EXHIBIT 4.1
EXECUTION COPY
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XXXXXX INTERNATIONAL INC.
8.5% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2010
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INDENTURE
Dated as of October 10, 2003
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Xxxxx Fargo Bank Minnesota, N.A.
Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture Indenture
Act Section Section
--------------- -----------
310(a)(1)......................................................... 9.10
(a)(2)......................................................... 9.10
(a)(3)......................................................... n/a
(a)(4)......................................................... n/a
(a)(5)......................................................... 9.10
(b)............................................................ 9.10
(c)............................................................ n/a
311(a)............................................................ 9.11
(b)............................................................ 9.11
(c)............................................................ n/a
312(a)............................................................ 2.05
(b)............................................................ 12.03
(c)............................................................ 12.03
313(a)............................................................ 9.06
(b)(1)......................................................... n/a
(b)(2)......................................................... 9.06, 9.07
(c)............................................................ 9.06, 12.02
(d)............................................................ 9.06
314(a)............................................................ 6.03
(a)(4)......................................................... 12.05
(b)............................................................ n/a
(c)(1)......................................................... n/a
(c)(2)......................................................... n/a
(c)(3)......................................................... n/a
(d)............................................................ n/a
(e)............................................................ 12.05
(f)............................................................ n/a
315(a)............................................................ n/a
(b)............................................................ n/a
(c)............................................................ n/a
(d)............................................................ n/a
(e)............................................................ n/a
316(a)(last sentence)............................................. n/a
(a)(1)(A)...................................................... n/a
(a)(1)(B)...................................................... n/a
(a)(2)......................................................... n/a
(b)............................................................ 4.7
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(c)............................................................ n/a
317(a)(1)......................................................... n/a
(a)(2)......................................................... n/a
(b)............................................................ n/a
318(a)............................................................ n/a
(b)............................................................ n/a
(c)............................................................ 12.01
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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 this Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions...............................................................................1
Section 1.02. Other Definitions.........................................................................8
Section 1.03. Incorporation by Reference of Trust Indenture Act.........................................9
Section 1.04. Rules of Construction....................................................................10
ARTICLE 2.
THE NOTES
Section 2.01. Form and Dating..........................................................................10
Section 2.02. Execution and Authentication.............................................................11
Section 2.03. Registrar, Paying Agent and Conversion Agent.............................................11
Section 2.04. Paying Agent to Hold Money in Trust......................................................12
Section 2.05. Holder Lists.............................................................................12
Section 2.06. Transfer and Exchange....................................................................12
Section 2.07. Replacement Notes........................................................................13
Section 2.08. Outstanding Notes........................................................................14
Section 2.09. Treasury Notes...........................................................................15
Section 2.10. Temporary Notes..........................................................................15
Section 2.11. Cancellation.............................................................................15
Section 2.12. Additional Transfer and Exchange Requirements............................................15
Section 2.13. CUSIP Numbers............................................................................20
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.......................................................................21
Section 3.02. Selection of Notes to Be Redeemed........................................................21
Section 3.03. Notice of Redemption.....................................................................21
Section 3.04. Effect of Notice of Redemption...........................................................22
Section 3.05. Deposit of Redemption Price..............................................................22
Section 3.06. Notes Redeemed in Part...................................................................23
Section 3.07. Optional Redemption......................................................................23
Section 3.08. Mandatory Redemption; No Sinking Fund....................................................23
ARTICLE 4.
CONVERSION
Section 4.01. Conversion Privilege.....................................................................23
Section 4.02. Conversion Procedure.....................................................................24
Section 4.03. Fractional Shares........................................................................25
Section 4.04. Taxes on Conversion......................................................................25
Section 4.05. Company to Provide Stock.................................................................25
Section 4.06. Adjustment of Conversion Price...........................................................26
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Section 4.07. No Adjustment............................................................................30
Section 4.08. Other Adjustments........................................................................30
Section 4.09. Adjustments for Tax Purposes.............................................................30
Section 4.10. Notice of Adjustment.....................................................................31
Section 4.11. Notice of Certain Transactions...........................................................31
Section 4.12. Effect of Reclassifications, Consolidations, Mergers or Sales on Conversion Privilege....31
Section 4.13. Trustee's Disclaimer.....................................................................32
Section 4.14. Voluntary Reduction......................................................................33
ARTICLE 5.
SUBORDINATION
Section 5.01. Agreement to Subordinate.................................................................33
Section 5.02. Liquidation; Dissolution; Bankruptcy.....................................................33
Section 5.03. Default on Senior Indebtedness...........................................................34
Section 5.04. Acceleration of Notes....................................................................35
Section 5.05. When Distribution Must Be Paid Over......................................................35
Section 5.06. Notice by Company........................................................................35
Section 5.07. Subrogation..............................................................................35
Section 5.08. Relative Rights..........................................................................36
Section 5.09. Subordination May Not Be Impaired by Company.............................................36
Section 5.10. Distribution or Notice to Representative.................................................36
Section 5.11. Rights of Trustee and Paying Agent.......................................................36
Section 5.12. Authorization to Effect Subordination....................................................37
Section 5.13. Payments of Notes Permitted..............................................................37
Section 5.14. Trustee Not Fiduciary for Holders of Senior Indebtedness.................................37
ARTICLE 6.
COVENANTS
Section 6.01. Payment of Notes.........................................................................38
Section 6.02. Maintenance of Office or Agency..........................................................38
Section 6.03. Reports..................................................................................39
Section 6.04. Rule 144A Information Requirement........................................................39
Section 6.05. Compliance Certificate...................................................................39
Section 6.06. Taxes....................................................................................40
Section 6.07. Stay, Extension and Usury Laws...........................................................40
Section 6.08. Corporate Existence......................................................................40
Section 6.09. Offer to Repurchase Upon Change in Control...............................................40
Section 6.10. Payment of Additional Interest...........................................................45
Section 6.11. Limitation on Incurrence of Senior Indebtedness..........................................45
Section 6.12. Limitation on Liens......................................................................45
Section 6.13. Prohibition on Incurrence of Senior Subordinated Debt....................................47
ARTICLE 7.
SUCCESSORS
Section 7.01. Merger, Consolidation, or Sale of Assets.................................................47
Section 7.02. Successor Corporation Substituted........................................................47
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ARTICLE 8.
DEFAULTS AND REMEDIES
Section 8.01. Events of Default........................................................................48
Section 8.02. Acceleration.............................................................................49
Section 8.03. Other Remedies...........................................................................49
Section 8.04. Waiver of Past Defaults..................................................................49
Section 8.05. Control by Majority......................................................................50
Section 8.06. Limitation on Suits......................................................................50
Section 8.07. Rights of Holders of Notes to Receive Payment............................................50
Section 8.08. Collection Suit by Trustee...............................................................51
Section 8.09. Trustee May File Proofs of Claim.........................................................51
Section 8.10. Priorities...............................................................................51
Section 8.11. Undertaking for Costs....................................................................52
ARTICLE 9.
TRUSTEE
Section 9.01. Duties of Trustee........................................................................52
Section 9.02. Rights of Trustee........................................................................53
Section 9.03. Individual Rights of Trustee.............................................................54
Section 9.04. Trustee's Disclaimer.....................................................................55
Section 9.05. Notice of Defaults.......................................................................55
Section 9.06. Reports by Trustee to Holders of the Notes...............................................55
Section 9.07. Compensation and Indemnity...............................................................55
Section 9.08. Replacement of Trustee...................................................................56
Section 9.09. Successor Trustee by Merger, etc.........................................................57
Section 9.10. Eligibility; Disqualification............................................................57
Section 9.11. Preferential Collection of Claims Against Company........................................58
ARTICLE 10.
SATISFACTION AND DISCHARGE
Section 10.01. Satisfaction and Discharge...............................................................58
Section 10.02. Application of Trust Money; Reinstatement................................................59
Section 10.03. Repayment to Company.....................................................................59
ARTICLE 11.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 11.01. Without Consent of Holders of Notes......................................................60
Section 11.02. With Consent of Holders of Notes.........................................................60
Section 11.03. Compliance with Trust Indenture Act......................................................62
Section 11.04. Revocation and Effect of Consents........................................................62
Section 11.05. Notation on or Exchange of Notes.........................................................62
Section 11.06. Trustee to Sign Amendments, etc..........................................................63
ARTICLE 12.
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.............................................................63
Section 12.02. Notices..................................................................................63
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Section 12.03. Communication by Holders of Notes with Other Holders of Notes............................64
Section 12.04. Certificate and Opinion as to Conditions Precedent.......................................64
Section 12.05. Statements Required in Certificate or Opinion............................................65
Section 12.06. Rules by Trustee and Agents..............................................................65
Section 12.07. No Personal Liability of Directors, Officers, Employees and Shareholders.................65
Section 12.08. Governing Law............................................................................65
Section 12.09. No Adverse Interpretation of Other Agreements............................................65
Section 12.10. Successors...............................................................................66
Section 12.11. Severability.............................................................................66
Section 12.12. Counterparts.............................................................................66
Section 12.13. Table of Contents, Headings, etc.........................................................66
EXHIBITS
Exhibit A FORM OF GLOBAL NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF RESTRICTIVE LEGEND FOR SHARES OF BENEFICIAL INTEREST ISSUED
UPON CONVERSION OF NOTES
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INDENTURE dated as of October 10, 2003, between Xxxxxx International Inc.,
a Washington business trust (the "Company"), and Xxxxx Fargo Bank Minnesota,
N.A., a national banking association organized and existing under the laws of
the United States, as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of the Holders of the 8.5% Convertible
Senior Subordinated Notes due 2010 (the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"144A Global Note" means a Global Note substantially in the form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the Depositary or
its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold on the date hereof or transferred or
exchanged, in each case, in reliance on Rule 144A.
"Additional Interest" means all Additional Interest, if any, at the time of
determination pursuant to Section 3 of the Registration Rights Agreement.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise. The terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or Conversion Agent.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Note, the rules and procedures of the
Depositary, Euroclear and Clearstream that apply to such transfer or exchange.
"Bankruptcy Law" means Title 11, U.S. Code, the Bankruptcy and Insolvency
Act (Canada), the Companies' Creditors Arrangement Act (Canada) or any similar
U.S. or Canadian federal, state or provincial law for the relief of debtors.
"Board of Trustees" means the board of trustees of the Company, or any duly
authorized committee of such board.
"Business Day" means any day other than a Legal Holiday.
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"Canadian Legend" means the legend set forth in Exhibit A hereto to be
placed on all Notes issued under this Indenture in reliance on Rule 903 of
Regulation S, except where otherwise permitted by the provisions of this
Indenture.
"Capital Stock" means any and all shares, interests, participations, rights
or other equivalents (however designated) of corporate stock (but excluding any
debt security that is convertible into, or exchangeable for, Capital Stock),
including, without limitation, with respect to partnerships, partnership
interests (whether general or limited) , and including, with respect to business
trusts, shares of beneficial interest therein, and any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, such partnership or trust.
"Clearstream" means Clearstream Banking, SA.
"Closing Sale Price" for any date means the last reported sale price or, in
case no such reported sale takes place on such date, the average of the reported
closing bid and asked prices in either case on NASDAQ or, if the Shares of
Beneficial Interest are not then listed or admitted to trading on NASDAQ, on the
principal national securities exchange on which the Shares of Beneficial
Interest are then listed or admitted to trading or, if not listed or admitted
to trading on NASDAQ or any national securities exchange, the last reported
sale price of the Shares of Beneficial Interest as quoted on NASDAQ or, in
case no reported sale takes place, the average of the closing bid and asked
prices as quoted on NASDAQ or any comparable system or, if the Shares of
Beneficial Interest is not quoted on NASDAQ or any comparable system, the
closing sale price or, in case no reported sale takes place, the average of
the closing bid and asked prices, as furnished by any two members of the
National Association of Securities Dealers, Inc. selected from time to time
by the Company for that purpose.
"Company Request" or "Company Order" means a written request or direction
from the Company to the Trustee signed by two Officers of the Company.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 12.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Custodian" means the Trustee, as custodian with respect to the Global
Notes or any successor entity thereto.
"Default" means any event that is or with the passage of time or the giving
of notice or both would be an Event of Default.
"Definitive Note" means a certificated Note registered in the name of the
Holder thereof and issued in accordance with Sections 2.06 and 2.12 hereof,
substantially in the form of Exhibit A hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to any Global Notes, the Person specified
in Section 2.03 hereof as the Depositary with respect to such Global Notes, and
any and all successors
2
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Designated Senior Indebtedness" means any Senior Indebtedness existing as
of the date of this Indenture or in which the instrument creating or evidencing
the Indebtedness, or any related agreements or documents to which the Company is
a party, expressly provides that such Indebtedness is "Designated Senior
Indebtedness" for purposes of this Indenture (provided that the instrument,
agreement or other document creating or evidencing the Indebtedness may place
limitations and conditions on the right of the Senior Indebtedness to exercise
the rights of Designated Senior Indebtedness).
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the Euroclear
system, and any and all successors thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect from time to time, including those principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect from time to time.
"Global Notes" means, individually and collectively, each of the Restricted
Global Notes and the Unrestricted Global Notes, substantially in the form of
Exhibit A hereto issued in accordance with this Indenture.
"Global Note Legend" means the legend set forth in Exhibit A hereto, which
is required to be placed on all Global Notes issued under this Indenture.
"Government Securities" means direct Obligations of, or Obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"Hedging Obligations" means, with respect to any Person, the Obligations of
such Person, contingent or otherwise, with respect to an interest rate, currency
or other swap, cap, floor or collar agreement or hedge agreement, forward
contract or other similar instrument or agreement or foreign currency hedge,
exchange, purchase or similar instrument or agreement, provided that such
hedging is not incurred primarily for speculative purposes as determined in good
faith by the Board of Trustees.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, without duplication:
(i) all indebtedness, obligations and other liabilities, contingent or
otherwise, (A) for borrowed money, including overdrafts, foreign exchange
contracts, currency exchange agreements, interest rate protection
agreements, and any loans or advances
3
from lenders, whether or not evidenced by notes or similar instruments, or
(B) evidenced by credit or loan agreements, bonds, notes, debentures or
similar instruments, whether or not the recourse of the lender is to the
whole of the assets of the Company or to only a portion thereof, other than
any account payable or other accrued current liability or obligation
incurred in the ordinary course of business in connection with the
obtaining of materials or services;
(ii) all reimbursement obligations and other liabilities, contingent
or otherwise, with respect to letters of credit, bank guarantees or
bankers' acceptances;
(iii) all obligations and liabilities, contingent or otherwise, in
respect of (A) leases required, in conformity with GAAP, to be accounted
for as capitalized lease obligations on the Company's balance sheet, or (B)
under other leases for facilities, equipment or related assets, whether or
not capitalized, entered into or leased for financing purposes;
(iv) all obligations and other liabilities, contingent or otherwise,
under any lease or related document, including a purchase agreement,
conditional sale or other title retention agreement, in connection with the
lease of real property or improvements thereon (or any personal property
included as part of any such lease) which provides that we are
contractually obligated to purchase or cause a third party to purchase
the leased property or pay an agreed upon residual value of the leased
property, including the Company's obligations under such lease or
related document to purchase or cause a third party to purchase such
leased property or pay an agreed upon residual value of the leased
property to the lessor;
(v) all Hedging Obligations;
(vi) all direct or indirect guaranties or similar agreements by the
Company in respect of, and all of the Company's obligations or liabilities
to purchase or otherwise acquire or otherwise assure a creditor against
loss in respect of, indebtedness, obligations or liabilities of another
person of the kinds described in clauses (i) through (v);
(vii) all indebtedness of others secured by a lien on any of the
Company's assets (whether or not such indebtedness is assumed by the
Company); and
(viii) any and all deferrals, renewals, extensions, refinancings and
refundings of, or amendments, modifications or supplements to, any
indebtedness, obligation or liability of the kinds described in clauses (i)
through (vii).
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Indirect Participant" means a Person who holds a beneficial interest in a
Global Note through a Participant.
"Insolvency or Bankruptcy Proceeding" means any insolvency or bankruptcy
proceedings, or any receivership, liquidation, reorganization or other similar
proceedings relative to the Company or to the property of the Company or the
assets of the Company, or in the event
4
of any proceedings for voluntary liquidation, dissolution or other winding-up of
the Company whether or not involving insolvency or bankruptcy, or any
marshalling of the assets and liabilities of the Company.
"Interest Payment Date" has the meaning specified in paragraph 1 of the
Note, attached as Exhibit A hereto.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or in Vancouver, British Columbia or at a
place of payment are authorized by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue on such payment for the intervening period.
"NASD" means the National Association of Securities Dealers.
"NASDAQ" means the Nasdaq National Market.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Notes" has the meaning assigned to it in the preamble to this Indenture.
"Obligations" means any principal, premium, interest, penalties, fees,
indemnifications, reimbursements, fees and expenses, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Offering" means the offering of the Notes by the Company.
"Officer" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Financial Officer, the
Treasurer, or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the Company
by two Officers of the Company, one of whom must be the Chief Executive Officer,
the Chief Financial Officer, or the Treasurer of the Company, that meets the
requirements of Section 12.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section 12.05 hereof.
The counsel may be an employee of or counsel to the Company, any Subsidiary of
the Company or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"Permitted Junior Securities" means Shares of Beneficial Interest or debt
securities that are subordinated to all Senior Indebtedness (and any debt
securities issued in exchange for Senior Indebtedness) to substantially the same
extent as, or to a greater extent than, the Notes are subordinated to Senior
Indebtedness as set forth in this Indenture.
5
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or agency or political subdivision thereof (including
any subdivision or ongoing business of any such entity).
"Private Placement Legend" means the legend set forth on Exhibit A hereto
to be placed on all Notes issued under this Indenture, except where otherwise
permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of October 10, 2003, by and among the Company and the initial purchaser
named on the signature pages thereof, as such agreement may be amended, modified
or supplemented from time to time.
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Regulation S Global Note" means a permanent global note substantially in
the form of the Global Note attached hereto as Exhibit A bearing the Global Note
Legend and the Private Placement Legend or the Canadian Legend and deposited
with or on behalf of, and registered in the name of, the Depositary or its
nominee issued in a denomination equal to the outstanding principal amount of
the Notes sold on the date hereof in reliance on Regulation S.
"Representative" means this Indenture trustee or other trustee, agent or
representative for any Senior Indebtedness.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Office of the Trustee (or any successor group
of the Trustee) with direct responsibilities for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the Private
Placement Legend and/or the Canadian Legend.
"Restricted Global Note" means a Global Note bearing the Private Placement
Legend and/or the Canadian Legend.
