Exhibit 99.7
EXECUTION COPY
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IBASIS, INC.,
THE SUBSIDIARY GUARANTORS NAMED HEREIN
AND
THE BANK OF NEW YORK, AS TRUSTEE
INDENTURE
DATED AS OF JUNE 18, 2004
8% SECURED CONVERTIBLE NOTES DUE 2007
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS................................................................................1
Section 1.1. DEFINITIONS.......................................................................1
ARTICLE 2. ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES.........................21
Section 2.1. DESIGNATION, AMOUNT AND ISSUE OF NOTES...........................................21
Section 2.2. FORM OF NOTES....................................................................22
Section 2.3. DATE AND DENOMINATION OF NOTES; PAYMENTS OF INTEREST.............................22
Section 2.4. EXECUTION OF NOTES...............................................................24
Section 2.5. EXCHANGE AND REGISTRATION OF TRANSFER OF NOTES; DEPOSITARY.......................24
Section 2.6. MUTILATED, DESTROYED, LOST OR STOLEN NOTES.......................................27
Section 2.7. TEMPORARY NOTES..................................................................28
Section 2.8. CANCELLATION OF NOTES PAID, ETC..................................................28
Section 2.9. CUSIP NUMBERS....................................................................29
ARTICLE 3. REDEMPTION OF NOTES.......................................................................29
Section 3.1. REDEMPTION PRICES................................................................29
Section 3.2. NOTICE OF REDEMPTION; SELECTION OF NOTES.........................................30
Section 3.3. PAYMENT OF NOTES CALLED FOR REDEMPTION...........................................31
Section 3.4. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION....................................32
ARTICLE 4. SUBORDINATION OF NOTES AND GUARANTY OBLIGATIONS...........................................33
Section 4.1. AGREEMENT OF SUBORDINATION.......................................................33
ARTICLE 5. PARTICULAR COVENANTS OF THE COMPANY.......................................................33
Section 5.1. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.......................................33
Section 5.2. MAINTENANCE OF OFFICE OR AGENCY..................................................33
Section 5.3. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE...............................34
Section 5.4. PROVISIONS AS TO PAYING AGENT....................................................34
Section 5.5. EXISTENCE........................................................................35
Section 5.6. STAY, EXTENSION AND USURY LAWS...................................................35
Section 5.7. COMPLIANCE CERTIFICATE...........................................................36
Section 5.8. FURTHER INSTRUMENTS AND ACTS.....................................................36
Section 5.9. PAYMENT OF TAXES AND OTHER CLAIMS................................................36
Section 5.10. LIMITATION ON ADDITIONAL INDEBTEDNESS............................................36
Section 5.11. LIENS............................................................................36
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Section 5.12. RESTRICTED PAYMENTS..............................................................37
Section 5.13. DISQUALIFIED STOCK; ISSUANCE OF PREFERRED STOCK..................................39
Section 5.14. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES...................40
Section 5.15. TRANSACTIONS WITH AFFILIATES.....................................................41
Section 5.16. restriction on INVESTMENTS.......................................................41
Section 5.17. LIMITATION ON USE OF PROCEEDS FROM ASSET SALES...................................41
Section 5.18. SUBSIDIARY GUARANTEES............................................................44
Section 5.19. ADDITIONAL SUBSIDIARY GUARANTEES.................................................44
Section 5.20. MAINTENANCE OF INSURANCE.........................................................45
Section 5.21. CORPORATE EXISTENCE..............................................................45
Section 5.22. PERFECTION OF SECURITY INTERESTS.................................................45
Section 5.23. LIMITATION ON SALE OR ISSUANCE OF CAPITAL STOCK OF RESTRICTED SUBSIDIARIES.......45
Section 5.24. PROVISIONS OF REPORTS AND OTHER INFORMATION......................................46
ARTICLE 6. NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE.............................46
Section 6.1. NOTEHOLDERS' LISTS...............................................................46
Section 6.2. PRESERVATION AND DISCLOSURE OF LISTS.............................................47
Section 6.3. REPORTS BY TRUSTEE...............................................................47
Section 6.4. REPORTS BY COMPANY...............................................................47
ARTICLE 7. DEFAULTS AND REMEDIES.....................................................................47
Section 7.1. EVENTS OF DEFAULT................................................................47
