respect to such distribution times (y) the number of shares of Class B
Common Stock outstanding on such date, then, and in each such case, immediately
after the close of business on such date, the Conversion Price shall be reduced
so that it shall equal the price determined by multiplying the Conversion Price
in effect at the opening of business on the date after such Record Date by a
fraction (i) the numerator of which shall be equal to the Current Market Price
(determined as provided in Section 12.5(g)) of the Class A Common Stock on the
Record Date less an amount equal to the quotient of (x) the excess of such
combined amount over such 10% allocable to the shares of Class A Common Stock
(as determined by the Board of Directors, whose determination shall be
conclusive and set forth in a resolution of the Board of Directors) and (y) the
number of shares of Class A Common Stock outstanding on the Record Date and (ii)
the denominator of which shall be equal to the Current Market Price of the Class
A Common Stock on such Record Date; provided, however, that if the portion of
the cash so distributed applicable to one share of Class A Common Stock is equal
to or greater than the Current Market Price of the Class A Common Stock on the
Record Date, in lieu of the foregoing adjustment, adequate provision shall be
made so that each holder of Notes shall have the right to receive upon
conversion of a Note (or any portion thereof) the amount of cash such holder
would have received had such holder converted such Note (or portion thereof)
immediately prior to such Record Date. If such dividend or distribution is not
so paid or made, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such dividend or distribution
had not been declared.
(f) If a tender offer made by the Company or any of its subsidiaries for
all or any portion of the Class A Common Stock and/or Class B Common Stock
expires and such tender offer (as amended upon the expiration thereof) requires
the payment to stockholders (based on the acceptance (up to any maximum
specified in the terms of the tender offer) of Purchased Shares (as defined
below)) of an aggregate consideration having a fair market value (as determined
by the Board of Directors, whose determination shall be conclusive and described
in a resolution of the Board of Directors) that, when combined together with (1)
the aggregate of the cash plus the fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors), as of the expiration of such tender
offer, of consideration payable in respect of any other tender offers, by the
Company or any of its subsidiaries for all or any portion of the Class A Common
Stock and/or Class B Common Stock, expiring within the 12 months preceding the
expiration of such tender offer and in respect of which no adjustment pursuant
to this Section 12.5(f) has been made and (2) the aggregate amount of any such
all-cash distributions to all holders of Class A Common Stock and/or Class B
Common Stock within 12 months preceding the expiration of such tender offer and
in respect of which no adjustment pursuant to Section 12.5(e) has been made,
exceeds 10% of the sum of (i) the product of (x) the Current Market Price
(determined as provided in Section 12.5(g)) of the Class A Common Stock as of
the last time (the "Expiration Time") tenders could have been made pursuant to
such tender offer (as it may be amended) times (y) the number of shares of Class
A Common Stock outstanding (including any tendered shares) on the date of the
Expiration Time, plus (ii) the product of (x) the Current Market Price
(determined as provided in Section 12.5(g)) of the Class B Common Stock as of
the Expiration Time times (y) the number of shares of Class B Common Stock
outstanding (including any tendered shares) on the date of the Expiration Time,
then, and in each such case, immediately prior to the opening of business on the
day after the date of the Expiration Time, the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying the
62
Conversion Price in effect immediately prior to close of business on the date of
the Expiration Time by a fraction of which the numerator shall be the number of
shares of Class A Common Stock outstanding (including any tendered shares) as of
the Expiration Time multiplied by the Current Market Price of the Class A Common
Stock on the Trading Day next succeeding the Expiration Time and the denominator
shall be the sum of (x) the fair market value (determined as aforesaid) of the
aggregate consideration payable to holders of Class A Common Stock based on the
acceptance (up to any maximum specified in the terms of the tender offer) of all
shares of Class A Common Stock validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares") and (y) the product of the number of
shares of Class A Common Stock outstanding (less any Purchased Shares) on the
date of the Expiration Time and the Current Market Price of the Class A Common
Stock on the Trading Day next succeeding the Expiration Time, such reduction (if
any) to become effective immediately prior to the opening of business on the day
following the Expiration Time. If the Company is obligated to purchase shares
pursuant to any such tender offer, but the Company is permanently prevented by
applicable law from effecting any such purchases or all such purchases are
rescinded, the Conversion Price shall again be adjusted to be the Conversion
Price which would then be in effect if such tender offer had not been made. If
the application of this Section 12.5(f) to any tender offer would result in an
increase in the Conversion Price, no adjustment shall be made for such tender
offer under this Section 12.5(f).
(g) For purposes of this Section 12.5, the following terms shall have the
meaning indicated:
(1) "Class B Common Stock" means any Common Stock of the Company of the
class not designated as Class A Common Stock as of the date of this Indenture.