"Restricted Period" means the "one-year distribution compliance" period
within the meaning of Rule 903(b)(3)(iii) of Regulation S.
"Rule 144" means Rule 144 under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
6
"Rule 903" means Rule 903 under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 904" means Rule 904 under the Securities Act (or any successor
provision), as it may be amended from time to time.
"SEC" means the Securities and Exchange Commission or any successor
thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" with respect to the Company means the principal of,
premium, if any, interest (including any interest accruing after the
commencement of any bankruptcy or similar proceeding, whether or not a claim for
post-petition interest is allowed as a claim in the proceeding), and rent
payable on or in connection with, and all fees, costs, expenses and other
amounts accrued or due on or in connection with, Indebtedness of the Company
whether secured or unsecured, absolute or contingent, due or to become due,
outstanding on the date of this Indenture or thereafter created, incurred,
assumed, guaranteed or in effect guaranteed by the Company, including all
deferrals, renewals, extensions or refundings of, or amendments, modifications
or supplements to, the foregoing. Senior indebtedness does not include: (i)
indebtedness that expressly provides that such Indebtedness shall not be senior
in right of payment to the Notes or expressly provides that such Indebtedness is
pari passu or junior to the Notes; (ii) any Indebtedness to any of the Company's
Subsidiaries, other than Indebtedness to the Company's Subsidiaries arising by
reason of guarantees by the Company of Indebtedness of such Subsidiary to a
Person that is not a Subsidiary of the Company; (iii) any Indebtedness of or
amounts owed by the Company for compensation to employees of the Company, for
goods or materials purchased by the Company in the ordinary course of business,
or for services; (iv) any liability for federal, state or local taxes or other
taxes, owed or owing by the Company; (v) the portion of any Indebtedness that is
incurred in violation of this Indenture; and (vi) the Notes issued pursuant to
this Indenture.
"Shares of Beneficial Interest" means the shares of beneficial interest,
par value $1.00 per share, of the Company, as they exist on the date of this
indenture or any other shares of Capital Stock of the Company into which the
Shares of Beneficial Interest shall be reclassified or changed.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary of the Company that would be
a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Exchange Act, as such Regulation is in effect on the
date of this Indenture.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person or a combination
thereof.
7
"TIA" means the Trust Indenture Act of 1939 as in effect on the date on
which this Indenture is qualified under the TIA; provided, however, that in the
event the Trust Indenture Act of 1939 is amended after such date, "TIA" means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as
so amended.
"Trading Day" means:
(1) if the Shares of Beneficial Interest are quoted on NASDAQ, a day on
which trades may be made on NASDAQ; or
(2) if the Shares of Beneficial Interest are not so listed, admitted for
trading or quoted, any day other than a Saturday or Sunday or a day on which
banking institutions in the State of New York are authorized or obligated by
law, executive order or otherwise to close.
"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 serving hereunder.
"Unrestricted Definitive Note" means one or more Definitive Notes that do
not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent Global Note substantially in
the form of Exhibit A attached hereto that bears the Global Note Legend and that
has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing Notes that do not bear the Private Placement
Legend.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"Voting Stock" means any class or classes of Capital Stock or other
interests then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of the board of
directors, managers or trustees.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
all the outstanding Capital Stock or other ownership interests of which (other
than directors' qualifying shares) shall at the time be owned by such Person or
by one or more Wholly Owned Subsidiaries of such Person or by such Person and
one or more Wholly Owned Subsidiaries of such Person.
Section 1.02. Other Definitions.
Defined in
Term Section
---- ----------
"beneficial owner" 6.09
"Change in Control" ............................................... 6.09
"Change in Control Offer".......................................... 6.09
"Change in Control Payment"........................................ 6.09
"Change in Control Payment Date"................................... 6.09
8
Defined in
Term Section
---- ----------
"Change in Control Payment Notice"................................. 6.09
"Conversion Agent" ................................................ 2.03
"Conversion Date" ................................................. 4.02
"Conversion Price" ................................................ 4.01
"Current Market Price" ............................................ 4.06(g)
"DTC" ............................................................. 2.03
"Event of Default"................................................. 8.01
"Expiration Date" ................................................. 4.06
"Expiration Time" ................................................. 4.06
"Interest Payment" ................................................ 12.14
"Paying Agent"..................................................... 2.03
"Permitted Liens" ................................................. 6.12
"Purchased Shares" ................................................ 4.06
"Registrar"........................................................ 2.03
"Restricted Definitive Note" ...................................... 2.12(e)(i)
"Restricted Global Note" .......................................... 2.12(e)(i)
"Rights Plan(s)"................................................... 4.06
"tender offer" .................................................... 4.06
"Transfer Certificate" ............................................ 2.12(e)(i)
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"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 and any successor obligor upon the
Notes.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA have
the meanings so assigned to them.
9
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it
in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural include the
singular;
(e) provisions apply to successive events and transactions; and
(f) references to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement or successor sections or rules adopted
by the SEC from time to time.
ARTICLE 2.
THE NOTES
Section 2.01. Form and Dating.
(a) General. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be in minimum denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture and the Company and the Trustee,
by their execution and delivery of this Indenture, and each Holder by its
acceptance of the Notes, expressly agree to such terms and provisions and to be
bound thereby. However, to the extent any provision of any Note conflicts with
the express provisions of this Indenture, the provisions of this Indenture shall
govern and be controlling.
(b) Global Notes. Notes issued in global form shall be substantially in the
form of Exhibit A attached hereto (including the Global Note Legend thereon and
the "Schedule of Exchanges of Interests in the Global Note" attached thereto).
Notes issued in definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Each
Global Note shall represent such of the outstanding Notes as shall be specified
therein and each shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Notes
10
represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.12 hereof.
(c) Euroclear and Clearstream Procedures Applicable. 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 transfers of beneficial
interests in the Regulation S Global Notes that are held by Participants through
Euroclear or Clearstream.
None of the Company, the Trustee or any Paying Agent will be responsible or
liable for (a) any records relating to or payments made on account of beneficial
interests in a Global Note or (b) maintaining, supervising or reviewing any
records relating to such beneficial interests.
Section 2.02. Execution and Authentication.
An Officer shall sign 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 a 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.
Subject to the satisfaction of any conditions set forth herein, the Trustee
shall, upon a Company Order, authenticate Notes for original issue in the
aggregate principal amount of $82,500,000. The aggregate principal amount of
Notes outstanding at any time may not exceed $82,500,000 except as provided in
Section 2.07 hereof.
The Trustee shall act as initial authenticating agent. Thereafter, the
Trustee may, with the consent of the Company, appoint an authenticating agent
acceptable to the Company to authenticate Notes at the Company's expense. An
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such Agent. An authenticating agent has the same rights as an
Agent to deal with Holders or an Affiliate of the Company.
Section 2.03. Registrar, Paying Agent and Conversion Agent.
The Company shall maintain or cause to be maintained an office or agency
where Notes may be presented for registration of transfer or for exchange (the
"Registrar"), an office or agency where Notes may be presented for payment (the
"Paying Agent") and an office or agency where Notes may be presented for
conversion (the "Conversion Agent"). The Registrar shall keep a register of the
Notes and of their registration of transfer and exchange. The Company may
appoint one or more co-registrars and one or more additional paying agents and
conversion agents. The term "Registrar" includes any co-registrar, the term
"Paying Agent" includes any additional paying agent and the term "Conversion
Agent" includes any additional conversion agent. The Company may change any
Paying Agent, Conversion Agent or Registrar without notice to any Holder. The
Company shall notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture. If the Company fails to appoint or maintain
another
11
entity as Registrar, Paying Agent or Conversion Agent, the Trustee hereby agrees
to act as such. The Company or any of its Subsidiaries may act as Paying Agent,
Conversion Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar, Paying
Agent and Conversion Agent and to act as Custodian with respect to the Global
Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
Prior to 11:00 a.m., New York City time, on each due date of the principal
of, premium, if any, or interest (including Additional Interest) on any Notes,
the Company shall deposit with the Paying Agent a sum sufficient to pay such
principal, premium, if any, or interest (including Additional Interest) so
becoming due. The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium if any, or interest (including Additional Interest) on the
Notes, and will notify the Trustee of any Default by the Company in making any
such payment. While any such Default continues, the Trustee may require a Paying
Agent to pay all money 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 any such money. If the
Company or a Subsidiary of the Company acts as Paying Agent, it shall before
12:30 p.m., New York City time, on each due date of the principal of, premium,
if any, or interest (including Additional Interest), segregate and hold in a
properly established separate trust fund for the benefit of the Holders all
money held by it as Paying Agent. Upon any Insolvency or Bankruptcy Proceedings
relating to the Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05. 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
all Holders and shall otherwise comply with TIA Section 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 at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA Section 312(a).
Section 2.06. Transfer and Exchange.
(a) Subject to compliance with any applicable additional requirements
contained in Section 2.12, when a Note is presented to the Registrar with a
request to register a transfer thereof or to exchange such Note for an equal
principal amount of Notes of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested; provided, however, that
every Note presented or surrendered for registration of transfer or exchange
shall be duly endorsed or accompanied by an assignment form and, if applicable,
a
12
transfer certificate each in the form included in Exhibit A, and in form
satisfactory to the Registrar duly executed by the Holder thereof or its
attorney duly authorized in writing. To permit registration of transfers and
exchanges, upon surrender of any Note for registration of transfer or exchange
at an office or agency maintained pursuant to Section 2.03, the Company shall
execute and the Trustee shall authenticate Notes of a like aggregate principal
amount at the Registrar's request. Any exchange or registration of transfer
shall be without charge, except that the Company or the Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto; provided that this sentence shall not apply
to any exchange pursuant to Section 2.07, 2.10, 2.12(a), 3.06, 4.02 (last
paragraph), 6.09(a)(10), or 11.05.
Neither the Company, any Registrar nor the Trustee shall be required to
exchange or register a transfer of (a) any Notes for a period of 15 days next
preceding any mailing of a notice of Notes to be redeemed, (b) any Notes or
portions thereof selected or called for redemption (except, in the case of
redemption of a Note in part, the portion not to be redeemed) or (c) any Notes
or portions thereof in respect of which a Note has been delivered to the Trustee
and not withdrawn by the Holder thereof (except, in the case of the purchase of
a Note in part, the portion not to be purchased).
All Notes issued upon any registration of transfer or exchange of Notes
shall be 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) Any Registrar appointed pursuant to Section 2.03 hereof shall provide
to the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Notes upon registration of
transfer or exchange of Notes.
Any Holder of a Global Note shall, by acceptance of such Global Note, agree
that transfers of a beneficial interest in such Global Note may be effected only
through a book-entry system maintained by (i) the Holder of such Global Note (or
its agent), (ii) any Holder of a beneficial interest in such Global Note or
(iii) DTC or any Participant, and that ownership of a beneficial interest in
such Global Note shall be required to be reflected in a book-entry.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on registration of transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or among
Participants or other beneficial owners of interests in any Global Note) other
than to require delivery of such certificates and other documentation or
evidence as are 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.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or the Company and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft
of any Note, and there is delivered to the Company and the Trustee such security
or indemnity as may be required by them
13
to save each of them harmless, then, in the absence of notice to the Company or
the Trustee that such Note has been acquired by a bona fide purchaser, the
Company shall execute and upon its written request the Trustee shall
authenticate and deliver, in exchange for any such mutilated Note or in lieu of
any such destroyed, lost or stolen Note, a new Note of like tenor and principal
amount, bearing a certificate number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or is
about to become due and payable, or is about to be purchased by the Company
pursuant to Article 3 hereof, the Company in its discretion may, instead of
issuing a new Note, pay or purchase such Note, as the case may be.
Upon the issuance of any new Notes under this Section 2.07, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section 2.07 in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Note shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Notes duly issued hereunder.
The provisions of this Section 2.07 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this Section as
not outstanding. Except as set forth in Section 2.09 hereof, a Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds
the Note.
If a Note is replaced pursuant to Section 2.07 hereof, 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 Section 8-303 of
the New York Uniform Commercial Code.
If the principal amount of any Note is considered paid under Section 6.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary of the Company or
an Affiliate of any thereof) holds, on a Redemption Date, a Change in Control
Payment Date, or maturity date, money sufficient to pay Notes payable on that
date, then on and after that date such Notes shall be deemed to be no longer
outstanding and shall cease to accrue interest.
14
Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any Notice, direction, waiver or consent, Notes owned by
the Company, or by any Affiliate of the Company, shall be considered as though
not outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such Notice, direction, waiver or consent,
only Notes that the Trustee knows are so owned shall be so disregarded.
Section 2.10. Temporary Notes.
Until certificates representing Notes are ready for delivery, the Company
may prepare and execute, and the Trustee, upon receipt of a Company Order, shall
authenticate and deliver 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 as shall be reasonably acceptable
to the Trustee. Without unreasonable delay, the Company shall prepare and the
Trustee, upon receipt of a Company Order, shall authenticate and deliver
Definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of this
Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar, Paying Agent and Conversion Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange,
redemption, payment or conversion. The Trustee and no one else shall cancel all
Notes surrendered for registration of transfer, exchange, redemption, payment,
conversion, replacement or cancellation and shall dispose of such Notes as it
may determine, in accordance with its normal procedures. Any Notes which are
redeemed, purchased or otherwise acquired by the Company or any of its
Subsidiaries prior to the maturity date may, at the option of the Company, be
surrendered to the Trustee for cancellation. Certification of the destruction of
all canceled Notes, if destroyed, shall be delivered to the Company by the
Trustee. The Company may not reissue, reoffer or resell new Notes to replace
Notes that it has paid or that have been delivered to the Trustee for
cancellation or that any Holder has converted pursuant to Article 4.
Section 2.12. Additional Transfer and Exchange Requirements.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 120 days after the date of such notice from the Depositary or
(ii) an Event of Default has occurred and is continuing with respect to the
Notes. Upon the occurrence of either of the preceding events in (i) or (ii)
15
above, Definitive Notes shall be issued by the Trustee in whose names such Notes
are registered as the Depositary shall instruct the Trustee. Global Notes also
may be exchanged or replaced, in whole or in part, as provided in Sections 2.07
and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in
lieu of, a Global Note or any portion thereof, pursuant to this Section 2.12 or
Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Note. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.12(a); however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.12(b), (c) or (f) hereof.
(b) Transfer And Exchange Of Definitive Notes. In the event that Definitive
Notes are issued in exchange for beneficial interests in Global Notes in
accordance with Section 2.12(a) of this Indenture, on or after such event when a
Definitive Note is presented by a Holder to a Registrar with a request:
(x) to register the transfer of such Definitive Note to a Person who
will take delivery thereof in the form of a Definitive Note only; or
(y) to exchange such Definitive Note for an equal principal amount of
Definitive Notes of other authorized denominations,
such Registrar shall register the transfer or make the exchange as requested;
provided, however, that such Definitive Note presented or surrendered for
register of transfer or exchange:
(1) shall be duly endorsed or accompanied by a written instrument of
transfer in accordance with the proviso to the first sentence of the first
paragraph of Section 2.06(a); and
(2) in the case of a Restricted Definitive Note, such request shall be
accompanied by the following additional information and documents, as
applicable:
(i) if such Restricted Definitive Note is being delivered to the
Registrar by a Holder for registration in the name of such Holder,
without transfer, or such Restricted Definitive Note is being
transferred to the Company or a Subsidiary of the Company, a
certification to that effect from such Holder (in substantially the
form set forth in the Transfer Certificate);
(ii) if such Restricted Definitive Note is being transferred to a
Person the Holder reasonably believes is a QIB in accordance with Rule
144A or is being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904 or pursuant to an
effective registration statement under the Securities Act, a
certification to that effect from such Holder (in substantially the
form set forth in the Transfer Certificate); or
(iii) if such Restricted Definitive Note is being transferred (A)
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 or (B) pursuant to an
exemption from the registration requirements of the Securities Act
(other than pursuant to Rule 144A, Rule 144, Rule 903 or Rule 904), a
certification to that effect from the Holder (in
16
substantially the form set forth in the Transfer Certificate) and, if
the Company or such Registrar so requests, a customary opinion of
counsel, certificates and other information reasonably acceptable to
the Company and such Registrar to the effect that such transfer is in
compliance with the registration requirements of the Securities Act.
(c) Transfer of a Beneficial Interest in a Restricted Global Note for a
Beneficial Interest in an Unrestricted Global Note. Any Person having a
beneficial interest in a Restricted Global Note may upon request, subject to the
Applicable Procedures, transfer such beneficial interest to a Person who is
required or permitted to take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note. Upon receipt by the Trustee of written
instructions, or such other form of instructions as is customary for the
Depositary, from the Depositary or its nominee on behalf of any Person having a
beneficial interest in a Restricted Global Note and the following additional
information and documents in such form as is customary for the Depositary (all
of which may be submitted by facsimile or electronically):
(1) if such beneficial interest is being transferred pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement, a certification to that effect from the transferor (in
substantially the form set forth in the Transfer Certificate); or
(2) if such beneficial interest is being transferred (i) pursuant to
an exemption from the registration requirements of the Securities Act in
accordance with Rule 144 or (ii) pursuant to an exemption from the
registration requirements of the Securities Act (other than pursuant to
Rule 144A, Rule 144, Rule 903 or Rule 904), a certification to that effect
from the transferor (in substantially the form set forth in the Transfer
Certificate) and, if the Company or the Trustee so requests, a customary
opinion of counsel, certificates and other information reasonably
acceptable to the company and the Trustee to the effect that such transfer
is in compliance with the registration requirements of the Securities Act.
The Trustee, as a Registrar and Custodian, shall reduce or cause to be reduced
the aggregate principal amount of the Restricted Global Note by the appropriate
principal amount and shall increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note by a like principal amount.
Such transfer shall otherwise be effected in accordance with the Applicable
Procedures. If no Unrestricted Global Note is then outstanding, the Company
shall execute and the Trustee shall, upon receipt of a Company Order (which the
Company agrees to deliver promptly), authenticate and deliver an Unrestricted
Global Note.
(d) Transfers of Definitive Notes for Beneficial Interest in Global Notes.