Section 7.2. ACCELERATION.....................................................................50
Section 7.3. OTHER REMEDIES...................................................................51
Section 7.4. PROCEEDINGS BY NOTEHOLDER........................................................51
Section 7.5. CONTROL BY MAJORITY..............................................................51
Section 7.6. LIMITATION ON SUITS..............................................................51
Section 7.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.............................................52
Section 7.8. COLLECTION SUIT BY TRUSTEE.......................................................52
Section 7.9. TRUSTEE MAY FILE PROOFS OF CLAIM.................................................52
Section 7.10. DELAY OR OMISSION NOT WAIVER.....................................................53
Section 7.11. PRIORITIES.......................................................................53
Section 7.12. UNDERTAKING FOR COSTS............................................................53
Section 7.13. ENFORCEMENT BY TRUSTEE...........................................................53
Section 7.14. RESTORATION OF RIGHTS AND REMEDIES...............................................53
Section 7.15. RIGHTS AND REMEDIES CUMULATIVE...................................................54
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ARTICLE 8. CONCERNING THE TRUSTEE....................................................................54
Section 8.1. DUTIES AND RESPONSIBILITIES OF TRUSTEE...........................................54
Section 8.2. RELIANCE ON DOCUMENTS, OPINIONS, ETC.............................................55
Section 8.3. NO RESPONSIBILITY FOR RECITALS, ETC..............................................57
Section 8.4. TRUSTEE, PAYING AGENTS, CONVERSION AGENTS OR REGISTRAR MAY OWN NOTES.............57
Section 8.5. MONIES TO BE HELD IN TRUST.......................................................57
Section 8.6. COMPENSATION AND EXPENSES OF TRUSTEE.............................................57
Section 8.7. OFFICERS' CERTIFICATE AS EVIDENCE................................................58
Section 8.8. CONFLICTING INTERESTS OF TRUSTEE.................................................58
Section 8.9. ELIGIBILITY OF TRUSTEE...........................................................58
Section 8.10. RESIGNATION OR REMOVAL OF TRUSTEE................................................58
Section 8.11. ACCEPTANCE BY SUCCESSOR TRUSTEE..................................................60
Section 8.12. SUCCESSION BY MERGER, ETC........................................................60
Section 8.13. LIMITATION ON RIGHTS OF TRUSTEE AS CREDITOR......................................61
ARTICLE 9. CONCERNING THE NOTEHOLDERS................................................................61
Section 9.1. ACTION BY NOTEHOLDERS............................................................61
Section 9.2. PROOF OF EXECUTION BY NOTEHOLDERS................................................61
Section 9.3. WHO ARE DEEMED ABSOLUTE OWNERS...................................................62
Section 9.4. COMPANY-OWNED NOTES DISREGARDED..................................................62
Section 9.5. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.....................................62
ARTICLE 10. NOTEHOLDERS' MEETINGS.....................................................................63
Section 10.1. PURPOSE OF MEETINGS..............................................................63
Section 10.2. CALL OF MEETINGS BY TRUSTEE......................................................63
Section 10.3. QUORUM...........................................................................63
Section 10.4. CALL OF MEETINGS BY COMPANY OR NOTEHOLDERS.......................................64
Section 10.5. QUALIFICATIONS FOR VOTING........................................................64
Section 10.6. REGULATIONS......................................................................64
Section 10.7. VOTING...........................................................................65
Section 10.8. NO DELAY OF RIGHTS BY MEETING....................................................66
ARTICLE 11. SUPPLEMENTAL INDENTURES...................................................................66
Section 11.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS...........................66
Section 11.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS..............................67
Section 11.3. EFFECT OF SUPPLEMENTAL INDENTURES................................................69
Section 11.4. NOTATION ON NOTES................................................................69
Section 11.5. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE FURNISHED TRUSTEE.........69
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ARTICLE 12. CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE.........................................69
Section 12.1. COMPANY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS...................................69
Section 12.2. SUCCESSOR CORPORATION TO BE SUBSTITUTED..........................................70
Section 12.3. OPINION OF COUNSEL TO BE GIVEN TRUSTEE...........................................71
ARTICLE 13. SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE.......................................71