(2) "closing price" with respect to any securities on any day means the
closing price on such day or, if no such sale takes place on such day, the
average of the reported high and low prices on such day, in each case on the
Nasdaq National Market or New York Stock Exchange, as applicable, or, if such
security is not listed or admitted to trading on such national market or
exchange, on the principal national securities exchange or quotation system on
which such security is quoted or listed or admitted to trading, or, if not
quoted or listed or admitted to trading on any national securities exchange or
quotation system, the average of the high and low prices of such security on the
over-the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similar generally accepted reporting
service, or, if not so available, in such manner as furnished by any New York
Stock Exchange member firm selected from time to time by the Board of Directors
for that purpose, or a price determined in good faith by the Board of Directors,
whose determination shall be conclusive and described in a resolution of the
Board of Directors.
(3) "Current Market Price" means the average of the daily closing prices
per share of Class A Common Stock or Class B Common Stock, as the case may be,
for the 10 consecutive Trading Days preceding the earlier of the day preceding
the day preceding the day in question and the day before the "ex date";
provided, however, that if another event occurs that would require an adjustment
pursuant to this Section 12.5, the Board of Directors may make such adjustment
to the closing prices during such ten Trading Day period as it deems appropriate
to
63
effectuate the intent of the adjustments in this Section 12.5, in which case any
such determination by the Board of Directors shall be set forth in a Board
Resolution and shall be conclusive. For purposes of any computation under
Section 12.5(f), the Current Market Price on any date shall be deemed to be the
average of the daily closing prices per share of Class A Common Stock or Class B
Common Stock, as the case may be, for such day and the next two succeeding
Trading Days; provided, however, that if another event occurs that would require
an adjustment pursuant to this Section 12.5, the Board of Directors may make
such adjustment to the closing prices during such ten Trading Day period as it
deems appropriate to effectuate the intent of the adjustments in this Section
12.5, in which case any such determination by the Board of Directors shall be
set forth in a Board Resolution and shall be conclusive. For purposes of this
paragraph, the term "ex" date, (1) when used with respect to any issuance or
distribution, means the first date on which the shares of Class A Common Stock,
trade regular way on the relevant exchange or in the relevant market from which
the closing price was obtained without the right to receive such issuance or
distribution, (2) when used with respect to any subdivision or combination of
shares of Class A Common Stock or Class B Common Stock, as the case may be,
means the first date on which the shares of Class A Common Stock or Class B
Common Stock trade regular way on such exchange or in such market after the time
at which such subdivision or combination becomes effective, and (3) when used
with respect to any tender or exchange offer means the first date on which the
shares of Class A Common Stock or Class B Common Stock, as the case may be,
trade regular way on such exchange or in such market after the Expiration Time
of such offer. Notwithstanding the foregoing, whenever successive adjustments to
the Conversion Price are (or, in the case of the Class B Common Stock, would be)
called for pursuant to this Section 12.5, such adjustments shall be made to the
applicable Current Market Price as may be necessary or appropriate to effectuate
the intent of this Section 12.5 and to avoid unjust or inequitable results as
determined in good faith by the Board of Directors.
(4) "fair market value" shall mean the amount which a willing buyer would
pay a willing seller in an arm's length transaction.
(5) "Record Date" shall mean, with respect to any dividend, distribution or
other transaction or event in which the holders of Class A Common Stock or Class
B Common Stock, as the case may be, have the right to receive any cash,
securities or other property or in which the shares of Class A Common Stock or
Class B Common Stock (or other applicable security) are exchanged for or
converted into any combination of cash, securities or other property, the date
fixed for determination of stockholders entitled to receive such cash,
securities or other property (whether such date is fixed by the Board of
Directors or by statute, contract or otherwise).
(h) The Company may make such reductions in the Conversion Price, in
addition to those required by Sections 12.5(a), (b), (c), (d), (e) and (f), as
the Board of Directors considers to be advisable to avoid or diminish any income
tax to holders of Class A Common Stock or rights to purchase shares of Class A
Common Stock resulting from any dividend or distribution of stock (or rights to
acquire stock) or from any event treated as such for income tax purposes.
The Company from time to time may, to the extent permitted by law, reduce
the Conversion Price by any amount for any period of at least 20 days, if the
Board of Directors has made a determination that such reduction would be in the
Company's best interests, which determination shall be conclusive and described
in a resolution of the Board of Directors. The
64
reduction in Conversion Price shall be irrevocable during this period. Whenever
the Conversion Price is reduced pursuant to the preceding sentence, the Company
shall mail to the each holder of Notes at his or her last address appearing on
the Register a notice of the reduction at least 15 days prior to the date the
reduced Conversion Price takes effect, and such notice shall state the reduced
Conversion Price and the period during which it will be in effect.
(i) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% of the
Conversion Price then in effect; provided, however, that any adjustments which
by reason of this Section 12.5(i) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Article 12 shall be made by the Company and shall be made to the
nearest cent or to the nearest one hundredth of a share, as the case may be.
No adjustment need be made for a change in the par value or no par value of
the Class A Common Stock.