In the event that Definitive Notes are issued in exchange for beneficial
interests in Global Notes and, thereafter, the events or conditions specified in
Section 2.12(a) which required such exchange shall cease to exist, the Company
shall mail notice to the Trustee and to the Holders stating that Holders may
exchange Definitive Notes for interests in Global Notes by complying with the
procedures set forth in this Indenture and briefly describing such procedures
and the events or circumstances requiring that such notice be given. Thereafter,
if Definitive Notes are presented by a Holder to a Registrar with a request:
17
(x) to register the transfer of such Definitive Notes to a Person who
will take delivery thereof in the form of a beneficial interest in a Global
Note, which request shall specify whether such Global Note will be a
Restricted Global Note or an Unrestricted Global Note; or
(y) to exchange such Definitive Notes for an equal principal amount of
beneficial interests in a Global Note, which beneficial interests will be
owned by the Holder transferring such Definitive Notes; provided that in
the case of such an exchange, Restricted Definitive Notes may be exchanged
only for interests in Restricted Global Notes and Unrestricted Definitive
Notes may be exchanged only for interests in Unrestricted Global Notes,
the Registrar shall register the transfer or make the exchange as requested by
canceling such Definitive Note and causing, or directing the Custodian to cause,
the aggregate principal amount of the applicable Global Note to be increased
accordingly and, if no such Global Note is then outstanding, the Company shall
issue and the Trustee, upon receipt of a Company Order, shall authenticate and
deliver a new Global Note; provided, however, that the Definitive Notes
presented or surrendered for registration of transfer or exchange:
(1) shall be duly endorsed or accompanied by a written instrument of
transfer in accordance with the proviso to the first sentence of the first
paragraph of Section 2.06(a);
(2) in the case of a Restricted Definitive Note to be transferred for
a beneficial interest in an Unrestricted Global Note pursuant to clause (x)
above, such request shall be accompanied by the following additional
information and documents, as applicable:
(i) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the Securities
Act, a certification to that effect from such Holder (in substantially
the form set forth in the Transfer Certificate); or
(ii) if such Restricted Definitive Note is being transferred
pursuant to (A) an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 or (B) pursuant to an
exemption from the registration requirements of the Securities Act
(other than pursuant to Rule 144A, Rule 144, Rule 903 or Rule 904), a
certification to that effect from such Holder (in substantially the
form set forth in the Transfer Certificate), and, if the Company or
the Registrar so requests, a customary opinion of counsel,
certificates and other information reasonably acceptable to the
Company and the Trustee to the effect that such transfer is in
compliance with the registration requirements of the Securities Act;
(3) in the case of a Restricted Definitive Note to be transferred or
exchanged for a beneficial interest in a Restricted Global Note, such
request shall be accompanied by a certification from such Holder (in
substantially the form set forth in the Transfer Certificate) to the effect
that such Restricted Definitive Note is being transferred to a
18
Person the Holder reasonably believes is (x) a QIB (which, in the case of
an exchange, shall be such Holder) in accordance with Rule 144A or (y) is
being transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904; and
(4) in the case of an Unrestricted Definitive Note to be transferred
or exchanged for a beneficial interest in an Unrestricted Global Note, such
request need not be accompanied by any additional information or documents.
(e) Legends.
(1) Except as permitted by the following paragraphs (2), (3) (4), or
(5), each Global Note and Definitive Note (and all Notes issued in exchange
therefor or upon registration of transfer or replacement thereof) shall
bear the Private Placement Legend (each a "Restricted Global Note" or a
"Restricted Definitive Note") for so long as it is required by this
Indenture to bear such legend. Each Restricted Global Note or Restricted
Definitive Note shall have attached thereto a certificate (a "Transfer
Certificate") in substantially the form attached to Exhibit A hereto.
(2) Upon any sale or transfer of a Restricted Global Note or a
Restricted Definitive Note (w) after the expiration of the holding period
applicable to sales of the Notes under Rule 144(k) of the Securities Act,
(x) pursuant to Rule 144, (y) pursuant to an effective registration
statement under the Securities Act or (z) pursuant to any other available
exemption (other than Rule 144, Rule 144A, Rule 903, or Rule 904) from the
registration requirements of the Securities Act:
(i) in the case of any Restricted Definitive Note, any Registrar
shall permit the Holder thereof to exchange such Restricted Definitive
Note for an Unrestricted Definitive Note, or (under the circumstances
described in Section 2.12(d)) to transfer such Restricted Definitive
Note to a transferee who shall take such Note in the form of a
beneficial interest in an Unrestricted Global Note, and in each case
shall rescind any restriction on the transfer of such Note; provided,
however, that the Holder of such Restricted Definitive Note shall, in
connection with such exchange or transfer, comply with the other
applicable provisions of this Section 2.12; and
(ii) in the case of any beneficial interest in a Restricted
Global Note, the Trustee shall permit the beneficial owner thereof to
transfer such beneficial interest to a transferee who shall take such
interest in the form of a beneficial interest in an Unrestricted
Global Note and shall rescind any restriction on transfer of such
beneficial interest; provided that such Unrestricted Global Note shall
continue to be subject to the provisions of Section 2.12(a); and
provided further that the owner of such beneficial interest shall, in
connection with such transfer, comply with the other applicable
provisions of this Section 2.12.
(3) Upon the exchange, registration of transfer or replacement of
Notes not bearing the legend described in paragraph (1) above in accordance
with the provisions of this Section 2.12, the Company shall execute, and
the Trustee shall authenticate and
19
deliver Notes that do not bear such legend and that do not have a Transfer
Certificate attached thereto.
(4) After the expiration of the holding period pursuant to Rule 144(k)
of the Securities Act, the Company may with the consent of the Holder of a
Restricted Global Note or Restricted Definitive Note, remove any applicable
restriction of transfer on such Note, and the Company shall execute, and
the Trustee shall authenticate and deliver Notes that do not bear the
Private Placement Legend or the Canadian Legend, as the case may be, and
that do not have a Transfer Certificate attached thereto.
(5) Until the expiration of the holding period applicable to sales of
the Notes under Rule 144(k) of the Securities Act or a transfer pursuant to
Rule 144 or pursuant to an effective registration statement under the
Securities Act, the Shares of Beneficial Interest issued upon conversion of
the Notes shall bear the legend in substantially the form attached hereto
as Exhibit C.
(f) Notwithstanding any provision of Section 2.6 and 2.12 to the contrary,
in the event Rule 144(k) as promulgated under the Securities Act (or any
successor rule) is amended to shorten the two-year period under Rule 144(k) (or
the corresponding period under any successor rule), then in that event, from and
after receipt by the Trustee of the Officers' Certificate and Opinion of Counsel
provided for in this Section 2.12(f), (1) the references in Section 2.12(e) and
6.03 to "two years" shall be deemed for all purposes hereof to be references to
such shorter period, (2) all corresponding references in the Notes and the
restrictive legends thereon (including the restrictive legends on any Shares of
Beneficial Interest issuable upon conversion of the Notes) shall be deemed for
all purposes hereof to be references to such shorter period, provided that such
changes shall not become effective if they are otherwise prohibited by, or would
otherwise cause a violation of, the then-applicable U.S. federal securities
laws. As soon as practicable after the Company has knowledge of the
effectiveness of any such amendment to shorten the two-year period under Rule
144(k) (or the corresponding period under any successor rule), unless such
changes would otherwise be prohibited by, or would otherwise cause a violation
of, the then-applicable U.S. federal securities law, the Company shall provide
to the Trustee an Officers' Certificate and Opinion of Counsel informing the
Trustee of the effectiveness of such amendment and the effectiveness of the
foregoing changes to Sections 2.12 and 6.03. This Section 2.12(f) shall apply to
successive amendments to Rule 144(k) (or any successor rule) shortening the
holding period thereunder.
(g) Transfers to the Company. Nothing in this Indenture or in the Notes
shall prohibit the sale or other transfer of any Notes (including beneficial
interests in Global Notes) to the Company or any of its Subsidiaries, subject to
Section 2.11 hereof.
Section 2.13. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" and "ISIN" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" and "ISIN"
numbers in notices of redemption or purchase as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption or purchase and that reliance may be placed
20
only on the other identification numbers printed on the Notes, and any such
redemption or purchase shall not be affected by any defect in or omission of
such numbers. The Company will promptly notify the Trustee of any change in the
"CUSIP" or "ISIN" numbers.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least 25
days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (i) the clause of this Indenture pursuant to which the
redemption shall occur, (ii) the redemption date, (iii) the principal amount of
Notes to be redeemed and (iv) the redemption price.
Section 3.02. Selection of Notes to Be Redeemed.
If fewer than all the Notes are to be redeemed at any time, the Trustee
shall select the Notes to be redeemed by lot, or in the Trustee's discretion, on
a pro rata basis. In the event of partial redemption by lot, the particular
Notes to be redeemed shall be selected, unless otherwise provided herein, not
less than 20 nor more than 60 days prior to the redemption date by the Trustee
from the outstanding Notes not previously called for redemption. If a portion of
Notes is selected for partial redemption and a Holder elects to convert a
portion of Notes pursuant to Article 4 hereof, the converted portion of the
Notes will be deemed to be the portion selected for redemption. Notes which have
been converted during a selection of Notes to be redeemed may be treated by the
Trustee as outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.03. Notice of Redemption.
At least 20 days but not more than 60 days before a redemption date, the
Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the then current Conversion Price;
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(d) 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 shall be issued upon cancellation of the original Note;
(e) the name and address of the Paying Agent and Conversion Agent;
(f) that Notes called for redemption must be presented and surrendered to a
Paying Agent to collect the redemption price;
(g) that Holders who wish to convert Notes must surrender such Notes for
conversion no later than the close of business on the Business Day immediately
preceding the redemption date and must satisfy the other requirements in
paragraph 8 of the Notes;
(h) that, unless the Company Defaults in making such redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
redemption date;
(i) the paragraph of the Notes and/or Section of this Indenture pursuant to
which the Notes called for redemption are being redeemed;
(j) that no representation is made as to the correctness or accuracy of the
CUSIP or ISIN number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense; provided, however, that the Company
shall have delivered to the Trustee, at least 20 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03 hereof,
Notes called for redemption become irrevocably due and payable on the redemption
date at the redemption price. A notice of redemption may not be conditional.
Section 3.05. Deposit of Redemption Price.
Prior to 11:00 a.m., New York City time, on the redemption date, the
Company shall deposit with the Trustee or with the Paying Agent immediately
available funds sufficient to pay the redemption price of, and accrued interest
on, all Notes to be redeemed on that date. The Trustee or the Paying Agent shall
promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued interest on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding paragraph, on
and after the redemption date, interest shall cease to accrue on the Notes or
the portions of Notes called for redemption. If a Note is redeemed on or after
an interest payment record date but on or prior to the related Interest Payment
Date, then any accrued and unpaid interest shall be paid to the same
22
Person to whom the Company pays the principal amount of such Note. If any Note
called for redemption shall not be so paid upon surrender for redemption because
of the failure of the Company to comply with the preceding paragraph, interest
shall be paid on the unpaid principal, from the redemption date until such
principal is paid, and to the extent lawful on any interest not paid on such
unpaid principal, in each case at the rate provided in the Notes and in Section
6.01 hereof.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall issue,
and, upon the Company's written request, the Trustee shall authenticate for the
Holder at the expense of the Company, a new Note equal in principal amount to
the unredeemed portion of the Note surrendered.
Section 3.07. Optional Redemption.
(a) The Company shall not have the option to redeem the Notes pursuant to
this Section 3.07 prior to October 15, 2008. Thereafter the Company shall have
the option to redeem the Notes in whole, or in part, upon not less than 20 nor
more than 60 days' notice by mail to Holders of the Notes, at 100% of the
principal amount of the Notes together with accrued interest, if any, up to, but
not including, the redemption date; provided that if the redemption date falls
after an interest payment record date and on or before an Interest Payment Date,
the applicable interest payment shall be payable to the same Person to whom the
Company pays the principal amount of such Note upon redemption.
(b) Any redemption pursuant to this Section 3.07 shall be made in
accordance with the provisions of Section 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption; No Sinking Fund.
The Company shall not be required to (a) make mandatory redemption payments
with respect to the Notes or (b) set aside any funds for the redemption of the
Notes.
ARTICLE 4.
CONVERSION
Section 4.01. Conversion Privilege.
A Holder of a Note may convert such Note into fully paid and nonassessable
Shares of Beneficial Interest at any time prior to the close of business on the
last Business Day prior to maturity at the Conversion Price (as defined below)
then in effect, except that, with respect to any Note called for redemption
pursuant to Section 3.07 or submitted or presented for purchase pursuant to
Section 6.09, such conversion right shall terminate at the close of business on
the Business Day immediately preceding the redemption date or Change in Control
Payment Date, as the case may be, (unless the Company shall Default in making
the redemption payment or Change in Control Payment, as the case may be, when
it becomes due, in which case the conversion right shall terminate at the
close of business on the date such Default is cured and
23
such Note is redeemed or purchased, as the case may be). The number of Shares of
Beneficial Interest issuable upon conversion of a Note will be determined by the
Company by dividing the principal amount of such Note by the conversion price in
effect on the Conversion Date (the "Conversion Price").
The initial Conversion Price is $7.75 per share and is subject to
adjustment as provided for in this Article 4.
A Holder may convert a portion of a Note equal to any integral multiple of
$1,000. Provisions of this Indenture that apply to conversion of all of a Note
also apply to conversion of a portion of it.
A Note in respect of which a Holder has delivered a Change in Control
Payment Notice pursuant to Section 6.09 exercising the option of such Holder to
require the Company to purchase such Note may be converted only if such Change
in Control Payment Notice is withdrawn by a written notice of withdrawal
delivered to a Paying Agent prior to the close of business on the Business Day
immediately preceding the Change in Control Payment Date in accordance with
Section 6.09.
A Holder of Notes is not entitled to any rights of a Holder of Shares of
Beneficial Interest until, and only to the extent that, such Holder has
effectively converted its Notes to Shares of Beneficial Interest pursuant to
this Article 4.
Section 4.02. Conversion Procedure.
To convert a Note, a Holder must satisfy all of the requirements in
paragraph 8 of the Notes. The first Business Day on which the Holder satisfies
all those requirements is the conversion date (the "Conversion Date"). As soon
as practicable after the Conversion Date, the Company shall deliver or cause to
be delivered upon the order of the Holder a certificate for the number of whole
Shares of Beneficial Interest issuable upon the conversion and cash in lieu of
any fractional share determined pursuant to Section 4.03 hereof. The Person in
whose name the certificate is registered shall become the shareholder of record
on the Conversion Date and, as of such date, such Person's rights as a Holder
shall cease; provided, however, that no surrender of a Note on any date when the
stock transfer books of the Company shall be closed shall be effective to
constitute the Person entitled to receive the Shares of Beneficial Interest upon
such conversion as the shareholder of record of such Shares of Beneficial
Interest on such date, but such surrender shall be effective to constitute the
Person entitled to receive such Shares of Beneficial Interest as the shareholder
of record thereof for all purposes at the close of business on the next
succeeding Business Day on which such stock transfer books are open; provided
further, however, that such conversion shall be at the Conversion Price in
effect on the Conversion Date.
No payment or other adjustment shall be made for accrued interest or
dividends or distributions on any Shares of Beneficial Interest issued upon
conversion of the Notes. If any Notes are converted during any period after the
close of business on any record date for the payment of an installment of
interest but prior to the opening of business on the next Interest Payment Date,
interest for such Notes will be paid on the next Interest Payment Date,
24
notwithstanding such conversion, to the Holders of such Notes. Any Notes that
are, however, delivered to the Company for conversion during the period after
any record date but prior to the opening of business on the next Interest
Payment Date must, except as described in the next sentence, be accompanied by
funds equal to the interest payable on such Interest Payment Date on the
principal amount of Notes being converted. If the Company (i) elects to redeem
Notes pursuant to Article 3 hereof or (ii) offers to repurchase Notes upon a
Change of Control pursuant to Section 6.09 hereof, on a date that is during that
period from the close of business on a record date for the payment of an
installment of interest and ending on the close of business on the next Interest
Payment Date (or if such Interest Payment Date is not a Business Day, the
Business Day after the Interest Payment Date), and any Holders surrender the
Notes or portions thereof for conversion on a date that is not an Interest
Payment Date, such Holders shall receive interest for the period from the
Interest Payment Date next preceding the Conversion Date (it being understood
that such Holders that surrender Notes or portions thereof for conversion
following any redemption notice or Change in Control Offer shall not be required
to pay such funds as described in the third sentence of this paragraph). No
fractional shares will be issued upon conversion, but a cash adjustment will be
made for any fractional shares.
If a Holder converts more than one Note at the same time, the number of
whole Shares of Beneficial Interest issuable upon the conversion shall be based
on the total principal amount of Notes converted.
Upon surrender of a Note that is converted in part, the Trustee shall
authenticate for the Holder a new Note equal in principal amount to the
unconverted portion of the Note surrendered.
Section 4.03. Fractional Shares.
The Company will not issue fractional Shares of Beneficial Interest upon
conversion of a Note. In lieu thereof, the Company will pay an amount in cash
based upon the Closing Sale Price of the Shares of Beneficial Interest on the
last Trading Day prior to the Conversion Date.
Section 4.04. Taxes on Conversion.
Except as provided in the next sentence, the Company will pay any and all
taxes (other than taxes on income) and duties that may be payable in respect of
the issue or delivery of Shares of Beneficial Interest on conversion of Notes
pursuant hereto. A Holder delivering a Note for conversion shall be liable for
and will be required to pay any tax or duty which may be payable in respect of
any transfer involved in the issue and delivery of Shares of Beneficial Interest
in a name other than that of the Holder of the Note or Notes to be converted,
and no such issue or delivery shall be made unless the Person requesting such
issue has paid to the Company the amount of any such tax or duty, or has
established to the satisfaction of the Company that such tax or duty has been
paid.
Section 4.05. Company to Provide Stock.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Shares of Beneficial
Interest, solely for the purpose of issuance upon conversion of Notes as herein
provided, a sufficient number of Shares of Beneficial Interest to permit the
conversion of all outstanding Notes for Shares of Beneficial Interest. All
Shares of
25
Beneficial Interest which may be issued upon conversion of the Notes shall be
duly authorized, validly issued, fully paid and nonassessable and free of
preemptive rights and free of any lien or adverse claim when so issued.
Section 4.06. Adjustment of Conversion Price.
The Conversion Price shall be subject to adjustment from time to time as
follows:
(a) Stock split and combinations. In case the Company, at any time or from
time to time after the issuance date of the Notes, (a) subdivides or splits the
outstanding Shares of Beneficial Interest, (b) combines or reclassifies the
outstanding Shares of Beneficial Interest into a smaller number of shares or (c)
issues by reclassification of the Shares of Beneficial Interest any shares of
its Capital Stock, then the Conversion Price in effect immediately prior to that
event or the record date for that event, whichever is earlier, shall be adjusted
by multiplying such Conversion Price by a fraction, the numerator of which shall
be the number of Shares of Beneficial Interest outstanding immediately prior to
such subdivision or combination and the denominator of which shall be the number
of shares of Beneficial Interest outstanding immediately after giving effect to
such subdivision or combination. Such reduction or increase, as the case may be,
shall become effective immediately after the opening of business on the Business
Day following the day upon which such subdivision or combination becomes
effective.