Section 13.1. DISCHARGE OF INDENTURE; DEFEASANCE...............................................71
Section 13.2. DEPOSITED MONIES TO BE HELD IN TRUST BY TRUSTEE..................................73
Section 13.3. PAYING AGENT TO REPAY MONIES HELD................................................74
Section 13.4. RETURN OF UNCLAIMED MONIES.......................................................74
Section 13.5. REINSTATEMENT....................................................................74
Section 13.6. Indemnity for Government Obligations.............................................74
ARTICLE 14. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS...........................74
Section 14.1. INDENTURE AND NOTES SOLELY CORPORATE OBLIGATIONS.................................74
ARTICLE 15. CONVERSION OF NOTES.......................................................................75
Section 15.1. RIGHT TO CONVERT.................................................................75
Section 15.2. EXERCISE OF CONVERSION PRIVILEGE; ISSUANCE OF COMMON STOCK ON CONVERSION;
NO ADJUSTMENT FOR INTEREST OR DIVIDENDS..........................................75
Section 15.3. CASH PAYMENTS IN LIEU OF FRACTIONAL SHARES.......................................77
Section 15.4. CONVERSION PRICE.................................................................77
Section 15.5. ADJUSTMENT OF CONVERSION PRICE...................................................77
Section 15.6. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE........................88
Section 15.7. TAXES ON SHARES ISSUED...........................................................89
Section 15.8. RESERVATION OF SHARES; SHARES TO BE FULLY PAID; LISTING OF COMMON STOCK..........89
Section 15.9. RESPONSIBILITY OF TRUSTEE........................................................90
Section 15.10. NOTICE TO HOLDERS PRIOR TO CERTAIN ACTIONS.......................................90
ARTICLE 16. REPURCHASE UPON A REPURCHASE EVENT........................................................91
Section 16.1. REPURCHASE RIGHT.................................................................91
Section 16.2. NOTICES; METHOD OF EXERCISING REPURCHASE RIGHT, ETC..............................92
Section 16.3. CERTAIN DEFINITIONS..............................................................94
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ARTICLE 17. COLLATERAL AND SECURITY...................................................................96
Section 17.1. SECURITY DOCUMENTS...............................................................96
Section 17.2. RECORDING........................................................................97
Section 17.3. FURTHER ASSURANCES AND SECURITY..................................................97
Section 17.4. RELEASE OF COLLATERAL............................................................97
Section 17.5. AUTHORIZATION OF ACTIONS TO BE TAKEN UNDER THE SECURITY DOCUMENTS................98
Section 17.6. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE SECURITY
DOCUMENTS........................................................................98
Section 17.7. INTERCREDITOR AGREEMENT..........................................................99
ARTICLE 18. GUARANTEE OF NOTES........................................................................99
Section 18.1. SUBSIDIARY GUARANTEE.............................................................99
Section 18.2. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEE..................................101
Section 18.3. LIMITATION OF SUBSIDIARY GUARANTEE..............................................101
Section 18.4. ADDITIONAL SUBSIDIARY GUARANTORS................................................101
Section 18.5. RELEASE OF SUBSIDIARY GUARANTOR.................................................102
Section 18.6. WAIVER OF SUBROGATION...........................................................102
ARTICLE 19. MISCELLANEOUS PROVISIONS.................................................................103
Section 19.1. PROVISIONS BINDING ON COMPANY'S SUCCESSORS......................................103
Section 19.2. OFFICIAL ACTS BY SUCCESSOR CORPORATION..........................................103
Section 19.3. ADDRESSES FOR NOTICES, ETC......................................................103
Section 19.4. GOVERNING LAW...................................................................103
Section 19.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT; CERTIFICATES TO TRUSTEE.......103
Section 19.6. LEGAL HOLIDAYS..................................................................104
Section 19.7. TRUST INDENTURE ACT.............................................................104
Section 19.8. BENEFITS OF INDENTURE...........................................................104
Section 19.9. TABLE OF CONTENTS, HEADINGS, ETC................................................104
Section 19.10. AUTHENTICATING AGENT............................................................104
Section 19.11. EXECUTION IN COUNTERPARTS.......................................................105
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Reconciliation and tie between Trust Indenture Act of 1939 (the "TIA" or "Trust
Indenture Act") and this Indenture, dated as of June 18, 2004.