(j) Whenever the Conversion Price is adjusted as herein provided, the
Company shall promptly file with the Trustee and any Conversion Agent other than
the Trustee an Officers' Certificate setting forth the Conversion Price after
such adjustment and setting forth a brief statement of the facts requiring such
adjustment. Promptly after delivery of such certificate, the Company shall
prepare a notice of such adjustment of the Conversion Price setting forth the
adjusted Conversion Price and the date on which each adjustment becomes
effective and shall mail such notice of such adjustment of the Conversion Price
to each holder of Notes at his or her last address appearing on the Register of
holders maintained for that purpose within 20 days of the effective date of such
adjustment. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.
(k) In any case in which this Section 12.5 provides that an adjustment
shall become effective immediately after a Record Date for an event, the Company
may defer until the occurrence of such event issuing to the holder of any Note
converted after such Record Date and before the occurrence of such event the
additional shares of Class A Common Stock issuable upon such conversion by
reason of the adjustment required by such event over and above the shares of
Class A Common Stock issuable upon such conversion before giving effect to such
adjustment.
(l) For purposes of this Section 12.5, the number of shares of Class A
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Class A Common Stock. The
Company shall not pay any dividend or make any distribution on shares of Class A
Common Stock held in the treasury of the Company.
SECTION 12.6 Effect of Reclassification, Consolidation, Merger or Sale.
If any of the following events occur:
(i) any reclassification or change of the outstanding shares of Class
A Common Stock (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);
65
(ii) any consolidation, merger or combination of the Company with another
corporation as a result of which holders of Class A Common Stock shall be
entitled to receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such shares of Class A Common Stock; or
(iii) any sale or conveyance of the properties and assets of the Company as
an entirety or substantially as an entirety to any other corporation as a result
of which holders of Class A Common Stock shall be entitled to receive stock,
securities or other property or assets (including cash) with respect to or in
exchange for such Class A Common Stock,
then the Company or the successor or purchasing corporation, as the case may be,
shall execute with the Trustee a supplemental indenture (which shall comply with
the TIA as in force at the date of execution of such supplemental indenture if
such supplemental indenture is then required to so comply) providing that the
Notes shall be convertible into the kind and amount of shares of stock and other
securities or property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination, sale or conveyance
by a holder of a number of shares of Class A Common Stock issuable upon
conversion of the Notes (assuming, for such purposes, a sufficient number of
authorized shares of Class A Common Stock available to convert all such Notes)
immediately prior to such reclassification, change, consolidation, merger,
combination, sale or conveyance, assuming such holder of shares of Class A
Common Stock did not exercise his or her rights of election, if any, as to the
kind or amount of securities, cash or other property receivable upon such
consolidation, merger, sale or conveyance (provided that, if the kind or amount
of securities, cash or other property receivable upon such consolidation,
merger, sale or conveyance is not the same for each share of Class A Common
Stock in respect of which such rights of election have not been exercised
("non-electing share"), then, for the purposes of this Section 12.6, the kind
and amount of securities, cash or other property receivable upon such
consolidation, merger, sale or conveyance for each non-electing share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non-electing shares). Such supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article 12. If, in the case of any such reclassification,
change, consolidation, merger, combination, sale or conveyance, the stock or
other securities and assets receivable thereupon by a holder of Class A Common
Stock includes shares of stock or other securities and assets of a corporation
other than the successor or purchasing corporation, as the case may be, in such
reclassification, change, consolidation, merger, combination, 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 shall reasonably
consider necessary by reason of the foregoing.
In the case of any reclassification, change, consolidation, merger,
combination or sale or conveyance to which this Section 12.6 applies in which
the Class A Common Stock of the Company is changed or exchanged into the right
to receive stock, securities or other property or assets (including cash) which
includes shares of common stock of the Company or another person that are, or
upon issuance will be, traded on a United States national securities exchange or
approved for trading on an established automated over-the-counter trading market
in the United States and such shares constitute at the time such change or
exchange becomes effective in excess of 90% of the aggregate fair market value
of such stock, securities or other property
66
and assets (including cash) (as determined by the Company, which determination
shall be conclusive and binding), then the Company or the person formed by such
consolidation or resulting from such merger which acquires such assets, as the
case may be, shall execute and deliver to the Trustee a supplemental indenture
(which shall comply with the TIA as in force at the date of execution of such
supplemental indenture) modifying the provisions of this Indenture relating to
the right of holders of Notes to cause the Company to repurchase Notes following
a Fundamental Change, including the applicable provisions of Section 4.6 and the
definitions of Fundamental Change, Change of Control and Termination of Trading,
as appropriate, as determined in good faith by the Company (which determination
shall be conclusive and binding), to make such provision apply to such common
stock and the issuer thereof if different from the Company and Common Stock of
the Company (in lieu of the Company and the Common Stock of the Company).