(b) Stock Dividends in Shares of Beneficial Interest. In case the Company,
at any time or from time to time after the issuance date of the Notes, pays a
dividend or makes a distribution in Shares of Beneficial Interest on any class
of its Capital Stock, other than dividends or distributions of Shares of
Beneficial Interest or other securities with respect to which adjustments are
provided in paragraph (a) above or with respect to payments of interest or
dividend obligations with respect to a particular series of Capital Stock in
accordance with the terms of such Capital Stock, the Conversion Price will be
reduced by multiplying such Conversion Price by a fraction:
(i) the numerator of which will be the number of Shares of Beneficial
Interest outstanding; and
(ii) the denominator of which will be the sum of that number of shares
and the total number of shares issued in that dividend or distribution.
Such reduction shall become effective immediately after the opening of
business on the Business Day immediately following the record date fixed for
such determination of shareholders entitled to receive such dividend or
distribution.
(c) Issuance of Rights or Warrants. In case the Company issues to all or
substantially all holders of its Shares of Beneficial Interest rights or
warrants entitling those holders for a period of not more than 60 days to
subscribe for or purchase its Shares of Beneficial Interest or securities
convertible into its Shares of Beneficial Interest at a price per share (or
having a conversion, exchange or exercise price per share) less than the Current
Market Price, the Conversion Price in effect at the opening of business on the
Business Day immediately following the record date fixed for determination of
shareholders entitled to receive those rights or warrants will be reduced by
multiplying such Conversion Price by a fraction:
26
(i) the numerator of which is the sum of the number of Shares of
Beneficial Interest outstanding at the close of business on that record
date and the number of Shares of Beneficial Interest (or Shares of
Beneficial Interest issuable pursuant to such convertible, exchangeable or
exercisable securities) that the aggregate offering price of the total
number of Shares of Beneficial Interest (or convertible, exchangeable or
exercisable securities) so offered for subscription or purchase (or the
aggregate conversion, exchange or exercise price of the convertible
securities so offered) would purchase at the Current Market Price per share
of Beneficial Interest; and
(ii) the denominator of which is the sum of the number of Shares of
Beneficial Interest outstanding at the close of business on that record
date and the number of additional Shares of Beneficial Interest so offered
for subscription or purchase (or into which the convertible, exchangeable
or exercisable securities so offered are convertible, exchangeable or
exercisable).
Such reduction shall become effective at the opening of business on the Business
Day immediately following the record date fixed for determination of
shareholders entitled to receive such rights or warrants.
For purposes of this Section 4.06(c), the issuance of rights or warrants to
subscribe for or purchase securities convertible into or exchangeable or
exercisable for Shares of Beneficial Interest will be deemed to be the issuance
of rights or warrants to purchase Shares of Beneficial Interest into which those
securities are convertible at an aggregate offering price equal to the sum of
the aggregate offering price of those securities and the minimum aggregate
amount, if any, payable upon conversion of those securities into Shares of
Beneficial Interest. This adjustment will be made successively whenever any such
event occurs. For purposes of this Section 4.06(c), upon conversion of the Notes
into Shares of Beneficial Interest, to the extent that the Company's shareholder
rights plan or any shareholder rights plan that may be adopted following the
expiration of, or as a substitute for, the Company's existing shareholder rights
plan (the "Rights Plan") is in effect upon such conversion, the Holders of Notes
will receive, in addition to the Shares of Beneficial Interest, the rights
described in such Rights Plan (whether or not the rights have separated from the
Shares of Beneficial Interest at the time of conversion), upon the terms of and
subject to the limitations set forth in the Rights Plan. Any distribution of
rights or warrants pursuant to the Rights Plan complying with the requirements
set forth in the immediately preceding sentence of this paragraph shall not
constitute a distribution of rights or warrants for purposes of this Section
4.06(c).
(d) Distribution of Indebtedness, Securities or Assets. In case the Company
shall distribute to all or substantially all Holders of its Shares of Beneficial
Interest any shares of Capital Stock of the Company (other than Shares of
Beneficial Interest), evidences of Indebtedness or other non-cash assets, or
shall distribute to all or substantially all holders of its Shares of Beneficial
Interest rights or warrants to subscribe for or purchase any of its securities
but excluding (w) those rights and warrants referred to in Section 4.06(c); (x)
the distribution of rights to all holders of Shares of Beneficial Interest
pursuant to the adoption of a Rights Plan or the detachment of such rights under
the terms of such Rights Plan; (y) dividends or distributions of stock referred
to in Section 4.06(b) and (z) dividends and distributions paid exclusively in
cash (such capital stock, evidence of its indebtedness, other non-cash assets or
securities being
27
distributed hereinafter in this Section 4.06(d) called the "distributed
assets")), then in each such case the Conversion Price in effect immediately
before the close of business on the record date fixed for the determination of
shareholders entitled to such distribution shall be adjusted by multiplying such
current Conversion Price by a fraction:
(i) the numerator of which shall be the Current Market Price per share
of the Shares of Beneficial Interest on the record date fixed for the
determination of shareholders entitled to such distribution less the fair
market value on such record date (as determined by the Board of Trustees,
whose determination shall be conclusive evidence of such fair market value
and which shall be evidenced by an Officers' Certificate delivered to the
Trustee) of the portion of the Capital Stock, evidences of Indebtedness or
other non-cash assets so distributed or of such rights or warrants
attributable to one Share of Beneficial Interest (determined on the basis
of the number of Shares of Beneficial Interest outstanding on the record
date); and
(ii) the denominator of which shall be the Current Market Price per
share of a Share of Beneficial Interest on such record date.
Such adjustment shall be made successively whenever any such distribution is
made and shall become effective immediately following the record date for the
determination of shareholders entitled to receive such distribution.
(e) All-cash Distributions. In case the Company shall, by dividend or
otherwise, at any time make a distribution of cash (excluding any cash that is
distributed as part of a distribution requiring a Conversion Price adjustment
pursuant to subsection (f) below) to all or substantially all holders of Shares
of Beneficial Interest, the Conversion Price shall be adjusted by multiplying
the Conversion Price in effect immediately before the close of business on the
record date for the determination of holders of Shares of Beneficial Interest
entitled to such distribution by a fraction: (A) whose numerator shall be an
amount equal to (a) the Current Market Price per Share of Beneficial Interest on
such record date (as determined pursuant to Section 4.06(g)) less (b) the lesser
of (i) the amount of the distribution per Share of Beneficial Interest and (ii)
such Current Market Price per Share of Beneficial Interest and (B) whose
denominator shall be the Current Market Price per Share of Beneficial Interest;
provided, however, that the Conversion Price shall not be adjusted pursuant to
this Section 4.06(e) to the extent, and only to the extent, such adjustment
would cause the Conversion Price to be reduced to less than one cent ($0.01). An
adjustment to the Conversion Price pursuant to this Section 4.06(e) shall become
effective immediately prior to the opening of business on the day immediately
following such record date.
(f) Tender Offer Purchases. In case any tender offer made by the Company or
any of its Subsidiaries for Shares of Beneficial Interest shall expire and such
tender offer (as amended upon the expiration thereof) shall involve the payment
to shareholders of aggregate consideration in an amount (determined as the sum
of the aggregate amount of cash consideration and the aggregate fair market
value (as determined by the Board of Trustees, whose determination shall be
conclusive evidence thereof and which shall be evidenced by an Officers'
Certificate delivered to the Trustee thereof) of any other consideration)
expressed as an amount per Share of Beneficial Interest validly tendered or
exchanged, and not withdrawn, pursuant to such tender
28
offer or exchange offer as of the Expiration Time (as defined below) that
exceeds the Current Market Price as of the day next succeeding the last date
(the "Expiration Date") tenders could have been made pursuant to such tender
offer (as it may be amended) (the last time at which such tenders could have
been made on the Expiration Date is hereinafter sometimes called the "Expiration
Time"), then, immediately prior to the opening of business on the first Business
Day after the Expiration Date, the Conversion Price shall be reduced by
multiplying the Conversion Price in effect immediately prior to close of
business on the Expiration Date by a fraction:
(i) the numerator of which shall be the product of the number of
Shares of Beneficial Interest outstanding (including tendered shares but
excluding any shares held in the treasury of the Company) at the Expiration
Time multiplied by the Current Market Price per share on the Expiration
Date; and
(ii) the denominator of which shall be the sum of (x) the aggregate
consideration (determined as aforesaid) payable to shareholders based on
the acceptance (up to any maximum specified in the terms of the tender
offer) of all Shares of Beneficial Interest validly tendered and not
withdrawn as of the Expiration Time (the Shares of Beneficial Interest
deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares") and (y) the product of (a) an amount equal to (I) the
number of Shares of Beneficial Interest outstanding at the Expiration Time
less (II) any Purchased Shares (and excluding any shares held in the
treasury of the Company and its Subsidiaries) and (b) the Current Market
Price per share on the Expiration Date.
such reduction (if any) to become effective immediately prior to the opening of
business on the Business Day following the Expiration Date. In the event that
the Company would be obligated to purchase Shares of Beneficial Interest
pursuant to any such tender offer, but the Company is permanently prevented by
applicable law from effecting any or all such purchases or any or all such
purchases are rescinded, the Conversion Price shall again be adjusted to be the
Conversion Price which would have been in effect based upon the number of Shares
of Beneficial Interest actually purchased. If the application of this Section
4.06(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 4.06.
For purposes of this Section 4.06, the term "tender offer" shall mean and
include both tender offers and exchange offers, all references to "purchases" of
shares in tender offers (and all similar references) shall mean and include both
the purchase of shares in tender offers and the acquisition of shares pursuant
to exchange offers, and all references to "tendered shares" (and all similar
references) shall mean and include shares tendered in both tender offers and
exchange offers. Notwithstanding the foregoing sentence, "tender offer" shall
not include open market purchases in compliance with Section 10b-18 under the
Exchange Act or negotiated purchases that are not subject to Section 14(d) of
the Exchange Act.
(g) For the purpose of any computation under subsections (c), (d), (e) and
(f) of this Section 4.06, the "Current Market Price" on any date shall be deemed
to be the average of the daily Closing Sale Prices per share of Beneficial
Interest for the 20 consecutive Trading Days commencing 30 Trading Days before
(i) the Expiration Date with respect to distributions or tender offers under
subsection (f) of this Section 4.06 or (ii) the record date with respect to
29
distributions, issuances or other events requiring such computation under
subsection (c), (d) or (e) of this Section 4.06. If no such prices are
available, Current Market Price shall be the fair value of one Share of
Beneficial Interest as determined by the Board of Trustees (which fair value
shall be conclusively determined by the Board and evidenced by an Officers'
Certificate delivered to the Trustee).
(h) If any distribution in respect of which an adjustment to the Conversion
Price is required to be made therefor as of the record date or Determination
Date or Expiration Date is not thereafter made or paid by the Company for any
reason, the Conversion Price shall be readjusted to the Conversion Price which
would then be in effect if such record date had not been fixed or the effective
date or Determination Date or Expiration Date had not occurred.
Section 4.07. No Adjustment.
No adjustment in the Conversion Price shall be required until cumulative
adjustments amount to at least 1% of the Conversion Price as last adjusted;
provided, however, that any adjustments which by reason of this Section 4.07 are
not required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Article 4 shall be made to
the nearest cent or to the nearest one-hundredth of a share, as the case may be.
No adjustment need be made for rights to purchase Shares of Beneficial Interest
pursuant to a Company plan for reinvestment of dividends or interest. No
adjustment need be made for a change in the par value or no par value of the
Shares of Beneficial Interest.
Section 4.08. Other Adjustments.
(a) In the event that, as a result of an adjustment made pursuant to
Section 4.06 hereof, the Holder of any Note thereafter surrendered for
conversion shall become entitled to receive any shares of Capital Stock of the
Company other than Shares of Beneficial Interest, thereafter the Conversion
Price of such other shares so receivable upon conversion of any Note shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to Shares of Beneficial
Interest contained in this Article 4.
(b) In the event that Shares of Beneficial Interest are not delivered after
the expiration of any of the rights or warrants referred to in Sections 4.06(c)
and (d) hereof, the Conversion Price shall be readjusted to the Conversion Price
which would otherwise be in effect had the adjustment made upon the issuance of
such rights or warrants been made on the basis of delivery of only the number of
Shares of Beneficial Interest actually delivered.
(c) Except as set forth in this Article 4, the Company shall not adjust the
Conversion Price for (i) the issuance of its Shares of Beneficial Interest or
any securities convertible into or exchangeable therefor or (ii) the right to
purchase its Shares of Beneficial Interest or any securities convertible or
exchangeable therefor.
Section 4.09. Adjustments for Tax Purposes.
The Company may make such reductions in the Conversion Price, in addition
to any required by Section 4.06 hereof, as it determines in its discretion to be
advisable in order that any
30
stock dividend, subdivision of shares, distribution or rights to purchase stock
or securities or distribution of securities convertible into or exchangeable for
stock made by the Company to its shareholders will not be taxable to the
recipients thereof.
Section 4.10. Notice of Adjustment.
Whenever the Conversion Price is adjusted as herein provided, the Company
shall promptly mail to Holders at the addresses appearing on the Registrar's
books a notice of the adjustment and file with the Trustee an Officers'
Certificate setting forth the adjusted Conversion Price and showing in
reasonable detail the facts requiring the adjustment and the manner of computing
it. The Officers' Certificate shall be conclusive evidence of the correctness of
such adjustment. Unless and until a Responsible Officer of the Trustee shall
receive written notice of an adjustment of the Conversion Price, the Trustee may
assume without inquiry that the Conversion Price has not been adjusted and that
the last Conversion Price of which it has knowledge remains in effect. Failure
to deliver such notice shall not affect the legality or validity of any such
adjustment.
Section 4.11. Notice of Certain Transactions.
In the event that:
(1) the Company takes any action which would require an adjustment in the
Conversion Price;
(2) the Company takes any action that would require a supplemental
Indenture pursuant to Section 4.12; or
(3) there shall occur the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
the Company shall mail to Holders at the addresses appearing on the Registrar's
books and the Trustee a notice stating the proposed record or effective date, as
the case may be, to permit a Holder of a Note to convert such Note into Shares
of Beneficial Interest prior to the record date for or the effective date of the
transaction in order to receive the rights, warrants, securities or assets which
a holder of Shares of Beneficial Interest on that date may receive. The Company
shall mail the notice at least 20 days before such date; however, neither the
failure to mail such notice nor any defect therein shall affect the validity of
any transaction referred to in clauses (1), (2) or (3) of this Section 4.11.
Section 4.12. Effect of Reclassifications, Consolidations, Mergers or Sales on
Conversion Privilege.
If any of the following shall occur, namely:
(1) any reclassification or change of outstanding Shares of Beneficial
Interest issuable upon conversion of Notes (other than a change in par
value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination or as a result of a
reincorporation of the Company in another jurisdiction);
31
(2) any consolidation or merger to which the Company is a party other
than a merger in which the Company is the continuing corporation and which
does not result in any reclassification of, or change (other than a change
in name, or par value, or from par value to no par value, or from no par
value to par value or as a result of a subdivision or combination) in,
outstanding Shares of Beneficial Interest; or
(3) any sale or conveyance of all or substantially all the property or
business of the Company as an entirety;
the Company, or such successor or purchasing corporation, as the case may be,
shall, as a condition precedent to such reclassification, change, consolidation,
merger, sale or conveyance, execute and deliver to the Trustee a supplemental
Indenture in form reasonably satisfactory to the Trustee (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
Holder of each Note then outstanding shall have the right to convert such Note
into the kind and amount of shares of stock, other securities and property
(including cash) receivable upon such reclassification, change, consolidation,
merger, sale or conveyance by a Holder of the number of Shares of Beneficial
Interest deliverable upon conversion of such Note immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance assuming
such Holder failed to exercise such Holder's rights of election, if any, as to
the kind or amount of shares of stock and other securities and property
(including cash) receivable upon such reclassification, change, consolidation,
merger, sale or conveyance. In the event that the Shares of Beneficial Interest
are exchanged or substituted for other securities in connection with any such
reclassification, change, consolidation, merger, sale or conveyance, such
supplemental Indenture shall provide for adjustments of the Conversion Price
which shall be as nearly equivalent as may be practicable to the adjustments of
the Conversion Price provided for in this Article 4. If, in the case of any such
consolidation, merger, sale or conveyance, the stock or other securities and
property (including cash) receivable thereupon by a holder of Shares of
Beneficial Interest includes shares of stock or other securities and property of
a corporation other than the successor or purchasing corporation, as the case
may be, in such consolidation, merger, sale or conveyance, then such
supplemental Indenture shall contain such additional provisions to protect the
interests of the Holders of the Notes as the Board of Trustees of the Company
shall reasonably consider necessary by reason of the foregoing. The provision of
this Section 4.12 shall similarly apply to successive consolidations, mergers,
sales or conveyances.
In the event the Company shall execute a supplemental Indenture pursuant to
this Section 4.12, the Company shall promptly file with the Trustee an Officers'
Certificate briefly stating the reasons therefor, the kind or amount of shares
of stock or securities or property (including cash) receivable by Holders of the
Notes upon the conversion of their Notes after any such reclassification,
change, consolidation, merger, sale or conveyance and any adjustment to be made
with respect thereto.
Section 4.13. Trustee's Disclaimer.
The Trustee has no duty to determine when an adjustment under this Article
4 should be made, how it should be made or what such adjustment should be, but
may accept as conclusive evidence of the correctness of any such adjustment, and
shall be protected in relying upon, the
32
Officers' Certificate with respect thereto which the Company is obligated to
file with the Trustee pursuant to Section 4.10 hereof. The Trustee makes no
representation as to the validity or value of any securities or assets issued
upon conversion of Notes, and the Trustee shall not be responsible for the
Company's failure to comply with any provisions of this Article 4.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental Indenture executed
pursuant to Section 4.12, but may accept as conclusive evidence of the
correctness thereof, and shall be protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 4.12 hereof.
Section 4.14. Voluntary Reduction.
The Company from time to time may, subject to approval from the Toronto
Stock Exchange, reduce the Conversion Price by any amount for any period of time
if the period is at least 20 days and if the Board of Trustees determines that
such reduction would be in the best interest of the Company and the Company
provides 15 days' prior notice to the Holders of any reduction in the Conversion
Price; provided, however, that in no event shall the Company reduce the
Conversion Price if such reduction would require shareholder approval under the
NASD rules and regulations in effect at the time of the reduction, unless such
shareholders shall have duly approved such reduction.