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Section 310(a)(1)..............................................................8.9
(a)(2).........................................................................8.9
(b)............................................................................8.8, 8.9
Section 311(a).................................................................8.13
(b)............................................................................8.13
Section 312(a).................................................................6.1
(b)............................................................................6.2
Section 313(a).................................................................6.3
(b)............................................................................6.3
(c)............................................................................6.3
(d)............................................................................6.3
Section 314(a).................................................................6.4
(a)(4).........................................................................5.8
(b)............................................................................17.2
(c)(1).........................................................................19.5
(c)(2).........................................................................19.5
(c)(3).........................................................................19.7
(e)............................................................................19.5
Section 315(a).................................................................8.1
(c)............................................................................8.1
(d)............................................................................8.1
Section 316(a) (last sentence).................................................9.4
(c)............................................................................9.1
Section 317
(b)............................................................................5.4
Section 318(a).................................................................19.7
(c)............................................................................19.7
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
Attention should also be directed to Section 318(c) of the Trust Indenture Act,
which provides that the provisions of Sections 310 to and including 317 of the
Trust Indenture Act are a part of and govern every qualified indenture, whether
or not physically contained therein.
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INDENTURE dated as of June 18, 2004 between IBASIS, INC., a Delaware
corporation (hereinafter sometimes called the "Company," as more fully set forth
in Section 1.1 hereof), the Subsidiary Guarantors (as defined in Section 1.1
hereof) from time to time party hereto and The Bank of
New York, a
New York
banking corporation, as trustee (hereinafter sometimes called the "Trustee," as
more fully set forth in Section 1.1 hereof).
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issue of its 8% Secured Convertible Notes due 2007 (hereinafter
sometimes called the "Notes"), in an aggregate principal amount not to exceed
$29,000,000 and to provide the terms and conditions upon which the Notes are to
be authenticated, issued and delivered, the Company has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all acts and things necessary to make the Notes, when executed
by the Company and authenticated and delivered by the Trustee or a duly
authorized authenticating agent, as in this Indenture PROVIDED, the valid,
binding and legal obligations of the Company, and to constitute these presents a
valid agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Notes have in all
respects been duly authorized.
That in order to declare the terms and conditions upon which the Notes
are, and are to be, authenticated, issued and delivered, and in consideration of
the premises and of the purchase and acceptance of the Notes by the holders
thereof, the Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective holders from time to time of the Notes
(except as otherwise provided below), as follows:
ARTICLE 1.
DEFINITIONS
SECTION 1.1. DEFINITIONS. The terms defined in this Section 1.1 (except
as herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section 1.1. All other
terms used in this Indenture, which are defined in the Trust Indenture Act or
which are by reference therein defined in the Securities Act (except as herein
otherwise expressly provided or unless the context otherwise requires) shall
have the meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of the execution of this Indenture. The
words "herein," "hereof," "hereunder," and words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
Subdivision. The terms defined in this Article include the plural as well as the
singular.
ACQUIRED INDEBTEDNESS: The term "Acquired Indebtedness" means
Indebtedness of any Person existing at the time such Person became or becomes a
Subsidiary of the Company (or such Person is merged into the Company or one of
the Company's Subsidiaries), or assumed in connection with the acquisition of
assets from any such Person (other than assets acquired in
the ordinary course of business), excluding Indebtedness incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary of the Company.
AFFILIATE: The term "Affiliate" of any specified person shall mean any
other person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified person. For the purposes of this
definition, "control," when used with respect to any specified person means the
power to direct or cause the direction of the management and policies of such
person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
AFFILIATE TRANSACTION: The term "Affiliate Transaction" shall have the
meaning specified in Section 5.15 hereof.