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Notes at his or her address appearing
on the Register within 20 days after execution thereof. Failure to deliver such
notice shall not affect the legality or validity of such supplemental indenture.
The above provisions of this Section 12.6 shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
sales and conveyances.
If this Section 12.6 applies to any event or occurrence, Section 12.5 shall
not apply.
SECTION 12.7 Taxes on Shares Issued.
The issue of stock certificates on conversions of Notes shall be made
without charge to the converting holder for any tax in respect of the issue
thereof. The Company shall not, however, be required to pay any tax which may be
payable in respect of any transfer involved in the issue and delivery of stock
in any name other than that of the holder of any Note converted, and the Company
shall not be required to issue or deliver any such stock certificate unless and
until the person or persons requesting the issue thereof shall have paid to the
Company the amount of such tax or shall have established to the satisfaction of
the Company that such tax has been paid.
SECTION 12.8 Reservation of Shares; Shares to Be Fully Paid; Listing of Class A
Common Stock.
The Company shall provide, free from preemptive rights, out of its
authorized but unissued shares or shares held in treasury, sufficient shares to
provide for the conversion of the Notes from time to time as such Notes are
presented for conversion.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the shares of Class A
Common Stock issuable upon conversion of the Notes, the Company shall take all
corporate action which may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue such shares of Class A Common
Stock at such adjusted Conversion Price.
67
The Company covenants that all shares of Common Stock issued upon
conversion of Notes will be fully paid and non-assessable by the Company and
free from all taxes, liens and charges with respect to the issue thereof.
The Company further covenants that as long as the Class A Common Stock is
listed on the New York Stock Exchange, or its successor, the Company shall cause
all shares of Class A Common Stock issuable upon conversion of the Notes to be
eligible for such listing in accordance with, and at the times required under,
the requirements of such market, and if at any time the Class A Common Stock
becomes quoted on the Nasdaq National Market or listed on any other national
securities exchange, the Company shall cause all shares of Class A Common Stock
issuable upon conversion of the Notes to be so quoted or listed and kept so
quoted or listed.
SECTION 12.9 Responsibility of Trustee.
The Trustee shall not at any time be under any duty of responsibility to
any holders of Notes to determine whether any facts exist which may require any
adjustment of the Conversion Price, or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making the same. The Trustee shall not be accountable with respect to the
validity or value (or the kind or amount) of any shares of Class A Common Stock
or Class B Common Stock, or of any securities or property, which may at any time
be issued or delivered upon the conversion of any Note; and the Trustee makes no
representations with respect thereto. Subject to the provisions of Section 7.1,
the Trustee shall not be responsible for any failure of the Company to issue,
transfer or deliver any shares of Common Stock or stock certificates or other
securities or property or cash upon the surrender of any Note for the purpose of
conversion or to comply with any of the duties, responsibilities or covenants of
the Company contained in this Article 12. Without limiting the generality of the
foregoing, the Trustee shall not have any responsibility to determine the
correctness of any provisions contained in any supplemental indenture entered
into pursuant to Section 12.6 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 event referred to in such Section
12.6 or to any adjustment to be made with respect thereto, but, subject to the
provisions of Section 7.1, may accept as conclusive evidence of the correctness
of any such provisions, and shall be protected in relying upon, the Officers'
Certificate and Opinion of Counsel (which the Company shall be obligated to file
with the Trustee prior to the execution of any such supplemental indenture) with
respect thereto.
SECTION 12.10 Notice to Holders Prior to Certain Actions.
If:
(a) the Company declares a dividend (or any other distribution) on its
Class A Common Stock and/or Class B Common Stock (other than in cash out of
retained earnings or other than a dividend that results in an adjustment in the
Conversion Price pursuant to Section 12.5 as to which the Company has made an
election in accordance with Section 12.5(m)); or
68
(b) the Company authorizes the granting to all or substantially all of the
holders of its Class A Common Stock and/or Class B Common Stock of rights or
warrants to subscribe for or purchase any share of Class A Common Stock or Class
B Common Stock or any other rights or warrants (other than rights or warrants
referred to in the second paragraph of Section 12.5(d)); or
(c) there is any reclassification of the Class A Common Stock or Class B
Common Stock (other than a subdivision or combination of outstanding shares of
Class A Common Stock or Class B Common Stock, or a change in par value, or from
par value to no par value, or from no par value to par value), or 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 transfer of all
or substantially all of the assets of the Company; or
(d) there is any voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
then the Company shall cause to be filed with the Trustee and to be mailed to
each holder of Notes at his or her address appearing on the Register maintained
for that purpose as promptly as possible but in any event at least 15 days prior
to the applicable date hereinafter specified, a notice stating (x) the date on
which a record is to be taken for the purpose of such dividend, distribution or
rights or warrants, or, if a record is not to be taken, the date as of which the
holders of Class A Common Stock and/or Class B Common Stock of record to be
entitled to such dividend, distribution or rights are to be determined, or (y)
the date on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up is expected to become effective or occur,
and the date as of which it is expected that holders of Class A Common Stock
and/or Class B Common Stock of record shall be entitled to exchange their shares
of Class A Common Stock or Class B Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up.