ARTICLE 5.
SUBORDINATION
Section 5.01. Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Note agrees, that the
Indebtedness evidenced by the Notes (including the principal of, premium, if
any, and interest (including Additional Interest, if any) on all the Notes and
the redemption price with respect to any Notes being called for redemption and
the Change in Control Payment with respect to all Notes subject to purchase
pursuant to Section 6.09 hereof) are subordinated in right of payment, to the
extent and in the manner provided in this Article 5, to the prior payment in
full in cash of all Senior Indebtedness (whether outstanding on the date hereof
or hereafter created, incurred, assumed or guaranteed), and that such
subordination is intended for the benefit of, and may be enforced by, the
holders of Senior Indebtedness.
Section 5.02. Liquidation; Dissolution; Bankruptcy.
(a) Upon payment or distribution of assets of the Company, of any kind or
character, including without limitation cash, property or securities, to
creditors pursuant to or as a result of any Insolvency or Bankruptcy Proceeding,
all principal, interest (including interest after the commencement of any
Insolvency or Bankruptcy Proceeding at the Default rate set forth in the
agreement or instrument relating to such Senior Indebtedness whether or not such
interest is an allowable claim under such proceeding), or other amounts payable
on the Senior Indebtedness or claims relating thereto, shall first be paid in
full, or payment thereof be provided for in cash or in
33
a manner satisfactory to the Holders of such Senior Indebtedness, before either
the holders of the Indebtedness evidenced by the Notes or the Trustee under this
Indenture shall be entitled to retain any assets so paid or distributed in
respect of this Indenture (except for Permitted Junior Securities); and upon any
such Insolvency or Bankruptcy Proceeding any payment or distribution of assets
of the Company, of any kind or character, including without limitation, cash,
property or securities, to which the Holders of the Notes or the Trustee under
this Indenture would be entitled except for the provisions of this Article 5,
shall be paid by the Company or by any receiver, administrator, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders of the Notes or by the Trustee under this
Indenture if received by them or it, directly to the Holders of the Senior
Indebtedness or to their representatives under the agreement or instrument
pursuant to which such Senior Indebtedness may have been issued as their
respective interests may appear, to the extent necessary to pay all Senior
Indebtedness in full, in cash or in a manner satisfactory to the Holders of such
Senior Indebtedness, before any payment or distribution is made to the Holders
of the Notes or by the Trustee under this Indenture (except for Permitted Junior
Securities).
(b) Upon any distribution of assets of the Company referred to in this
Article 5, the Trustee, subject to Article 9, and the Holders of Notes will be
entitled to rely upon a certificate of the liquidation 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 paid or
distributed thereon and all other facts pertinent thereto or to this Article 5.
Section 5.03. Default on Senior Indebtedness.
The Company may not pay the principal of or interest (including Additional
Interest) on the Notes or make any deposit pursuant to Section 2.04 and may not
repurchase, redeem or otherwise retire any Notes if (i) any principal, premium
or interest in respect of any Designated Senior Indebtedness is not paid within
any applicable grace period (including at maturity) or (ii) any other default on
Designated Senior Indebtedness occurs and the maturity of such Designated Senior
Indebtedness is accelerated in accordance with its terms unless, in either case,
(x) the default has been cured or waived and any such acceleration has been
rescinded or (y) such Designated Senior Indebtedness has been paid in full in
cash or cash equivalents. During the continuance of any default (other than a
default described in clause (i) or (ii) of the preceding sentence) with respect
to any Designated Senior Indebtedness pursuant to which the maturity thereof may
be accelerated immediately without further notice (except such notice as may be
required to effect such acceleration), the Company may not pay the Notes for a
period (a "Payment Blockage Period") commencing upon the receipt by the Company
and the Trustee of written notice of such default from the Representative of
such Designated Senior Indebtedness specifying an election to effect a Payment
Blockage Period (a "Payment Blockage Notice") and ending 179 days thereafter (or
earlier if such Payment Blockage Period is terminated (i) by written notice to
the Trustee and the Company from the Representative who gave such Payment
Blockage Notice, (ii) by repayment in full in cash or cash equivalents of such
Senior Indebtedness or (iii) because the default giving rise to such Payment
Blockage Notice is no longer continuing). Notwithstanding the provisions
described in the immediately preceding sentence, unless the holders of such
Designated Senior Indebtedness or the Representative of
34
such holders shall have accelerated the maturity of such Designated Senior
Indebtedness and shall not have rescinded such acceleration, the Company may
(unless otherwise prohibited pursuant to the first sentence of this Section
5.03) resume payments on the Notes after such Payment Blockage Period. Not more
than one Payment Blockage Notice with respect to all issues of Designated Senior
Indebtedness may be given in any consecutive 365-day period, irrespective of the
number of defaults with respect to one or more issues of Designated Senior
Indebtedness during such period; provided, further, that no new Payment Blockage
Notice may be given unless all scheduled payments on the Notes that have become
due and payable have been paid in full to the Holders. Any default that existed
or was continuing on the date of delivery of any Payment Blockage Notice shall
not be permitted to be the basis for any subsequent Payment Blockage Notice.
Section 5.04. Acceleration of Notes.
If payment of the Notes is accelerated because of an Event of Default, the
Company shall promptly notify all holders of Senior Indebtedness or their
Representatives known to the Company of the acceleration.
Section 5.05. When Distribution Must Be Paid Over.
If any payment or distribution of any kind, including without limitation,
cash, property or securities, is made by way of set-off or otherwise to the
Holders of the Notes or to the Trustee under this Indenture that because of
these subordination provisions should not have been made to it, such Trustee or
Holder who receives the distribution shall segregate such distribution from its
other funds and property and shall hold it in trust for the benefit of, and upon
demand shall pay it over to, the holders of Senior Indebtedness or to their
Representatives under the agreement or instrument pursuant to which such Senior
Indebtedness may have been issued or incurred as their respective interests may
appear, for application to, or for the payment or prepayment in full of, all
Senior Indebtedness and all claims relating thereto.
Section 5.06. Notice by Company.
The Company shall promptly notify the Trustee and the Paying Agent of any
facts known to the Company that would cause a payment of any Obligations with
respect to the Notes to violate this Article 5, but failure to give such notice
shall not affect the subordination of the Notes to the Senior Indebtedness as
provided in this Article 5.
Section 5.07. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the rights of
the Holders of Notes will be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of assets of the Company
applicable to the Senior Indebtedness, to the extent of the application thereto
of monies or other assets which would have been received by the Holders of Notes
but for the provisions of this Article 5, until the Notes have been paid in full
and no such subrogation, as between the Company, its creditors other than the
holders of Senior Indebtedness, and the Holders of Notes, will be deemed to be a
payment by the Company to or on account of the holders of Senior Indebtedness.
35
Section 5.08. Relative Rights.
This Article 5 defines the relative rights of Holders of Notes and holders
of Senior Indebtedness. Nothing in this Indenture shall:
(i) impair, as between the Company and Holders, the obligation of the
Company, which is absolute and unconditional, to pay principal of and
interest on the Notes in accordance with their terms;
(ii) affect the relative rights of Holders and creditors of the
Company other than their rights in relation to holders of Senior
Indebtedness; or
(iii) prevent the Trustee or any Holder from exercising its available
remedies upon a Default or Event of Default, subject to the rights of
holders and owners of Senior Indebtedness to receive distributions and
payments otherwise payable to Holders.
If the Company fails because of this Article 5 to pay principal of or
interest (including Additional Interest) on a Note on the due date, the failure
is still a Default or Event of Default.
Section 5.09. 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 or by the failure of the Company or
any holder to comply with this Indenture.
Section 5.10. 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.
Upon any payment or distribution of assets of the Company referred to in
this Article 5, 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
5.
Section 5.11. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 5 or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment or distribution by
the Trustee, and the Trustee and the Paying Agent may continue to make payments
on the Notes, unless the Trustee shall have received at its Corporate Trust
Office at least five Business Days prior to the date of such payment written
notice of facts that would cause the payment of any Obligations with respect to
the Notes to
36
violate this Article 5. Only the Company or a Representative may give the
notice. Nothing in this Article 5 shall impair the claims of, or payments to,
the Trustee under or pursuant to Section 9.07 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 5.12. Authorization to Effect Subordination.
Each Holder of Notes by its acceptance thereof authorizes and directs the
Trustee on its behalf to take such action as may be necessary or appropriate to
acknowledge and effectuate the subordination of the Notes as provided for in
this Article 5 and appoints the Trustee as attorney-in-fact for any and all such
purposes. Forthwith upon the request of any Holder of Senior Indebtedness or its
representative or the trustee under any Indenture under which any instruments
evidencing Senior Indebtedness may have been issued, the Trustee shall execute
and deliver to the Person making such request such agreements or instruments
reasonably acceptable to the Trustee in favor of the Holders of Senior
Indebtedness reflecting the terms of the subordination of the Notes provided for
in this Article 5 and in a form reasonably acceptable to such Holder,
representative or trustee, as applicable.
Section 5.13. Payments of Notes Permitted.
Nothing contained in this Indenture, or any of the Notes, will upon the
happening of any Default, condition, event or act described in Section 5.03,
prevent any payment being made by the Company or the Trustee in connection with
the redemption or repurchase of Notes if: (i) notice of redemption or
repurchase, as applicable, has been given pursuant to Article 3 or Section 6.09,
respectively, prior to the happening of any such Default, condition, event or
act described in Section 5.03; (ii) notice of such redemption or repurchase, as
applicable, is mailed not earlier than 60 days before the date fixed for such
redemption or repurchase; and (iii) prior to the time of such mailing the
Company shall have furnished to the Trustee an Officers' Certificate as to the
absence of any such Default, condition, event or act described in Section 5.03
and to the effect that, to the best of the knowledge and belief of the Officers
signing such certificate, there is no reason to expect that any such Default,
condition, event or act will exist at the date fixed for such redemption or
repurchase, as applicable, or as a result of such redemption or repurchase.
Section 5.14. Trustee Not Fiduciary for Holders of Senior Indebtedness.
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 5, 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 in good faith mistakenly pay over or distribute to
(i) Holders or holders of Shares of Beneficial Interest issued upon conversion
of such Notes; (ii) the Company; or (iii) any other Person cash, property or
securities to which any holders of Senior Indebtedness would be entitled by
virtue of this Article 5 or otherwise. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its
covenants or
37
obligations as are specifically set forth in this Article 5 and no implied
covenants or obligations with respect to holders of Senior Indebtedness shall be
read into this Indenture against the Trustee.
ARTICLE 6.
COVENANTS
Section 6.01. Payment of Notes.
The Company shall pay or cause to be paid the principal of and interest on
the Notes on the dates and in the manner provided in the Notes. Principal and
interest shall be considered paid on the date due if the Paying Agent, if other
than the Company or a Subsidiary thereof, holds as of 11:00 a.m., New York City
Time, on the due date money deposited by the Company in immediately available
funds and designated for and sufficient to pay all principal and interest then
due. The Company shall pay all Additional Interest, if any, in the same manner
on the dates and in the amounts set forth in the Registration Rights Agreement.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate borne by
the Notes to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Additional Interest (without regard to any applicable grace period)
at the same rate to the extent lawful.
Section 6.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of New
York, a Paying Agent, Conversion Agent, Registrar and an office or agency (which
may be an office of the Trustee or an affiliate of the Trustee or Registrar)
where Notes may be surrendered for registration of transfer or for exchange and
where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company fails to maintain any such required office or
agency or fails to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
the City of New York for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 2.03.
38
Section 6.03. Reports.
The Company shall file with the Trustee, within 15 days after it files such
annual and quarterly reports, information, documents and other reports with the
SEC, copies of its annual report and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the SEC may by
rules and regulations prescribe) which the Company is required to file with the
SEC pursuant to Section 13 or 15(d) of the Exchange Act (the "SEC Reports"). If
at any time the Company is not subject to Section 13 or 15(d) of the Exchange
Act, the Company shall provide reports containing substantially the same
information as that contained in the SEC Reports (the "Trustee Reports"), such
reports to be provided at the same times the Company would have been required to
provide the SEC Reports to the Trustee pursuant to the immediately preceding
sentence had it then been subject to section 13 or 15(d) of the Exchange Act,
provided that the Trustee Reports need not include any certifications from
officers of the Company. The Company also shall comply with the other provisions
of TIA Section 314(a).
Section 6.04. Rule 144A Information Requirement.
Within the period prior to the expiration of the holding period applicable
to sales thereof under Rule 144(k) under the Securities Act (or any successor
provision), the Company covenants and agrees that it shall, during any period in
which it is not subject to Section 13 or 15(d) under the Exchange Act, make
available to any Holder or beneficial Holder of Notes or any Shares of
Beneficial Interest issued upon conversion thereof which continue to be either a
Restricted Global Note or a Restricted Definitive Note in connection with any
sale thereof and any prospective purchaser of Notes or such Shares of Beneficial
Interest designated by such Holder or beneficial Holder, the information
required pursuant to Rule 144A(d)(4) under the Securities Act upon the request
in writing of any Holder or beneficial Holder of the Notes or such Shares of
Beneficial Interest and it will take such further action as any Holder or
beneficial Holder of such Notes or such Shares of Beneficial Interest may
reasonably request, all to the extent required from time to time to enable such
Holder or beneficial Holder to sell its Notes or Shares of Beneficial Interest
without registration under the Securities Act within the limitation of the
exemption provided by Rule 144A, as such Rule may be amended from time to time.
Upon the request in writing of any Holder or any beneficial Holder of the Notes
or such Shares of Beneficial Interest, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
Section 6.05. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that, in their capacities as Officers, to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in Default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and
39
what action the Company is taking or proposes to take with respect thereto) and
that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) The Company shall, so long as any of the Notes are outstanding, deliver
to the Trustee, forthwith upon any Officer becoming aware of any Default or
Event of Default, an Officers' Certificate specifying such Default or Event of
Default and what action the Company is taking or proposes to take with respect
thereto.
Section 6.06. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or
where the Board of Trustees shall determine that the failure to effect such
payment is not materially adverse to the Holders of the Notes.
Section 6.07. 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 in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 6.08. Corporate Existence.
Subject to Article 7 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its corporate
existence or status applicable to business trust, and the corporate, partnership
or other existence of each of its Significant Subsidiaries, in accordance with
the respective organizational documents (as the same may be amended from time to
time) of the Company or any such Significant Subsidiary and (ii) the rights
(charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Subsidiaries, if the Board of Trustees shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders of the Notes.
Section 6.09. Offer to Repurchase Upon Change in Control.
(a) Upon the occurrence of a Change in Control, the Company shall make an
offer (a "Change in Control Offer") to each Holder to repurchase all or any part
(equal to $1,000 or an
40
integral multiple thereof) of each Holder's Notes at a purchase price equal to
100% of the aggregate principal amount thereof plus accrued and unpaid interest
and Additional Interest thereon, if any, to, but excluding, the date of purchase
(the "Change in Control Payment"). Within 10 Business Days following any Change
in Control, the Company shall mail a notice to the Trustee and to each Holder
stating:
(1) that the Change in Control Offer is being made pursuant
to this Section 6.09 and that all Notes tendered will be accepted
for payment;
(2) the purchase price and the purchase date, which shall be
no later than 30 Business Days after the occurrence of a Change
in Control (the "Change in Control Payment Date");
(3) that any Note not tendered will continue to accrue
interest;
(4) the name and address of each Paying Agent and Conversion
Agent;
(5) the Conversion Price and any adjustments thereto and
information concerning the Holder's right to convert the Notes;
(6) that, unless the Company defaults in the payment of the
Change in Control Payment, all Notes accepted for payment
pursuant to the Change in Control Offer shall cease to accrue
interest after the Change in Control Payment Date;
(7) that Holders electing to have any Notes purchased
pursuant to a Change in Control Offer will be required to
surrender the Notes, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Notes completed, to the
Paying Agent at the address specified in the notice prior to the
close of business on the Business Day preceding the Change in
Control Payment Date;
(8) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the close of
business on the Business Day preceding the Change in Control
Payment Date, facsimile transmission, letter or any other written
form setting forth the name of the Holder, the principal amount
of Notes delivered for purchase, and a statement that such Holder
is withdrawing its Change of Control Payment Notice;
(9) that Notes as to which a Change in Control Payment
Notice has been given may be converted into Shares of Beneficial
Interest pursuant to this Section 6.09 only to the extent that
any Change in Control Payment Notice given by the Holder has been
withdrawn in accordance with the terms of this Indenture; and
41
(10) that Holders whose Notes are being purchased only in
part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which unpurchased
portion must be equal to $1,000 in principal amount or an
integral multiple thereof.
The Company shall comply with the requirements of Rule 13e-4 and Rule 14e-1
under the Exchange Act, file a Schedule TO or any successor or similar schedule,
if required, under the Exchange Act and comply with any other federal, state and
other securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of Notes in
connection with a Change in Control.
A "Change in Control" shall be deemed to have occurred if any of the
following occurs after the date hereof:
(i) any "person" or "group" (as such terms are defined below) is or
becomes the "beneficial owner" (as defined below), directly or indirectly
of shares of Voting Stock of the Company representing 50% or more of the
total voting power of all outstanding classes of Voting Stock of the
Company or has the power, directly or indirectly, to elect a majority of
the members of the Board of Trustees of the Company;
(ii) during any consecutive two-year period, individuals who at the
beginning of that two-year period constituted the Company's Board of
Trustees (together with any new trustees whose election to the Company's
Board of Trustees, or whose nomination for election by the Company's
shareholders, was approved by a vote of a majority of the trustees who were
either trustees at the beginning of such period or whose election or
nomination for election was approved by the Board of Trustees or nominating
committee thereof, the majority of the members of which meet the above
criteria) cease for any reason to constitute a majority of the Company's
Board of Trustees then in office;
(iii) the Company consolidates with, or merges with or into, another
Person or the Company sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of the assets of the
Company, or any Person consolidates with, or merges with or into, the
Company, in any such event other than pursuant to a transaction in which
the Persons that "beneficially owned" (as defined below), directly or
indirectly, shares of Voting Stock of the Company immediately prior to such
transaction "beneficially own" (as defined below), directly or indirectly,
shares of Voting Stock of the Company representing at least a majority of
the total voting power of all outstanding classes of Voting Stock of the
surviving or transferee Person; or
(iv) holders of the Capital Stock of the Company approve any plan or
proposal for the liquidation or dissolution of the Company (whether or not
otherwise in compliance with this Indenture).