ASSET SALE: The term "Asset Sale" means (i) the sale, lease, conveyance
or other disposition that does not constitute a Restricted Payment or an
Investment by such Person of any of its non-Cash assets (including, without
limitation, by way of a sale and leaseback and including the issuance, sale or
other transfer of any of the capital stock of any Subsidiary of such Person)
other than to the Company or to any of its Wholly Owned Subsidiaries that is a
Restricted Subsidiary (including the receipt of proceeds of insurance paid on
account of the loss of or damage to any asset and awards of compensation for any
asset taken by condemnation, eminent domain or similar proceeding, and including
the receipt of proceeds of business interruption insurance); and (ii) the
issuance of Equity Interests in any Subsidiaries or the sale of any Equity
Interests in any Subsidiaries, in each case, in one or a series of related
transactions which results in proceeds with a fair market value of $1,000,000,
PROVIDED, that notwithstanding the foregoing, the term "Asset Sale" shall not
include: (a) the sale, lease, conveyance, disposition or other transfer of all
or substantially all of the assets of the Company, as permitted pursuant to
Section 12.1 hereof; (b) the sale or lease of equipment, inventory, accounts
receivable or other assets in the ordinary course of business consistent with
past practice and to the extent that such sales or leases are not part of the
sale of the business in which such equipment was used or in which such inventory
or accounts receivable arose; (c) an issuance of Equity Interests by a Wholly
Owned Subsidiary to the Company or to another Wholly Owned Subsidiary that is a
Restricted Subsidiary; (d) the grant in the ordinary course of business of any
non-exclusive license of patents, trademarks, registrations therefor and other
similar intellectual property; (e) Permitted Investments; (f) unless part of a
disposition including other assets or operations, (A) dispositions of Cash, Cash
Equivalents and Investment Grade Securities, (B) payments on or in respect of
non-Cash proceeds of Asset Sales, and (C) dispositions of Investments by Foreign
Subsidiaries of the Company in Cash and instruments or securities or in
certificates of deposit (or comparable instruments) with banks or similar
institutions; (g) the lease of space in the ordinary course of business and in a
manner consistent with either past practices or the telecommunications industry
generally; (h) the issuance or sale by the Company of any Equity Interests in
the Company; or (i) the sale, lease, conveyance, disposition or other transfer
of assets to the Company or any Wholly Owned Subsidiary or Restricted Subsidiary
thereof.
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ASSET SALE NET PROCEEDS: The term "Asset Sale Net Proceeds" means, with
respect to any Asset Sale, the proceeds of such Asset Sale in the form of Cash
or Cash Equivalents actually received, including payments in respect of deferred
payment obligations when received in the form of Cash or Cash Equivalents
(except to the extent such obligations are financed or sold with recourse to the
Company or any Restricted Subsidiary of the Company), casualty loss insurance
proceeds, condemnation awards and proceeds from the conversion of other property
received when converted to Cash or Cash Equivalents, net of: (i) brokerage
commissions and other fees and expenses related to such Asset Sale, including
but not limited to legal fees and fees of outside accountants, (ii) provision
for all taxes as a result of such Asset Sale incurred by the Company or the
relevant Subsidiary, (iii) payments made to repay Indebtedness or any other
obligation outstanding at the time of such Asset Sale that either, (A) in the
case of a sale of all of the Equity Interests in any Restricted Subsidiary, is a
direct obligation of such Restricted Subsidiary or (B) is secured by the asset
subject to such sale or was incurred to finance the acquisition or construction
of, improvements on, or operations related to, the assets subject to such sale
and (iv) appropriate amounts to be provided by the Company or any Restricted
Subsidiary of the Company as a reserve against any liabilities associated with
such Asset Sale (such reserves, however, to be counted as Asset Sale Net
Proceeds once released from reserve), including, without limitation, pension and
other post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under indemnification obligations associated with such
Asset Sale, all as determined in conformity with GAAP.
ATTRIBUTABLE DEBT: The term "Attributable Debt" means, in respect of a
sale/leaseback transaction, as at the time of determination, the present value
(discounted at the interest rate borne by the Notes, compounded annually) of the
total obligations of the lessee for rental payments during the remaining term of
the lease included in such sale/leaseback transaction (including any period for
which such lease has been extended); PROVIDED, however, that if such
sale/leaseback transaction results in a Capital Lease Obligation, the amount of
Indebtedness represented thereby will be determined without duplication in
accordance with the definition of Capital Lease Obligation.
BOARD OF DIRECTORS: The term "Board of Directors" shall mean the Board
of Directors of the Company or a committee of such Board duly authorized to act
for it hereunder.
BOARD RESOLUTION: The term "Board Resolution" means a copy of a
resolution certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the Board of Directors, or duly authorized
committee thereof (to the extent permitted by applicable law), and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
BUSINESS DAY: The term "Business Day" means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which the banking
institutions in The City of
New York or the city in which the Corporate Trust
Office is located are authorized or obligated by law or executive order to close
or be closed.
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CAPITAL STOCK: The term "Capital Stock" means:
(1) with respect to any Person that is a corporation, any and
all shares, interests, participations or other equivalents) however
designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person, and all
options, warrants or other rights to purchase or acquire any of the
foregoing; and
(2) with respect to any Person that is not a corporation, any
and all partnership, membership or other equity interests of such
Person, and all options, warrants or other rights to purchase or
acquire any of the foregoing.