69
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed and attested, all as of the date first above written, signifying their
agreements contained in this Indenture.
AGERE SYSTEMS INC.
By: /s/ Xxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Executive Vice President and Chief
Financial Officer
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Treasurer
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EXHIBIT A
(Face of Note)
[Global Securities Legend]
[The following legend shall appear on the face of each Global Security:
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A
NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND
ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS NOTE FOR ALL PURPOSES.]
[The following legend shall appear on the face of each Global Security for
which The Depository Trust Company is to be the Depositary:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY THE AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR REGISTERED NOTES
IN DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED TO IN THE
INDENTURE, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OR SUCH SUCCESSOR
DEPOSITARY.]
A-1
No. _______ $_________
CUSIP: 00000XXX0
AGERE SYSTEMS INC.
6.5% CONVERTIBLE SUBORDINATED NOTE DUE 2009
Agere Systems Inc., a Delaware corporation (the "Company," which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ___________________, or its registered
assigns, the principal sum of ________________ U.S. Dollars ($__________), or
such other principal amount as shall be set forth on the Schedule of Increases
or Decreases attached hereto, on December 15, 2009.
Interest Payment Dates: June 15 and December 15, commencing December 15,
2002
Regular Record Dates: June 1 and December 1.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed manually or by facsimile by its duly authorized Officer.
AGERE SYSTEMS INC.
Dated: June 19, 2002
By:
----------------------
Title:
Trustee's Certificate of Authentication
This is one of the 6.5% Convertible Subordinated Notes due 2009 described in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------
Authorized Signatory
Dated: June 19, 2002
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(Back of Security)
AGERE SYSTEMS INC.
6.5% CONVERTIBLE SUBORDINATED NOTE DUE 2009
Capitalized terms used herein but not defined shall have the meaning
assigned to them in the Indenture referred to below unless otherwise indicated.
1. Interest. Agere Systems Inc., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note at the
rate per annum shown above. The Company will pay interest
semi-annually in arrears on June 15 and December 15 of each year,
beginning December 15, 2002. Interest on the Notes will accrue from
the most recent interest payment date to which interest has been paid
or, if no interest has been paid, from June 19, 2002. Interest will be
computed on the basis of a 360-day year composed of twelve 30-day
months.
2. Method of Payment. The Company will pay interest on the Notes (except
defaulted interest) to the person in whose name each Note is
registered at the close of business on the June 1 or December 1
immediately preceding the relevant interest payment date (each a
"Regular Record Date") (other than with respect to a Note or portion
thereof called for redemption on a Redemption Date, or repurchased in
connection with a Fundamental Change on a Fundamental Change Payment
Date, during the period from the close of business on a Regular Record
Date to (but excluding) the next succeeding Interest Payment Date, in
which case accrued interest shall be payable (unless such Note or
portion thereof is converted) to the holder of the Note or portion
thereof redeemed or repurchased in accordance with the applicable
redemption or repurchase provisions of the Indenture). The holder must
surrender Notes to a Paying Agent to collect principal payments. The
Company will pay the principal of, and premium, if any, and interest
on, the Notes at the office or agency of the Company maintained for
such purpose, in money of the United States that at the time of
payment is legal tender for payment of public and private debts. Until
otherwise designated by the Company, the Company's office or agency
maintained for such purpose will be the principal Corporate Trust
Office of the Trustee (as defined below). However, the Company may pay
principal, premium, if any, and interest by check payable in such
money, and may mail such check to the holders of the Notes at their
respective addresses as set forth in the Register of holders of Notes.
3. Paying Agent and Registrar. The Bank of New York (together with any
successor Trustee under the Indenture referred to below, the
"Trustee"), will act as Paying Agent and Registrar. The Company may
change the Paying Agent, Registrar or co-registrar without prior
notice. Subject to certain limitations in the Indenture, the Company
or any of its subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture dated as of
June 19, 2002 (the "Indenture") by and between the Company and the
Trustee. The
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terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S. Code 'SS''SS' 77aaa-77bbbb) (the "TIA") as in effect
on the date of the Indenture. The Notes are subject to, and qualified
by, all such terms, certain of which are summarized hereon, and
holders are referred to the Indenture and the TIA for a statement of
such terms. The Notes are general unsecured subordinated obligations
of the Company limited to (except as otherwise provided in the
Indenture) $410,000,000 in aggregate principal amount, unless an
election has been made as set forth in Article 2 of the Indenture to
increase such aggregate principal amount to an amount not to exceed
$450,812,000. Capitalized terms not defined below have the same
meaning as is given them in the Indenture.