A Change in Control shall not be deemed to have occurred if:
(i) the Closing Sale Price of Shares of Beneficial Interest for any
five Trading Days during the ten Trading Days immediately preceding the
consummation of
42
the Change in Control is at least equal to 105% of the Conversion Price in
effect on such day; or
(ii) in the case of a merger or consolidation, all of the
consideration (excluding cash payments for fractional shares and cash
payments pursuant to dissenters' appraisal rights) in the merger or
consolidation constituting the Change in Control consists of common stock
traded on a United States national securities exchange, quoted on the
Nasdaq National Market or traded on the Toronto Stock Exchange, or any
successor thereto (or which will be so traded or quoted when issued or
exchanged in connection with such change in control) and as a result of
such transaction or transactions the Notes become convertible solely into
such common stock.
For the purpose of the definition of "Change in Control", (i) "person"
and "group" have the meanings given such terms under Section 13(d) and
14(d) of the Exchange Act or any successor provision to either of the
foregoing, and the term "group" includes any group acting for the purpose
of acquiring, holding or disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act or any successor provision thereto, (ii)
a "beneficial owner" shall be determined in accordance with Rule 13d-3
under the Exchange Act, as in effect on the date of this Indenture, except
that the number of shares of Voting Stock of the Company shall be deemed to
include, in addition to all outstanding shares of Voting Stock of the
Company and Unissued Shares (as defined below) deemed to be held by the
"person" or "group" (as such terms are defined above) or other Person with
respect to which the Change in Control determination is being made, all
unissued shares deemed to be held by all other Persons, and (iii) the terms
"beneficially owned" and "beneficially own" shall have meanings correlative
to that of "beneficial owner". The term "unissued shares" means shares of
Voting Stock not outstanding that are subject to options, warrants, rights
to purchase or conversion privileges exercisable within 60 days of the date
of determination of a Change in Control, including the Shares of Beneficial
Interest issuable upon conversion of the Notes.
(b) A Holder may exercise its rights pursuant to this Section 6.09 upon
delivery of a written notice (which shall be in substantially the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Notes and which may
be delivered by letter, overnight courier, hand delivery, facsimile transmission
or in any other written form and, in the case of Global Notes, may be delivered
electronically or by other means in accordance with the Depositary's customary
procedures) of the exercise of such rights (a "Change in Control Payment
Notice") to any Paying Agent at any time prior to the close of business on the
Business Day next preceding the Change in Control Payment Date.
Notwithstanding anything herein to the contrary, any Holder delivering to a
Paying Agent the Change in Control Payment Notice contemplated by this Section
6.09(b) shall have the right to withdraw such Change in Control Payment Notice
in whole or in a portion thereof that is a principal amount of $1,000 or in an
integral multiple thereof at any time prior to the close of business on the
Business Day next preceding the Change in Control Payment Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section
6.09(a) hereof.
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Upon receipt by any Paying Agent of the Change in Control Payment Notice
specified in this Section 6.09(b), the Holder of the Note in respect of which
such Change in Control Payment Notice was given shall (unless such Change in
Control Payment Notice is withdrawn as specified herein) thereafter be entitled
to receive the Change in Control Payment with respect to such Note. Such Change
in Control Payment shall be paid to such Holder promptly following the later of
(i) the Change in Control Payment Date with respect to such Note (provided the
conditions in this Section 6.09(b) have been satisfied) and (ii) the time of
delivery of such Note to a Paying Agent by the Holder thereof in the manner
required by this Section 6.09(b). Notes in respect of which a Change in Control
Payment Notice has been given by the Holder thereof may not be converted into
Shares of Beneficial Interest on or after the date of the delivery of such
Change in Control Payment Notice unless such Change in Control Payment Notice
has first been validly withdrawn.
(c) No later than 12:30 p.m. New York City time, on the Change in Control
Payment Date, the Company shall, to the extent lawful, (1) accept for payment
all Notes or portions thereof properly tendered pursuant to the Change in
Control Offer, (2) deposit with the Paying Agent an amount equal to the Change
in Control Payment in respect of all Notes or portions thereof so tendered and
(3) deliver or cause to be delivered to the Trustee the Notes so accepted
together with an Officers' Certificate stating the aggregate principal amount of
Notes or portions thereof being purchased by the Company. The Paying Agent shall
promptly mail to each Holder of Notes so tendered the Change of Control Payment,
and the Trustee shall promptly authenticate and mail (or cause to be transferred
by book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered by such Holder, if any; provided
that each such new Note shall be in a principal amount of $1,000 or an integral
multiple thereof. The Company shall publicly announce the results of the Change
in Control Offer on or as soon as practicable after the Change in Control
Payment Date.
If a Paying Agent holds, in accordance with the terms hereof, money
sufficient to pay the Change in Control Payment of any Note for which a Change
in Control Payment Notice has been tendered and not withdrawn in accordance with
this Indenture then, on the Change in Control Payment Date, such Note will cease
to be outstanding and the rights of the Holder in respect thereof shall
terminate (other than the right to receive the Change in Control Payment as
aforesaid).
(d) Notwithstanding anything to the contrary in this Section 6.09, the
Company shall not be required to make a Change in Control Offer upon a Change in
Control if a third party makes the Change in Control Offer in the manner, at the
times and otherwise in compliance with the requirements set forth in this
Section 6.09 hereof and all other provisions of this Indenture applicable to a
Change in Control Offer made by the Company and purchases all Notes validly
tendered and not withdrawn under such Change in Control Offer.
(e) Notwithstanding anything to the contrary in this Section 6.09, the
Company shall not be required to make a Change in Control Offer upon a Change in
Control if payment on the Notes is prohibited pursuant to the subordination
provisions of Section 5 above.
44
Section 6.10. Payment of Additional Interest.
If Additional Interest is payable by the Company pursuant to the
Registration Rights Agreement, the Company shall deliver to the Trustee an
Officers' Certificate to that effect stating (i) the amount of such Additional
Interest that is payable and (ii) the date on which such Additional Interest is
payable. Unless and until a Trust Officer of the Trustee receives such an
Officers' Certificate, the Trustee may assume without inquiry that no such
Additional Interest is payable. If the Company has paid Additional Interest
directly to the Persons entitled to it, the Company shall deliver to the Trustee
an Officers' Certificate setting forth the particulars of such payment.
Section 6.11. Limitation on Incurrence of Senior Indebtedness
The Company shall not, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to any Senior Indebtedness, except:
(1) Indebtedness that is outstanding on the date of this Indenture;
(2) Hedging Obligations;
(3) additional Senior Indebtedness in aggregate principal amount (or
accreted value, if applicable) at any time outstanding not exceeding (euro)15
million;
(4) Indebtedness incurred in connection with the acquisition of assets,
businesses or operations which are in, or related, ancillary or complementary
to, the pulp, paper, solid wood or forest products business;
(5) Indebtedness incurred to refund, refinance or replace any Senior
Indebtedness or any indebtedness of any Subsidiary outstanding on the date of
this indenture or incurred pursuant to loan or credit agreements in effect on
the date of this indenture and any further refinancings thereof;
(6) guarantees of Indebtedness or other obligations or liabilities of the
Company's Subsidiaries;
No Subsidiary of the Company established after the date of this Indenture
may incur Indebtedness (other than guarantees of Senior Indebtedness of the
Company permitted to be incurred under the Indenture) unless such Subsidiary is
primarily engaged in a business other than investing in securities of the
Company or any of its Subsidiaries. Except as provided in the preceding
sentence, this Indenture does not limit the ability of any Subsidiary of the
Company to incur Indebtedness at any time.
Section 6.12. Limitation on Liens.
The Company shall not create, incur, assume or otherwise cause or suffer to
exist or become effective any lien of any kind (other than Permitted Liens) upon
any of the Company's property or assets, now owned or hereafter acquired
(including shares of any Subsidiary of the
45
Company), unless all payments due under this Indenture and the Notes are secured
on an equal and ratable basis with the obligations so secured until such time as
such obligations are no longer secured by a lien. Nothing in this Section 6.12
shall prevent any Subsidiary of the Company from granting a Lien on any of its
assets.
The term "Permitted Liens" means:
(i) liens securing Senior Indebtedness permitted by this Indenture to
be incurred;
(ii) liens securing purchase money obligations incurred for the
purpose of financing all or any part of the purchase price or cost of
construction or improvement of property, plant or equipment used in the
business of the Company or any Subsidiary of the Company;
(iii) liens securing debt incurred or assumed in connection with the
acquisition of other assets, businesses and operations permitted by the
terms of this Indenture;
(iv) liens in favor of the Company;
(v) liens on property of a person existing at the time such person is
merged with or into or consolidated with the Company; provided that such
liens were not incurred in contemplation of such merger or consolidation
and do not extend to any assets other than those of the person merged into
or consolidated with the Company;
(vi) liens securing Hedging Obligations, provided that such Hedging
Obligations are permitted under this Indenture;
(vii) liens on property existing at the time of acquisition of the
property by the Company, provided that such liens were not incurred in
contemplation of such acquisition;
(viii) liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds or other obligations of a like
nature;
(ix) liens existing on the date of this Indenture;
(x) liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded,
provided that any reserve or other appropriate provision as is required in
conformity with GAAP has been made therefore;
(xi) liens arising out of judgments or awards arising from legal
proceedings being contested in good faith by appropriate proceedings and
execution thereof is stayed;
(xii) liens imposed by law, such as carriers', warehousemen's,
landlord's and mechanics' liens, in each case for sums not yet due or being
contested in good faith by appropriate proceedings;
46
(xiii) other liens incurred in the ordinary course of business of the
Company with respect to obligations that do not exceed(euro)4 million at
any one time outstanding; and
(xiv) any extension, renewal or replacement, in whole or part, or any
permitted lien described above, provided that any such lien so extended,
renewed or replaced shall not extend to other property of the Company other
than such item of property covered by such lien or by improvement thereon
or additions or accessions thereto.
Section 6.13. Prohibition on Incurrence of Senior Subordinated Debt.
The Company shall not incur, create, issue, assume or otherwise become
liable for any Indebtedness that is subordinate or junior in right of payment to
any Senior Indebtedness of the Company and senior in any respect in right of
payment to the Notes.
ARTICLE 7.
SUCCESSORS
Section 7.01. Merger, Consolidation, or Sale of Assets.
The Company shall not, directly or indirectly, consolidate or merge with or
into (whether or not the Company is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all its
properties or assets as a whole in one or more related transactions to, another
Person unless (i) the Company is the surviving corporation or the Person formed
by or surviving any such consolidation or merger (if other than the Company) or
to which such sale, assignment, transfer, lease, conveyance or other disposition
has been made is a corporation organized or existing under the laws of the
United States, any state of the United States, or the District of Columbia,
Canada, or any province or territory of Canada, (ii) the Person formed by or
surviving any such consolidation or merger (if other than the Company) or the
Person to which such sale, assignment, transfer, lease, conveyance or other
disposition has been made assumes all the Obligations of the Company under the
Registration Rights Agreement, the Notes and this Indenture pursuant to a
supplemental Indenture in a form reasonably satisfactory to the Trustee, (iii)
immediately after giving effect to such transaction, no Default or Event of
Default has occurred and is continuing; and (iv) the Company or the surviving
corporation, as the case may be, has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such merger,
consolidation, sale, assignment, transfer, lease, conveyance, transfer or other
dispositions comply with this Article 7 and that all conditions precedent herein
provided for relating to such transaction have been satisfied.
Section 7.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all the assets of the
Company in accordance with Section 7.01 hereof, the successor corporation formed
by such consolidation or into or with which the Company is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, assignment, transfer, lease, conveyance or
other disposition, the provisions of this Indenture referring to the "Company"
shall refer instead to the successor corporation and not to the Company), and
may exercise every right and power of the Company
47
under this Indenture with the same effect as if such successor Person had been
named as the Company herein; provided, however, that the Company shall not be
discharged from the obligations it may have under a supplemental indenture
pursuant to Section 4.12; provided further, the Company shall not be relieved
from the obligation to pay the principal, premium, if any, Additional Interest,
if any, and interest on the Notes except in the case of a sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all the
Company's assets that meets the requirements of Section 7.01 hereof.
ARTICLE 8.
DEFAULTS AND REMEDIES
Section 8.01. Events of Default.
An "Event of Default" occurs if:
(a) the Company fails to pay principal on any Note when due, whether or not
prohibited by the subordination provisions in Section 5 hereof;
(b) the Company fails to pay any interest, including any Additional
Interest, on any Note when due if such failure continues for 30 days, whether or
not prohibited by the subordination provisions of Section 5 hereof;
(c) the Company fails to perform any other agreement required of the
Company in this Indenture if such failure continues for 60 days after notice is
given in accordance with this Indenture;
(d) the Company fails to pay the purchase price of any Note when due,
whether or not prohibited by the subordination provisions of Section 5 hereof;
(e) the Company fails to provide timely notice of a Change in Control if
such failure continues for 30 days after such Change in Control;
(f) any Indebtedness for money borrowed by the Company or one of the
Company's Significant Subsidiaries (all or substantially all of the outstanding
Voting Stock of which are owned, directly or indirectly, by the Company) in an
aggregate outstanding principal amount in excess of (euro)10.0 million is not
paid at final maturity or upon acceleration and such Indebtedness is not
discharged, or such acceleration is not cured or rescinded, within 30 days after
written notice as provided in this Indenture; and
(g) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Company or one of the Company's
Significant Subsidiaries in an involuntary case;
(ii) appoints a custodian of the Company or one of the Company's
Significant Subsidiaries or for all or substantially all of the property of
the Company; or
48
(iii) orders the liquidation of the Company or one of the Company's
Significant Subsidiaries; and the order or decree remains unstayed and in
effect for 60 consecutive days.
Section 8.02. Acceleration.
If any Event of Default (other than an Event of Default specified in clause
(g) of Section 8.01 hereof) with respect to the Company 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 principal amount of the
Notes to be due and payable immediately. Upon any such declaration, the Notes
shall become due and payable immediately. Notwithstanding the foregoing, if an
Event of Default specified in clause (g) of Section 8.01 hereof occurs with
respect to the Company, all outstanding Notes shall be due and payable
immediately without further action or notice. Any payment by the Company on the
Notes following any such acceleration will be subject to the subordination
provisions of Article 5 hereof. Before a judgment or decree is entered based on
such acceleration, the Holders of a majority in aggregate principal amount of
the then outstanding Notes by written notice to the Trustee may on behalf of all
of the Holders rescind an acceleration and its consequences if all existing
Events of Default (except nonpayment of principal that has become due solely
because of the acceleration) have been cured or waived.
Section 8.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal, premium, if any, and
Additional Interest, 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
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 8.04. Waiver of Past Defaults.
Subject to Section 8.02, Holders of not less than a majority in aggregate
principal amount of the then outstanding Notes by notice to the Trustee may on
behalf of the Holders of all of the Notes waive an existing Default or Event of
Default and its consequences hereunder, except a continuing Default or Event of
Default in the payment of the principal of, premium, if any, and Additional
Interest, if any, or interest on, the Notes (including in connection with an
offer to purchase) or a failure by the Company to convert any Notes into Shares
of Beneficial Interest in accordance with the provisions of the Notes and
Article 4 of this Indenture, or a failure to comply with any of the provisions
of this Indenture that would require the consent of the Holder of each
outstanding Note affected to waive such failure (provided, however, that the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related
payment Default that resulted from such
49
acceleration). Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 8.05. Control by Majority.
Subject to the Trustee's duties in the case of an Event of Default, the
Trustee will not be obligated to exercise any of its rights or powers at the
request of the Holders, unless the Holders have offered to the Trustee
reasonable indemnity. Subject to this Indenture, applicable law and the
Trustee's indemnification, the Holders of a majority in aggregate principal
amount of the then outstanding Notes may direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee or
exercising any trust or power conferred on it with respect to the Notes.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture, 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.
Section 8.06. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this Indenture or
the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then outstanding
Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee indemnity reasonably satisfactory to the Trustee against
any loss, liability or expense resulting from instituting such proceeding as
Trustee;
(d) 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
indemnity; and
(e) during such 60-day period the Holders of a majority in aggregate
principal amount of the then outstanding Notes did not give the Trustee a
direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 8.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium, if any, and
Additional Interest, if any, and interest on the Note, on or after the
respective due dates expressed in the Note (including in connection with an
offer to purchase), to convert such Note in accordance with Article 4 or to
bring suit for the
50
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Section 8.08. Collection Suit by Trustee.
If an Event of Default specified in Section 8.01(a) or (b) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount of
principal of, premium, if any, and Additional Interest, if any, and interest
remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 8.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
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 9.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 9.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 8.10. Priorities.
If the Trustee collects any money pursuant to this Article, subject to
Article 5 of this Indenture, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 9.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes
for principal, premium, if any, and Additional Interest, if any, and
interest, ratably, without
51
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any, and Additional
Interest, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 8.10.
Section 8.11. 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 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 does
not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to
Section 8.07 hereof, or a suit by Holders of more than 10% in aggregate
principal amount of the then outstanding Notes.
ARTICLE 9.
TRUSTEE
Section 9.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(i) 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
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture (but need
not confirm or investigate the accuracy of mathematical calculations or
other facts stated therein).
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
52
(i) this paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) 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 pursuant to Section 8.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 9.02. Rights of Trustee.
(a) The Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of Indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties. The Trustee shall not be bound to make any inquiry or investigation
into the matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of Indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or 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 of its choice and the written 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 act and rely and shall be protected in acting and
relying in good faith on the opinion or advice of, or information obtained from,
any counsel, accountant, appraiser or other expert or adviser, whether retained
or employed by the Company or by the Trustee, in relation to any matter arising
in the administration of the trusts hereof.
53
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it reasonably believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if evidenced
by a Company Request or Company Order.
(f) The Trustee shall not be charged with knowledge of any Default or Event
of Default with respect to the Notes unless either (1) a Responsible Officer
shall have actual knowledge of such Default or Event of Default or (2) written
notice of such Default or Event of Default shall have been received by the
Trustee from the Company or from any Holder of the Notes, and such notice
references the Notes and this Indenture.
(g) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
(h) 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.
(i) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of Officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
(j) Notwithstanding anything in this Indenture, in no event shall the
Trustee, the Paying Agent, the Conversion Agent or the Registrar be liable under
or in connection with this Indenture for indirect, special, incidental, punitive
or consequential losses or damages of any kind whatsoever, including but not
limited to lost profits, whether or not foreseeable, even if the Trustee, the
Paying Agent, the Conversion Agent or the Registrar has been advised of the
possibility thereof and regardless of the form of action in which such damages
are sought; provided that the Paying Agent, the Conversion Agent or the
Registrar is not the Company or any of its Subsidiaries.