CAPITALIZED LEASE OBLIGATION: The term "Capitalized Lease Obligation"
means any obligation of a Person to pay rent or other amounts under a lease of
property, real or personal, that is required to be capitalized for financial
reporting purposes in accordance with GAAP; and the amount of such obligation
shall be the capitalized amount thereof determined in accordance with GAAP.
CASH: The term "Cash" means money or currency or a credit balance in a
Deposit Account.
CASH EQUIVALENTS: The term "Cash Equivalents" means (a) securities
issued or directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (PROVIDED, that the full faith
and credit of the United States is pledged in support thereof) having maturities
not more than twelve months from the date of acquisition, (b) U.S. dollar
denominated time deposits, certificates of deposit, Eurodollar time deposits or
Eurodollar certificates of deposit of (i) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or (ii)
any bank whose short-term commercial paper rating from S&P is at least A-1 or
the equivalent thereof or from Xxxxx'x is at least P-1 or the equivalent thereof
(any such bank being an "Approved Lender"), in each case with maturities of not
more than twelve months from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Lender (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-2 (or the equivalent thereof) or better by S&P or
P-2 (or the equivalent thereof) or better by Moody's and maturing within twelve
months of the date of acquisition, (d) repurchase agreements with a bank or
trust company or recognized securities dealer having capital and surplus in
excess of $500,000,000 for direct obligations issued by or fully guaranteed by
the United States of America in which the Company shall have a perfected first
priority security interest (subject to no other Liens) and having, on the date
of purchase thereof, a fair market value of at least 100% of the amount of
repurchase obligations, and (e) interests in money market mutual funds which
invest solely in assets or securities of the type described in subparagraphs
(a), (b), (c) or (d) hereof.
CHANGE IN CONTROL: The term "Change in Control" shall have the meaning
specified in Section 16.3 hereof.
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CLOSE OF BUSINESS: The term "close of business" means 5 p.m. (
New York
City time).
CLOSING PRICE: The term "Closing Price" shall have the meaning
specified in Section 15.5(h) hereof.
COLLATERAL: The term "Collateral" means the collective reference to all
assets, whether now owned or hereafter acquired, upon which a Lien is created or
granted from time to time pursuant to any Security Document.
COLLATERAL AGENCY AGREEMENT: The term "Collateral Agency Agreement"
means that certain Collateral Agency Agreement by and among the Company, the
Subsidiary Guarantors, the Holders of the Notes and the Collateral Agent.
COLLATERAL AGENT: The term "Collateral Agent" means The Bank of
New
York, in its capacity as collateral agent under the Security Documents, until a
successor collateral agent shall have become such pursuant to the Security
Documents, and thereafter "Collateral Agent" shall mean such successor
collateral agent.
COMMISSION: The term "Commission" shall mean the Securities and
Exchange Commission.
COMMON STOCK: The term "Common Stock" shall mean any stock of any class
of the Company which has no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which is not subject to redemption by the Company.
Subject to the provisions of Section 15.6 hereof, however, shares issuable on
conversion of Notes shall include only shares of the class designated as common
stock of the Company at the date of this Indenture or shares of any class or
classes resulting from any reclassification or reclassifications thereof and
which have no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company and which are not subject to redemption by the Company; PROVIDED,
that if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
COMPANY: The term "Company" shall mean iBasis, Inc., a Delaware
corporation, and subject to the provisions of Article 12 hereof, shall include
its successors and assigns.
COMPANY NOTICE: The term "Company Notice" shall have the meaning
specified in Section 16.2 hereof.
COMPANY SECURITY AGREEMENTS: The term "Company Security Agreements"
means, collectively, that certain (a) Security Agreement, dated as of the date
hereof, by and between the Company and the Collateral Agent, and (b) IP Security
Agreement, dated as of the date hereof, by and between the Company and the
Collateral Agent.