5. Optional Redemption. On or after June 20, 2007, the Company may redeem
the Notes at its option in cash, in whole or from time to time in part
during the following periods at the following Redemption Prices
expressed as percentages of the principal amount:
Period Redemption Price
------ ----------------
Beginning on June 20, 2007 and ending on June 14, 2008... 102.17%
Beginning on June 15, 2008 and ending on June 14, 2009... 101.30%
Beginning on June 15, 2009 and thereafter................ 100.43%
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the Redemption Date to each
holder of Notes to be redeemed at his or her registered address. Notes
in denominations larger than $1,000 may be redeemed in part but only
in integral multiples of $1,000. If less than all Notes are to be
redeemed, the Trustee shall select the Notes to be redeemed by a
method that complies with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or quoted,
or, if the Notes are not so listed, on a pro rata basis, by lot or by
any other method that the Trustee considers fair and appropriate. On
and after the Redemption Date, interest ceases to accrue on Notes or
portions thereof called for redemption (unless the Company defaults in
the payment of the Redemption Price). If this Note is redeemed on a
date which is also an Interest Payment Date, the interest payment due
on such date will be paid to the person in whose name this Note is
registered at the close of business on the relevant Regular Record
Date.
6. Fundamental Change. Upon the occurrence of a Fundamental Change, the
Company shall make a Fundamental Change Offer to repurchase in cash
all outstanding Notes at a price equal to 100% of the aggregate
principal amount of the Notes, plus accrued and unpaid interest up to,
but not including, the Fundamental Change Payment Date, such offer to
be made as provided in the Indenture. To accept the Fundamental Change
Offer, the holder hereof must comply with the terms thereof, including
surrendering this Note, with the "Option of Holder to Elect
Repurchase" portion hereof completed, to the Company, a depositary, if
appointed by the Company, or a Paying Agent, at the address specified
in the notice of the Fundamental Change Offer mailed to holders as
provided in the Indenture, prior to termination of the Fundamental
Change Offer.
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7. Subordination. The Company's payment of the principal of, or premium,
if any, and interest on, the Notes is subordinated to the prior
payment in full of the Company's Senior Indebtedness as set forth in
the Indenture. Each holder of Notes by his or her acceptance hereof
covenants and agrees that all payments of the principal of, or
premium, if any, and interest on the Notes by the Company shall be
subordinated in accordance with the provisions of Article 11 of the
Indenture, and each holder of Notes accepts and agrees to be bound by
such provisions.
8. Denominations, Transfer and Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. As a condition of transfer,
the Registrar and the Trustee may require a holder, among other
things, to furnish appropriate endorsements and transfer documents,
and the Company and the Registrar may require a holder to pay any
taxes and fees required by law or permitted by the Indenture. The
Company or the Registrar need not exchange or register the transfer of
any Note or portion of a Note submitted for redemption or repurchase.
Also the Company or the Registrar need not exchange or register the
transfer of any Note for a period of 15 days before a selection of
Notes to be redeemed or repurchased.
9. Persons Deemed Owners. The registered holder of a Note may be treated
as its owner for all purposes.
10. Amendments and Waivers. Subject to certain exceptions, the Indenture
or the Notes may be amended or supplemented with the consent of the
holders of at least a majority in principal amount of the then
outstanding Notes, and any existing default may be waived with the
consent of the holders of a majority in principal amount of the then
outstanding Notes.
Without the consent of any holder affected thereby, the Indenture or
the Notes may be amended or supplemented to: (a) cure any ambiguity,
defect or inconsistency or make any other changes in the provisions of
the Indenture which the Company and the Trustee may deem necessary or
desirable, provided such amendment does not materially and adversely
affect the Notes; (b) provide for uncertificated Notes in addition to
or in place of certificated Notes; (c) provide for the assumption of
the Company's obligations to holders of Notes in the circumstances
required under the Indenture as described under Article 5 thereof; (d)
provide for conversion rights of holders of Notes in the event of
consolidation, merger or sale of all or substantially all of the
assets of the Company as required to comply with Section 5.1 of the
Indenture; (e) reduce the Conversion Price; (f) evidence and provide
for the acceptance of the appointment under the Indenture of a
successor Trustee; (g) make any change that would provide any
additional rights or benefits to the holders of Notes or that does not
adversely affect the legal rights under the Indenture of any such
holder; or (h) comply with requirements of the Commission in order to
maintain the qualification of the Indenture under the TIA.