Section 9.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company or any Affiliate of 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 it must eliminate
such conflict within 90 days, apply to the SEC for permission to continue as
trustee or resign. Any Agent may do the same with like rights and duties. The
Trustee is also subject to Sections 9.10 and 9.11 hereof.
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Section 9.04. 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.
Section 9.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Notes a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any,
Additional Interest, if any, or interest on any Note, the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders
of the Notes.
Section 9.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each June 15 beginning with the June 15 following the
date of this Indenture, and for so long as Notes remain outstanding, the Trustee
shall mail to the Holders of the Notes a brief report dated as of such reporting
date that complies with TIA Section 313(a) (but if no event described in TIA
Section 313(a) has occurred within the 12 months preceding the reporting date,
no report need be transmitted). The Trustee also shall comply with TIA Section
313(b)(2). The Trustee shall also transmit by mail all reports as required by
TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of Notes
shall be mailed to the Company and filed with the SEC and each stock exchange on
which the Notes are listed in accordance with TIA Section 313(d). The Company
shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
Section 9.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company (including
this Section 9.07) and defending itself against any claim (whether asserted by
the Company or any Holder or any other Person) or liability in connection
55
with the exercise or performance of any of its powers or duties hereunder,
except to the extent any such loss, liability or expense may be attributable to
its negligence or bad faith. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. Failure by the Trustee to so notify
the Company shall not relieve the Company of its Obligations hereunder. The
Company shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee shall have the right to employ separate counsel in any and all
actions or proceedings arising out of or in connection with the acceptance or
administration of its duties under this Indenture and participate in the
investigation and defense thereof, and the Company shall pay the reasonable fees
and expenses of such separate counsel; provided, however, that the Trustee may
only employ separate counsel at the expense of the Company if in the reasonable
judgment of the Trustee (i) a conflict of interest exists by reason of common
representation or (ii) there are legal defenses available to the Trustee that
are different from or are in addition to those available to the Company or if
all parties commonly represented do not agree as to the action (or inaction) of
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
The Obligations of the Company under this Section 9.07 shall survive the
resignation or removal of the Trustee and the satisfaction and discharge of this
Indenture.
To secure the Company's payment Obligations in this Section, the Trustee
shall have a lien prior to the Notes on all money or property held or collected
by the Trustee, except that held in trust to pay principal and interest on
particular Notes. Such lien shall survive the satisfaction and discharge of this
Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 8.01(g) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2) to
the extent applicable.
Section 9.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company may remove the
Trustee if:
(a) the Trustee fails to comply with Section 9.10 hereof;
(b) 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;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
56
(d) 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 a majority in 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, the Company, or
the 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 who has been a Holder
for at least six months, fails to comply with Section 9.10, 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 this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee; provided all sums owing to the Trustee
hereunder have been paid and subject to the lien provided for in Section 9.07
hereof. Notwithstanding replacement of the Trustee pursuant to this Section
9.08, the Company's obligations under Section 9.07 hereof shall continue for the
benefit of the retiring Trustee.
Section 9.09. Successor Trustee by Merger, etc.
Any corporation or association into which the Trustee may be merged or
converted, or with which it may be consolidated, or to which it may sell or
transfer its corporate trust business and assets as a whole or substantially as
a whole, or any corporation or association resulting from any such merger,
conversion, sale, transfer or consolidation to which it shall be a party, shall
be and become successor Trustee hereunder and vested with all of the title to
the Trust Estate, and all the trusts, powers, discretion, immunities, privileges
and all other matters as was its predecessor, without the execution or filing of
any instrument or any further act, deed or conveyance on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 9.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100 million
as set forth in its most recent published annual report of condition.
57
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section
310(b).
Section 9.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 10.
SATISFACTION AND DISCHARGE
Section 10.01. Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect as
to all Notes issued hereunder, when:
(1) either:
(a) all outstanding Notes have or will become due and payable at their
scheduled maturity, within one year; or
(b) all outstanding Notes that are scheduled for cancellation have become
due and payable by reason of the making of a notice of redemption or
otherwise or will become due and payable within one year;
and the Company has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust solely for the benefit of the Holders,
cash in U.S. dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient without consideration of any
reinvestment of interest, to pay and discharge the entire Indebtedness on
the Notes not delivered to the Trustee for cancellation for principal,
premium, if any, and Additional Interest, if any, and accrued interest to
the date of maturity or redemption; provided, however, that the foregoing
shall not discharge the Company's obligation to effect conversion,
registration of transfer or exchange of securities in accordance with the
terms of this Indenture;
(2) no Default or Event of Default shall have occurred and be continuing on the
date of such deposit or shall occur as a result of such deposit and such
deposit will not result in a breach or violation of, or constitute a
Default under, any other instrument to which the Company is a party or by
which the Company is bound;
(3) the Company has paid or caused to be paid all sums payable by it under this
Indenture; and
(4) the Company has delivered irrevocable instructions to the Trustee under
this Indenture to apply the deposited money toward the payment of the Notes
at maturity or the redemption date, as the case may be.
58
In addition, the Company must deliver an Officers' Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if money
shall have been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section, the provisions of Section 10.02 and of Article 4 shall
survive.
Section 10.02. Application of Trust Money; Reinstatement.
All money deposited with the Trustee pursuant to Section 10.01 shall be
held in trust and applied by it, in accordance with the provisions of the Notes
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
If the Trustee or Paying Agent is unable to apply any money or Government
Securities in accordance with Section 10.01 by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 10.01 until such time as
the Trustee or such Paying Agent is permitted to apply all such money in
accordance with Section 10.01; provided that if the Company has made any payment
of principal of, premium, if any, Additional Interest, if any, or interest on
any Notes because of the reinstatement of its Obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or Government Securities held by the Trustee or Paying Agent.
Section 10.03. Repayment to Company.
The Trustee and each Paying Agent shall promptly pay to the Company upon
request any excess money (i) deposited with them pursuant to Section 10.01 and
(ii) held by them at any time.
The Trustee and each Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal or interest that remains
unclaimed for two years after a right to such money has matured; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such payment, may at the expense of the Company cause to be mailed to each
Holder entitled to such money notice that such money remains unclaimed and that
after a date specified therein, which shall be at least 30 days from the date of
such mailing, any unclaimed balance of such money then remaining will be repaid
to the Company. After payment to the Company, Holders entitled to money must
look to the Company for payment as general creditors.
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ARTICLE 11.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 11.01. Without Consent of Holders of Notes.
The Company and the Trustee may amend or supplement this Indenture or the
Notes without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency or make any other change
that does not, in the good faith opinion of the Board of Trustees and the
Trustee, adversely affect the rights of any Holders of Notes in any material
respect;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes or to alter the provisions of Article 2 hereof (including the
related definitions) in a manner that does not materially adversely affect any
Holder;
(c) to provide for the assumption of the Company's Obligations to the
Holders of the Notes by a successor to the Company pursuant to Article 7 hereof;
(d) to make any change that would provide any additional rights or benefits
to the Holders of the Notes or that does not, in the good faith opinion of the
Board of Trustees of the Company and the Trustee adversely affect the legal
rights hereunder of any Holder of the Note in any material respect;
(e) to comply with requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA;
(f) to conform this Indenture to the language of any covenant or related
definition in the description of the Notes contained in the Company's Offering
Memorandum dated October 6, 2003 in respect of the Notes; or
(g) pursuant to Section 4.14 hereof.
Upon the request of the Company accompanied by a resolution of its Board of
Trustees authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
9.02 hereof, the Trustee shall join with the Company in the execution of any
amended or supplemental Indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
Section 11.02. With Consent of Holders of Notes.
Except as provided below in this Section 11.02, the Company and the Trustee
may amend or supplement this Indenture and the Notes with the consent of the
Holders of at least a majority in aggregate principal amount of the Notes then
outstanding voting as a single class (including consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the
60
Notes), and, subject to Sections 8.04 and 8.07 hereof, any existing Default or
Event of Default (other than a Default or Event of Default in the payment of the
principal of, premium, if any, or interest on the Notes, except a payment
Default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture or the Notes may be waived with the consent
of the Holders of a majority in aggregate principal amount of the then
outstanding Notes voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes). Sections 2.08 and 2.09 hereof shall determine which Notes are considered
to be "outstanding" for purposes of this Section 11.02.
Upon the request of the Company accompanied by a resolution of its Board of
Trustees authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 9.02 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture directly affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter into
such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 11.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 8.04 and 8.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding voting as a
single class 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 affected, an amendment or waiver under this Section 11.02 may not
(with respect to any Notes held by a non-consenting Holder):
(a) change the stated maturity of the principal of, or interest (including
Additional Interest) on, any Note;
(b) reduce the principal amount of or any interest on any Note;
(c) reduce the amount of principal payable upon acceleration of the
maturity of any Note;
(d) change the place or currency of payment of principal of, or any
interest (including Additional Interest) on, any Note;
(e) impair the right to institute suit for the enforcement of any payment
on, or with respect to, any Note;
61
(f) modify the provisions with respect to the purchase right of the Holders
upon a Change in Control in a manner adverse to Holders;
(g) modify the subordination provisions in Article 5 hereof in a manner
materially adverse to the Holders of Notes;
(h) adversely affect the right of Holders to convert Notes pursuant to
Article 4 hereof other than as provided in this Indenture;
(i) reduce the percentage in principal amount of outstanding Notes required
for modification or amendment of this Indenture provided for in this Article 11;
(j) reduce the percentage in principal amount of outstanding Notes
necessary for waiver of compliance set forth in Section 8.04 and Section 8.07;
or
(k) modify provisions with respect to Section 11.02 hereof, except to
increase the percentage required for modification or waiver or to provide for
consent of each affected Holder of the Notes.
Section 11.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall be set
forth in a amended or supplemental Indenture that complies with the TIA as then
in effect.
Section 11.04. 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 of a Note 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 of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 11.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of a
Company Order, authenticate new Notes that reflect the amendment, supplement or
waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
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Section 11.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article 11 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment or supplemental Indenture until the Board of Trustees
of the Company approves it. In executing any amended or supplemental Indenture,
the Trustee shall be entitled to receive and (subject to Section 9.01 hereof)
shall be fully protected in relying upon, in addition to the documents required
by Section 12.04 hereof, an Officers' Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental Indenture is
authorized or permitted by this Indenture.
ARTICLE 12.
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA Section 318(c), the imposed duties shall control.
Section 12.02. Notices.
Any notice or communication by the Company or the Trustee to the others is
duly given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), facsimile or overnight air
courier guaranteeing next day delivery, to the others' address:
If to the Company:
Xxxxxx International Inc
00000 Xxxxxxxxxx Xxx. Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxx, Chief Financial Officer
Facsimile: (000) 000-0000
With a copy to:
Sangra Moller
0000 Xxxxxxxxx Xxxxx
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX, Xxxxxx X00 0X0
Attn: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
If to the Trustee:
Xxxxx Fargo Bank Minnesota, N.A.
MAC N9303-110
00
Xxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Corporate Trust Services
Facsimile: (000) 000-0000
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) 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 answered back, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
Section 12.03. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA Section
312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 12.05
hereof) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee (which shall include the statements set forth in Section 12.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
64
Section 12.05. 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 Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has read
such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable such Person to
express an informed opinion as to whether or not such covenant or condition has
been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been satisfied.
Section 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar, Paying Agent or Conversion Agent may make reasonable
rules and set reasonable requirements for its functions.
Section 12.07. No Personal Liability of Directors, Officers, Employees and
Shareholders.
No past, present or future director, officer, employee, incorporator or
shareholder of the Company, as such, shall have any liability for any
Obligations of the Company under the Notes, 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. The
waiver and release are part of the consideration for issuance of the Notes.
Section 12.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other Indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such Indenture, loan or debt agreement may not be used to interpret this
Indenture.
65
Section 12.10. Successors.
All agreements of the Company in this Indenture and the Notes shall bind
its successors. All agreements of the Trustee in this Indenture shall bind its
successors.
Section 12.11. Severability.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
Section 12.12. Counterparts.
This Indenture may be executed in any number of 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 12.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
{signature pages follow}
66
SIGNATURES
IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed
this Indenture on behalf of the respective parties hereto as of the date first
above written.
XXXXXX INTERNATIONAL INC.
By: /s/ Xxxxx X.X. Xxx
------------------------------------
Name: Xxxxx X.X. Xxx
Title:
By:
------------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA, N.A.,
as Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
EXHIBIT A
[FORM OF FACE OF GLOBAL NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS NOTE IS A
GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.](1)
[THIS NOTE AND THE SHARES OF BENEFICIAL INTEREST ISSUABLE UPON CONVERSION
OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933 (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF
THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.](2)
[THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (1)
THIS NOTE AND THE SHARES OF BENEFICIAL INTEREST ISSUABLE UPON CONVERSION HEREOF
MAY NOT BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE
EXPIRATION OF THE HOLDING PERIOD UNDER RULE 144(K) (OR ANY SUCCESSOR THERETO)
UNDER THE SECURITIES ACT WHICH IS APPLICABLE TO THE NOTE OR (Y) BY ANY HOLDER
THAT WAS AN "AFFILIATE
----------
(1) This paragraph should be included only if the Note is a Global Note.
(2) These paragraphs to be included only if the Note is a Restricted Global
Note or a Restricted Definitive Note.
A-1
(WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY AT ANY
TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER
CASE, OTHER THAN (A) TO THE COMPANY OR ANY AFFILIATE THEREOF, (B) FOR SO LONG AS
THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904
OF REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM REGISTRATION PROVIDED UNDER THE SECURITIES ACT, OR (E) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER); AND (2) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY EACH PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN
A TRANSFER PURSUANT TO CLAUSE (E) ABOVE) OF THE FOREGOING RESALE RESTRICTIONS.
THE HOLDER HEREOF BY PURCHASING THE NOTE REPRESENTS AND AGREES FOR THE BENEFIT
OF THE COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER OR (2) NOT A U.S.
PERSON AND IS OUTSIDE THE U.S. WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING
THE REQUIREMENTS OF PARAGRAPH (K)(2) OF RULE 902 UNDER) REGULATION S UNDER THE
SECURITIES ACT. IN ANY CASE, THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY,
ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO THE NOTE OR ANY SHARES OF
BENEFICIAL INTEREST ISSUABLE UPON CONVERSION OF THE NOTE EXCEPT AS PERMITTED
UNDER THE SECURITIES ACT.](2)
[THE HOLDER OF THIS NOTE IS ENTITLED TO THE BENEFITS OF A REGISTRATION
RIGHTS AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO
COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.](2)
[UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS NOTE
SHALL NOT TRADE THE NOTE IN CANADA BEFORE [INSERT DATE THAT IS FOUR MONTHS AND
ONE DAY AFTER THE DISTRIBUTION DATE].](3)
----------
(3) This paragraph should be included only if the Note is issued in reliance on
Rule 903 of Regulation S.
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[FORM OF FACE OF NOTE]
XXXXXX INTERNATIONAL INC.
CUSIP/CINS:__________ No.__
8.5% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2010
Xxxxxx International Inc., a Washington business trust (the "Company",
which term shall include any successor corporation under this Indenture referred
to on the reverse hereof), promises to pay to _______________, or registered
assigns, the principal sum of _______________ Dollars ($__________) on October
15, 2010 [, or such greater or lesser amount as is indicated on the Schedule of
Exchanges of Notes on the other side of this Note].(4)
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
This Note is convertible as specified on the other side of this Note.
Additional provisions of this Note are set forth on the other side of this Note.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
XXXXXX INTERNATIONAL INC.
By:
------------------------------------
Name:
Title
By:
------------------------------------
Name:
Title:
Dated:
Trustee's Certificate of Authentication: This is one of the Notes referred to in
the within-mentioned Indenture.
XXXXX FARGO BANK MINNESOTA, N.A.,
as Trustee
-------------------------------------
Authorized Signatory
By:
---------------------------------
----------
(4) This phrase should be included only if the Note is a Global Note.
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[FORM OF REVERSE SIDE OF NOTE]
XXXXXX INTERNATIONAL INC.
8.5% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2010
1. INTEREST
Xxxxxx International Inc., a Washington business trust (the "Company",
which term shall include any successor corporation under this Indenture
hereinafter referred to), promises to pay interest on the principal amount of
this Note at the rate of 8.5% per annum. The Company shall pay interest
semiannually on April 15 and October 15 of each year (each, an "Interest Payment
Date"), commencing April 15, 2004, unless such date is not a Business Day, in
which case, the Company shall pay interest on the next succeeding Business Day
and such payment shall be deemed to have been paid on such Interest Payment Date
and no interest shall accrue during the additional period of time. Interest on
the Notes shall accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from October 10, 2003; provided, however, that
if there is not an existing Default in the payment of interest and if this Note
is authenticated between a record date referred to on the face hereof and the
next succeeding Interest Payment Date, interest shall accrue from such Interest
Payment Date. Interest will be computed on the basis of a 360-day year of twelve
30-day months. Any reference herein to interest accrued or payable as of any
date shall include any Additional Interest accrued or payable on such date as
provided in the Registration Rights Agreement.
2. METHOD OF PAYMENT
The Company shall pay interest on this Note (except Defaulted interest) to
the Person who is the Holder of this Note at the close of business on April 1 or
October 1, as the case may be, next preceding the related Interest Payment Date.
The Holder must surrender this Note to a Paying Agent to collect payment of
principal. The Company will pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. The Company may pay principal and interest in respect of any
Definitive Note by check or wire payable in such money; provided, however, that
a Holder with an aggregate principal amount in excess of $1,000,000 will be paid
by wire transfer in immediately available funds at the election of such Holder.
The Company may mail an interest check to the Holder's registered address.
Notwithstanding the foregoing, so long as this Note is registered in the name of
a Depositary or its nominee, all payments hereon shall be made by wire transfer
of immediately available funds to the account of the Depositary or Xxxxx Fargo
Bank Minnesota, N.A.
3. PAYING AGENT, REGISTRAR AND CONVERSION AGENT
Initially, Xxxxx Fargo Bank Minnesota, N.A., (the "Trustee," which term
shall include any successor trustee under this Indenture hereinafter referred
to) will act as Paying Agent, Registrar and Conversion Agent. The Company may
change any Paying Agent, Registrar or Conversion Agent without notice to the
Holder. The Company or any of its Subsidiaries may, subject to certain
limitations set forth in this Indenture, act as Paying Agent or Registrar.