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Without the consent of each holder (in addition to the consent of the
holders of at least a majority in aggregate principal amount of the
then outstanding Notes), an amendment, supplement or waiver may not:
(a) reduce the percentage of aggregate principal amount of Notes whose
holders must consent to an amendment, supplement or waiver; (b) reduce
the rate of, or change the time for payment of, interest, including
defaulted interest, on any Note; (c) reduce the principal of or change
the stated maturity of any Note; (d) except as permitted pursuant to
Section 9.1(a), (d), (g) or (h) of the Indenture, alter the redemption
or repurchase provisions of any Note; (e) waive a Default or Event of
Default in the payment of principal of or premium, if any, or interest
on, the Notes (except a rescission of acceleration of the Notes by the
holders of at least a majority in aggregate principal amount of the
Notes then outstanding and a waiver of the payment default that
resulted from such acceleration); (f) make the principal of or premium
or interest on, any Note payable in money other than as provided for
in the Indenture and in the Notes; (g) make any change in the
provisions of the Indenture relating to waivers of past Defaults or
Events of Default or the rights of holders of Notes to receive
payments of principal of or premium, interest on, the Notes; (h) waive
a payment of the Redemption Price or a Fundamental Change Payment with
respect to any Notes; (i)except as permitted by the Indenture
(including Section 9.1(a)), increase the Conversion Price or modify
the provisions contained herein relating to conversion of the Notes in
a manner adverse to the holders thereof; or (j) make any change to the
abilities of holders of Notes to enforce their rights hereunder or the
provisions of clauses (a) through (i) above.
11. Defaults and Remedies. An Event of Default with respect to any Notes
occurs if: (a) default in payment (whether or not such payment is
prohibited by the subordination provisions of the Indenture) of the
principal of, or premium, if any, or Fundamental Change Payment or
Redemption Price with respect to the Notes, when due at maturity, upon
repurchase or redemption, upon acceleration or otherwise; (b) default
for 30 days or more in payment (whether or not such payment is
prohibited by the subordination provisions of the Indenture) of any
installment of interest on the Notes; (c) failure to provide timely
notice of a Fundamental Change; (d) default by the Company for 60 days
or more after notice in the observance or performance of any other
covenants in the Indenture; (e) one or more defaults in the payment of
principal of or premium, if any, on any Indebtedness within any
applicable grace period after the final scheduled maturity thereof or
the acceleration of any such Indebtedness by the holders thereof
because of a default if the total amount of such Indebtedness unpaid
or accelerated exceeds $100.0 million or its foreign currency
equivalent and such failure continues for 30 days; provided, that this
clause (e) shall not apply to (A) any notice of wind-down or any
comparable notice to be given in connection with a Qualified
Securitization Transaction or (B) any wind-down, or comparable event,
with respect to a Qualified Securitization Transaction; (f) the
Company or any of its Significant Subsidiaries or group of
subsidiaries that, taken together (as of the latest audited
consolidated financial statements for the Company and its
subsidiaries), would constitute a Significant Subsidiary fail to pay
final judgments
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aggregating in excess of $100.0 million (net of any amounts for which
a reputable and creditworthy insurance company is liable, unless such
insurance company has disclaimed such liability in writing), which
judgments are not paid, discharged or stayed for a period of 60 days
following such judgments and none of such judgments has been
discharged, waived or stayed; or (g) certain events involving
bankruptcy, insolvency or reorganization of the Company. If an Event
of Default occurs and is continuing, the Trustee or the holders of at
least 25% in aggregate principal amount of the then outstanding Notes
may declare the unpaid principal of, premium, if any, and accrued and
unpaid interest on, all Notes then outstanding to be due and payable
immediately, except that in the case of an Event of Default arising
from certain events of bankruptcy, insolvency, or reorganization with
respect to the Company, all outstanding Notes become due and payable
without further action or notice. Holders of Notes may not enforce the
Indenture or the Notes except as provided in the Indenture. The
Trustee may require security or indemnity satisfactory to it before it
enforces the Indenture or the Notes. Subject to certain limitations,
holders of at least a majority in aggregate principal amount of the
then outstanding Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from holders notice of any
continuing Default (except a Default in payment of principal, premium,
if any, or interest) if it determines that withholding notice is in
their interests. The Company must furnish annual compliance
certificates to the Trustee.
12. Trustee Dealings with the Company. The Trustee or any of its
Affiliates, in their individual or any other capacities, may make or
continue loans to, accept deposits from and perform services for the
Company or its Affiliates and may otherwise deal with the Company or
its Affiliates as if it were not Trustee.
13. No Recourse Against Others. No director, officer, employee,
stockholder or Affiliate, as such, of the Company shall have any
liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation. Each holder by accepting a Note
waives and releases all such liability. The waiver and release are
part of the consideration for the Notes.
14. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
15. Abbreviations. Customary abbreviations may be used in the name of a
holder or an assignee, such as: TEN CO = 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.