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4. INDENTURE, LIMITATIONS
This Note is one of a duly authorized issue of Notes of the Company
designated as its 8.5% Convertible Senior Subordinated Notes due 2010 (the
"Notes"), issued under an Indenture dated as of October 10, 2003, (together with
any supplemental Indentures thereto, the "Indenture"), between the Company and
the Trustee. The terms of this Note include those stated in the Indenture and
those required by or made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended, as in effect on the date of the Indenture.
This Note is subject to all such terms, and the Holder of this Note is referred
to the Indenture and said Act for a statement of them. In the event of any
conflict or inconsistency between this Note and the Indenture, the Indenture
shall conclusively govern resolution thereof for all purposes. All capitalized
terms used but not defined herein shall have the meaning ascribed to such term
in this Indenture.
The Notes are subordinated unsecured Obligations of the Company limited to
$82,500,000 aggregate principal amount, subject to Section 2.07 of this
Indenture.
5. OPTIONAL REDEMPTION
The Company shall not have the option to redeem the Notes prior to October
15, 2008. Thereafter the Company shall have the option to redeem the Notes in
whole, or in part, upon not less than 20 nor more than 60 days' notice by mail
to Holders of the Notes, at 100% of the principal amount of the Notes together
with accrued interest and Additional Interest, if any, up to, but not including,
the redemption date; provided that if the redemption date falls after an
interest payment record date and on or before an Interest Payment Date, the
applicable interest payment shall be payable to the same Person that will be
paid the principal amount of such Note upon redemption.
No sinking fund is provided for the Notes.
6. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at least 20 days
but not more than 60 days before the redemption date to each Holder of Notes to
be redeemed at its registered address. Notes in denominations larger than $1,000
may be redeemed in part, but only in whole multiples of $1,000. On and after the
redemption date, subject to the deposit with the Paying Agent of funds
sufficient to pay the redemption price plus accrued interest, if any, accrued
to, but not including, the redemption date, interest shall cease to accrue on
Notes or portions of them called for redemption.
7. PURCHASE OF NOTES AT OPTION OF HOLDER UPON A CHANGE IN CONTROL
At the option of the Holder and subject to the terms and conditions of this
Indenture, the Company shall become obligated to purchase all or any part
specified by the Holder (so long as the principal amount of such part is $1,000
or an integral multiple of $1,000 in excess thereof) of the Notes held by such
Holder on the date that is 30 Business Days after the occurrence of a Change in
Control, at a purchase price equal to 100% of the principal amount thereof
together with accrued interest up to, but excluding, the Change in Control
Payment Date. The Holder
A-5
shall have the right to withdraw any Change in Control Payment Notice (in whole
or in a portion thereof that is $1,000 or an integral multiple of $1,000 in
excess thereof) at any time prior to the close of business on the Business Day
next preceding the Change in Control Payment Date by delivering a written notice
of withdrawal to the Paying Agent in accordance with the terms of the Indenture.
8. CONVERSION
A Holder of a Note may convert the principal amount of such Note (or any
portion thereof equal to $1,000 or any integral multiple of $1,000 in excess
thereof) into Shares of Beneficial Interest at any time prior to the last
Business Day prior to the close of business on October 15, 2010; provided,
however, that if the Note is called for redemption or subject to purchase upon a
Change in Control, the conversion right will terminate at the close of business
on the Business Day immediately preceding the redemption date or the Change in
Control Payment Date, as the case may be, for such Note or such earlier date as
the Holder presents such Note for redemption or purchase (unless the Company
shall default in making the redemption payment or Change in Control Payment, as
the case may be, when due, in which case the conversion right shall terminate at
the close of business on the date such Default is cured and such Note is
redeemed or purchased).
The initial Conversion Price is $7.75 per share, subject to adjustment
under certain circumstances. The number of Shares of Beneficial Interest
issuable upon conversion of a Note is determined by dividing the principal
amount of the Note or portion thereof converted by the Conversion Price in
effect on the Conversion Date. No fractional shares will be issued upon
conversion; in lieu thereof, an amount will be paid in cash based upon the
Closing Sale Price of the Shares of Beneficial Interest on the Trading Day
immediately prior to the Conversion Date.
To convert a Note, a Holder must (a) complete and manually sign the
conversion notice set forth below and deliver such notice to a Conversion Agent,
(b) surrender the Note to a Conversion Agent, (c) furnish appropriate
endorsements and transfer documents if required by a Registrar or a Conversion
Agent, and (d) pay any transfer or similar tax, if required. Notes so
surrendered for conversion (in whole or in part) during the period from the
close of business on any regular record date to the opening of business on the
next succeeding Interest Payment Date (excluding Notes or portions thereof
called for redemption or subject to purchase upon a Change in Control on a
redemption date or Change in Control Payment Date, as the case may be, during
the period beginning at the close of business on a regular record date and
ending at the close of business on the next succeeding Interest Payment Date, or
if such Interest Payment Date is not a Business Day, the next such Business Day)
shall also be accompanied by payment in funds acceptable to the Company of an
amount equal to the interest payable on such Interest Payment Date on the
principal amount of such Note then being converted, and such interest shall be
payable to such registered Holder notwithstanding the conversion of such Note,
subject to the provisions of this Indenture relating to the payment of defaulted
interest by the Company. If the Company defaults in the payment of interest
payable on such Interest Payment Date, the Company shall promptly repay such
funds to such Holder. A Holder may convert a portion of a Note equal to $1,000
or any integral multiple thereof.
A Note in respect of which a Holder had delivered a Change in Control
Payment Notice exercising the option of such Holder to require the Company to
purchase such Note may be
A-6
converted only if the Change in Control Payment Notice is withdrawn in
accordance with the terms of this Indenture.
9. SUBORDINATION
The Indebtedness evidenced by the Notes is, to the extent and in the manner
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full in cash of all Senior Indebtedness. Any Holder by
accepting this Note agrees to and shall be bound by such subordination
provisions, authorizes the Trustee to give them effect and appoints the Trustee
as attorney-in-fact for such purpose. In addition to all other rights of Senior
Indebtedness described in the Indenture, the Senior Indebtedness shall continue
to be Senior Indebtedness and entitled to the benefits of the subordination
provisions irrespective of any amendment, modification or waiver of any terms of
any instrument relating to the Senior Indebtedness or any extension or renewal
of the Senior Indebtedness. Such subordination is intended for the benefit of,
and may be enforced by, each Holder of Senior Indebtedness or Designated Senior
Indebtedness, as contemplated by the Indenture.
10. DENOMINATIONS, TRANSFER, EXCHANGE
The Notes are in registered form without coupons in denominations of $1,000
and integral multiples of $1,000. A Holder may register the transfer of or
exchange Notes in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes or other governmental charges that may be imposed
in relation thereto by law or permitted by this Indenture.
11. PERSONS DEEMED OWNERS
The Holder of a Note may be treated as the owner of it for all purposes.
12. UNCLAIMED MONEY
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or Paying Agent will pay the money back to the Company at its
written request. After that, Holders entitled to money must look to the Company
for payment.
13. AMENDMENT, SUPPLEMENT AND WAIVER
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 aggregate
principal amount of the Notes then outstanding, and an existing Default or Event
of Default and its consequences, or compliance with any provision of the
Indenture or the Notes, may be waived in any particular instance with the
consent of the Holders of a majority in aggregate principal amount of the Notes
then outstanding. Without the consent of or notice to any Holder, the Company
and the Trustee may amend or supplement the Indenture or the Notes to, among
other things, cure any ambiguity, defect or inconsistency or make any other
change that does not, in the good faith opinion of the Board of Trustees of the
Company and the Trustee, adversely affect the rights of any Holder in any
material respect.
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14. SUCCESSOR CORPORATION
When a successor corporation assumes all the Obligations of its predecessor
under the Notes and the Indenture in accordance with the terms and conditions of
the Indenture, the predecessor corporation will (except in certain circumstances
specified in the Indenture) be released from those Obligations.
15. DEFAULTS AND REMEDIES
Under the Indenture, an Event of Default includes: (i) the Company fails to
pay principal on any Note when due, whether or not prohibited by the
subordination provisions in the Indenture; (ii) the Company fails to pay any
interest, including any Additional Interest, on any Note when due if such
failure continues for 30 days, whether or not prohibited by the subordination
provisions of the Indenture; (iii) the Company fails to perform any other
agreement required of the Company in the Indenture if such failure continues for
60 days after notice is given in accordance with the terms of the Indenture;
(iv) the Company fails to pay the purchase price of any Note when due, whether
or not prohibited by the subordination provisions of the Indenture; (v) the
Company fails to provide timely notice of a Change in Control if such failure
continues for 30 days after a Change in Control; (vi) any Indebtedness for money
borrowed by the Company or one of the Company's Significant Subsidiaries (all or
substantially all of the outstanding Voting Stock of which are owned, directly
or indirectly, by the Company) in an aggregate outstanding principal amount in
excess of $10.0 million is not paid at final maturity or upon acceleration and
such Indebtedness is not discharged, or such acceleration is not cured or
rescinded, within 30 days after written notice as provided in the Indenture; and
(vii) certain events of bankruptcy, insolvency or reorganization of the Company.
If an Event of Default (other than as a result of certain events of bankruptcy,
insolvency or reorganization of the Company) occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may declare all the Notes then outstanding due and payable
immediately, all as and to the extent provided in the Indenture. If an Event of
Default occurs as a result of certain events of bankruptcy, insolvency or
reorganization of the Company, the outstanding Notes shall become due and
payable immediately without further notice, all as and to the extent provided in
the Indenture. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Notes. Subject to certain limitations,
Holders of a majority in principal amount of the Notes then outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders notice of any continuing Default (except a Default in
payment of principal or interest) if it determines that withholding notice is in
their interests. The Company is required to file periodic reports with the
Trustee as to the absence of Default.
16. TRUSTEE DEALINGS WITH THE COMPANY
Xxxxx Fargo Bank Minnesota, N.A., the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from and
perform services for the Company or an Affiliate of the Company, and may
otherwise deal with the Company or an Affiliate of the Company, as if it were
not the Trustee.
17. NO RECOURSE AGAINST OTHERS
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A director, officer, employee or shareholder, as such, of the Company shall
not have any liability for any Obligations of the Company under the Notes or the
Indenture nor for any claim based on, in respect of or by reason of such
Obligations or their creation. The Holder of the Note by accepting the Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Note.
18. AUTHENTICATION
This Note shall not be valid until the Trustee or an authenticating agent
manually signs the certificate of authentication on the other side of this Note.
19. ABBREVIATIONS AND DEFINITIONS
Customary abbreviations may be used in the name of the Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and UGMA (= Uniform Gifts to Minors Act).
All terms defined in the Indenture and used in this Note but not
specifically defined herein are defined in the Indenture and are used herein as
so defined.
20. INDENTURE TO CONTROL; GOVERNING LAW
IN THE CASE OF ANY CONFLICT BETWEEN THE PROVISIONS OF THIS NOTE AND THE
INDENTURE, THE PROVISIONS OF THE INDENTURE SHALL CONTROL. THIS NOTE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
The Company will furnish to any Holder, upon written request and without
charge, a copy of the Indenture. Requests may be made to: Xxxxxx International
Inc., 00000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxx Xxxxxxxx, Chief Financial Officer.
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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 soc. sec. 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 or her.
Your Signature:
Date:
------------------- ----------------------------------------
(Sign exactly as your name appears on
the other side of this Note)
*Signature guaranteed by:
By:
---------------------------------
* The signature must be guaranteed by an institution which is a member of one
of the following recognized signature guaranty programs: (i) the Securities
Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP);
or (iv) such other guaranty program acceptable to the Trustee.
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CONVERSION NOTICE
To convert this Note into Shares of Beneficial Interest of the Company, check
the box: o
To convert only part of this Note, state the principal amount to be converted
(must be $1,000 or an integral multiple of $1,000): $__________.
If you want the stock certificate made out in another Person's name, fill in the
form below:
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
Your Signature:
Date:
------------------- ----------------------------------------
(Sign exactly as your name appears on
the other side of this Note)
*Signature guaranteed by:
By:
---------------------------------
* The signature must be guaranteed by an institution which is a member of one
of the following recognized signature guaranty programs: (i) the Securities
Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP);
or (iv) such other guaranty program acceptable to the Trustee.
A-11
OPTION TO ELECT REPURCHASE UPON A CHANGE IN CONTROL
To: Xxxxxx International Inc.
The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from Xxxxxx International Inc. (the "Company")
as to the occurrence of a Change in Control with respect to the Company and
requests and instructs the Company to redeem the entire principal amount of this
Note, or the portion thereof (which is $1,000 or an integral multiple thereof)
below designated, in accordance with the terms of the Indenture referred to in
this Note at the Change in Control Payment, together with accrued interest to,
but excluding, such date.
Dated:
------------------ ----------------------------------------
----------------------------------------
Signature(s)
Signature(s) must be guaranteed by a
qualified guarantor institution with
membership in an approved signature
guarantee program pursuant to Rule
17Ad-15 under the Securities Exchange
Act of 1934.
----------------------------------------
Signature Guaranty
Principal amount to be redeemed
(in an integral multiple of $1,000, if less than all):
-------------------------
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Note in every particular, without alteration or
any change whatsoever.
A-12
SCHEDULE OF EXCHANGES OF NOTES
The following exchanges, redemptions, repurchases or conversions of a part
of this Global Note have been made:
Principal Amount of
this Global Note
Following Such Amount of Decrease Amount of Increase in
Decrease (or Increase) Authorized Signatory in Principal Amount Principal Amount of
Date of Exchange of Custodian of this Global Note this Global Note
---------------------- -------------------- ------------------- ---------------------
A-13
EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF TRANSFER RESTRICTED SECURITIES(5)
Re: 8.5% Convertible Senior Subordinated Notes due 2010 (the "Notes")
of Xxxxxx International Inc.
This certificate relates to $_______ principal amount of Notes owned in
(check applicable box)
o book-entry or o definitive form by __________________________ (the
"Transferor").
The Transferor has requested a Registrar or the Trustee to exchange or
register the transfer of such Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that the Transferor is familiar with transfer
restrictions relating to the Notes as provided in Section 2.12 of the Indenture
dated as of [October , 2003] between Xxxxxx International Inc. and Xxxxx Fargo
Bank Minnesota, N.A. (the "Indenture") and the transfer of such Note is being
made pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "Securities Act") (check applicable box) or the transfer
or exchange, as the case may be, of such Note does not require registration
under the Securities Act because (check applicable box):
o Such Note is being transferred pursuant to an effective registration
statement under the Securities Act.
o Such Note is being acquired for the Transferor's own account, without
transfer.
o Such Note is being transferred to the Company or a Subsidiary of the
Company (as defined in the Indenture) of the Company.
o Such Note is being transferred to a Person the Transferor reasonably
believes is a "qualified institutional buyer" (as defined in Rule 144A or
any successor provision thereto ("Rule 144A") under the Securities Act)
that is purchasing for its own account or for the account of a "qualified
institutional buyer", in each case to whom notice has been given that the
transfer is being made in reliance on such Rule 144A, and in each case in
reliance on Rule 144A.
o Such Note is being transferred outside the United States in an offshore
transaction in accordance with Rule 904 under the Securities Act.
----------
(5) This certificate should be included only if this Note is a Restricted
Global Note or a Restricted Definitive Note.
B-1
o Such Note is being transferred pursuant to and in compliance with an
exemption from the registration requirements under the Securities Act in
accordance with Rule 144 (or any successor thereto) ("Rule 144") under the
Securities Act.
o Such Note is being transferred pursuant to and in compliance with an
exemption from the registration requirements under the Securities Act
(other than an exemption referred to above) and the Transferor hereby
further certifies that the Notes are being transferred in compliance with
the transfer restrictions applicable to the Global Notes and in accordance
with the requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel, provided by the Transferor or
transferee (a copy of which the Transferor has attached to this
certification) in form reasonably acceptable to the Company and to the
Registrar, to the effect that such transfer is in compliance with the
Securities Act.
o Check if applicable
(i) The resale of such Note is being made to a transferee resident in the
United States; (ii) such Note was not offered for resale to the transferee
in Canada; (iii) at the time the buy order was originated, the transferee
was outside Canada, or the transferor and any Person acting on its behalf
reasonably believe that the transferee was outside Canada; and (iv) neither
the transferor nor any Person acting on its behalf knows that the
transaction has been prearranged with a buyer in Canada.
Date:
------------------- ----------------------------------------
(Insert Name of Transferor)
B-2
EXHIBIT C
[FORM OF RESTRICTIVE LEGEND FOR SHARES
OF BENEFICIAL INTEREST ISSUED UPON CONVERSION]
THE SHARES OF BENEFICIAL INTEREST EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET
FORTH BELOW. THE HOLDER HEREOF AGREES THAT PRIOR TO THE DATE THAT IS TWO YEARS
AFTER THE LATER OF THE INITIAL ISSUANCE OF THE NOTE UPON THE CONVERSION OF WHICH
THE SHARE OF BENEFICIAL INTEREST EVIDENCED HEREBY WAS ISSUED AND THE LAST DATE
ON WHICH XXXXXX INTERNATIONAL, INC. (THE "COMPANY") OR ANY "AFFILIATE" (AS
DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY WAS THE OWNER OF
SUCH NOTE OR THE SHARE OF BENEFICIAL INTEREST EVIDENCED HEREBY (THE "RESTRICTION
TERMINATION DATE"): (1) IT WILL NOT RESELL OR OTHERWISE TRANSFER THE SHARE OF
BENEFICIAL INTEREST EVIDENCED HEREBY EXCEPT (A) TO THE COMPANY OR ANY AFFILIATE
THEREOF, (B) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION COMPLYING WITH
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (C) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION PROVIDED UNDER THE SECURITIES ACT
(IF AVAILABLE), OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE
AT THE TIME OF SUCH TRANSFER; (2) PRIOR TO SUCH TRANSFER BEFORE THE REGISTRATION
TERMINATION DATE (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 1(E) ABOVE), IT WILL
FURNISH TO THE COMPANY'S TRANSFER AGENT, SUCH CERTIFICATIONS, LEGAL, OPINIONS OR
OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (3) IT WILL
DELIVER TO EACH PERSON TO WHOM THE SHARE OF BENEFICIAL INTEREST EVIDENCED HEREBY
IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 1(E) ABOVE), A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND, IN ANY CASE, THE HOLDER HEREOF WILL
NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO
THE NOTE OR ANY SHARES OF BENEFICIAL INTEREST ISSUABLE UPON CONVERSION OF THE
NOTE EXCEPT AS PERMITTED BY THE SECURITIES ACT.
C-1