16. Conversion. Subject to and upon compliance with the provisions of the
Indenture, the registered holder of this Note has the right at any
time on or before the close of business on the last Trading Day prior
to the Maturity Date (or in case this Note or any portion hereof (a)
is called for redemption before the close of
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business on the last Trading Day prior to the Redemption Date (unless
the Company Defaults in payment of the Redemption Price in which case
the conversion right will terminate at the close of business on the
date such Default is cured) or (b) is subject to a duly completed
election for repurchase, on or before 5:00 p.m., New York City time,
on the last Trading Day prior to the Fundamental Change Payment Date
(unless the Company defaults in payment due upon repurchase or such
holder elects to withdraw the submission of such election to
repurchase) to convert the principal amount hereof, or any portion of
such principal amount which is $1,000 or integral multiples thereof,
into that number of fully paid and non-assessable shares of Class A
Common Stock obtained by dividing the principal amount of the Note or
portion thereof to be converted by the conversion price of $3.3075 per
share, as adjusted from time to time as provided in the Indenture (the
"Conversion Price"), upon surrender of this Note to the Company at the
office or agency maintained for such purpose (and at such other
offices or agencies designated for such purpose by the Company),
accompanied by written notice of conversion duly executed (and if the
shares of Class A Common Stock to be issued on conversion are to be
issued in any name other than that of the registered holder of this
Note by instruments of transfer, in form satisfactory to the Company,
duly executed by the registered holder or its duly authorized
attorney) and, in case such surrender shall be made during the period
from the close of business on the Regular Record Date immediately
preceding any Interest Payment Date through the close of business on
the last Trading Day immediately preceding such Interest Payment Date,
also accompanied by payment, in funds acceptable to the Company, of an
amount equal to the interest otherwise payable on such Interest
Payment Date on the principal amount of this Note then being
converted. Subject to the aforesaid requirement for a payment in the
event of conversion after the close of business on a Regular Record
Date immediately preceding an Interest Payment Date, no adjustment
shall be made on conversion for interest accrued hereon or for
dividends on shares of Class A Common Stock delivered on conversion.
The right to convert this Note is subject to the provisions of the
Indenture relating to conversion rights in the case of certain
consolidations, mergers or sales or transfers of substantially all the
Company's assets.
The Company shall not issue fractional shares or scrip representing
fractions of shares of Class A Common Stock upon any such conversion,
but shall pay cash in lieu of such fractional shares in the manner
described in the Indenture.
17. Governing Law. The Indenture and the Notes will be governed by, and
construed in accordance with, the laws of the state of New York.
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SCHEDULE OF INCREASES OR DECREASES
The initial principal amount of this Global Security shall be $_____. The
following increases or decreases in the principal amount of this Global Security
have been made:
Principal Amount of
Amount of increase in Amount of decrease in this Global Security
Principal Amount of Principal Amount of following such Signature of authorized
Date of Exchange this Global Security this Global Security increase or decrease officer of Trustee
---------------- --------------------- --------------------- -------------------- -----------------------
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FORM OF CONVERSION NOTICE
To: AGERE SYSTEMS INC.
The undersigned beneficial owner of the Note hereby irrevocably exercises
the option to convert this Note, or portion hereof (which is $1,000 or integral
multiples thereof) below designated, into shares of Class A Common Stock of
Agere Systems Inc. in accordance with the terms of the Indenture referred to in
this Note, and directs that the shares issuable and deliverable upon the
conversion, together with any check in payment for fractional shares and Notes
representing any unconverted principal amount hereof, be issued and delivered to
the beneficial owner hereof unless a different name has been indicated below. If
shares or any portion of this Note not converted are to be issued in the name of
a person other than the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto. Any amount required to be paid by the undersigned
on account of interest and taxes accompanies this Note.
Dated:
Fill in for registration of shares if to be -------------------------------
delivered, and Notes if to be issued, other -------------------------------
than to and in the name of the beneficial
owner -------------------------------
(Please Print): Signature(s)
------------------------------------------- Principal amount to be converted
(Name) (if less than all):
$___,000
-------------------------------------------
(Street Address)
--------------------------------
------------------------------------------- Social Security or other
(City, State and Zip Code) Taxpayer Identification
Number
Signature Guarantee:
-----------------------------------
Signatures must be guaranteed by an eligible Guarantor Institution (banks,
brokers, dealers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program pursuant to
Securities and Exchange Commission Rule 17Ad-15 if shares are to be issued, or
Notes are to be delivered, other than to and in the name of the registered
holder(s).
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________ agent to transfer this Note on
the books of the Company. The agent may substitute another to act for him.
Your Signature:
------------------------------------------------------
(Sign exactly as your name appears on the other side
of this Note)
Date:
-------------------------------
Medallion Signature Guarantee:
-------------------------------------
Your Signature:
------------------------------------------------------
(Sign exactly as your name appears on the other side
of this Note)
Date:
-----------------------------
Medallion Signature Guarantee:
-----------------------------
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OPTION OF HOLDER TO ELECT REPURCHASE
If you wish to have this Note repurchased by the Company pursuant to
Section 4.6 of the Indenture, check the Box: [_]
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 4.6 of the Indenture, state the amount (in multiples of
$1,000): $_____.
Date: Your Signature:
-------------- -------------------------------------
(Sign exactly as your name appears on
the other side of this Convertible
Subordinated Note)
Medallion Signature Guarantee:
--------------------------------------------------
A-13