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CONSOLIDATED EBITDA: The term "Consolidated EBITDA" means, with respect
to the Company and its Subsidiaries for any period, subject to Section 5.14(d)
hereof, the sum of, without duplication, (i) the Consolidated Net Income for
such period, plus (ii) the Fixed Charges for such period, plus (iii) provision
for taxes based on income or profits for such period (to the extent such taxes
were included in computing Consolidated Net Income for such period), plus (iv)
consolidated depreciation, amortization and other non-Cash charges of the
Company and its Subsidiaries required to be reflected as expenses on the books
and records of the Company (to the extent such expenses were included in
computing Consolidated Net Income for such period), minus (v) Cash payments with
respect to any non-recurring, non-Cash charges previously added back pursuant to
clause (iv), and (vi) excluding the impact of foreign currency translations.
Notwithstanding the foregoing, the Fixed Charges of, the provision for taxes
based on the income or profits of, and the depreciation and amortization and
other non-Cash charges of, a Subsidiary of a Person shall be added to
Consolidated Net Income to compute Consolidated EBITDA only to the extent (and
in the same proportion) that the Net Income of such Subsidiary was included in
calculating the Consolidated Net Income of such Person.
CONSOLIDATED NET INCOME: The term "Consolidated Net Income" means, with
respect to any Person for any period, the aggregate of the Net Income of such
Person and its Subsidiaries for such period, on a consolidated basis, determined
in accordance with GAAP; PROVIDED, that (i) the Net Income (but not loss) of any
Person that is not a Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in Cash to the referent Person or a Wholly Owned Subsidiary
thereof that is a Restricted Subsidiary, (ii) the Net Income of any Subsidiary
shall be excluded to the extent that the declaration or payment of dividends or
similar distributions by that Subsidiary of that Net Income is not at the date
of determination permitted without any prior governmental approval (which has
not been obtained) or, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary or its stockholders, (iii)
the cumulative effect of a change in accounting principles shall be excluded,
and (iv) all other extraordinary gains and extraordinary losses shall be
excluded.
CONSOLIDATED NET TANGIBLE ASSETS: The term "Consolidated Net Tangible
Assets" means, as of the date of determination, Consolidated Total Assets after
deducting therefrom, to the extent included therein (with respect to clauses (i)
and (ii), in each case determined on a consolidated basis in accordance with
GAAP (without duplication)): (i) unamortized debt discount and expenses; and
(ii) goodwill, patents, trademarks, service marks, trade names, copyrights and
other items properly classified as intangible assets in accordance with GAAP;
and (iii) all liabilities properly classified as current liabilities in
accordance with GAAP (except liabilities that, by their terms, are extendible or
renewable at the option of the obligor to a date that is 12 months or more after
the date on which such current liabilities are determined).
CONSOLIDATED TOTAL ASSETS: The term "Consolidated Total Assets" means,
as of any date, the total assets of the Company and its Restricted Subsidiaries
that would be shown as
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assets on a consolidated balance sheet of the Company and its Restricted
Subsidiaries as of such date prepared in accordance with GAAP.
CONSOLIDATED NET WORTH: The term "Consolidated Net Worth" of any Person
means the consolidated stockholders' equity of such Person, determined on a
consolidated basis in accordance with GAAP, less (without duplication) amounts
attributable to Disqualified Stock of such Person.
CONVERSION PRICE: The term "Conversion Price" shall have the meaning
specified in Section 15.4 hereof.
CORPORATE TRUST OFFICE: The term "Corporate Trust Office," or other
similar term, shall mean the office of the Trustee at which at any particular
time its corporate trust business shall be principally administered, which
office is, at the date as of which this Indenture is dated, located at 000
Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Administration.
COVENANT DEFEASANCE OPTION: The term "Covenant Defeasance Option" shall
have the meaning specified in Section 13.1(b) hereof.
CREDIT AGREEMENT: The term "Credit Agreement" means that certain Loan
and Security Agreement, dated as of December 29, 2003, among the Company, iBasis
Global, Inc., a Delaware corporation, and Silicon Valley Bank together with the
related documents thereto (including, without limitation, any notes, guarantee
agreements and security documents), in each case as such agreements may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including
increasing the amount of available borrowings thereunder or adding Subsidiaries
of the Company as additional borrowers or guarantors thereunder) all or any
portion of the Indebtedness under such agreement or any successor or replacement
agreement and whether by the same or any other agent, lender or group of
lenders.
CURRENCY HEDGE OBLIGATIONS: The term "Currency Hedge Obligations"
means, at any time as to any Person, the obligations of such Person at such time
that were incurred pursuant to any foreign currency exchange agreement, option
or futures contract or other similar agreement or arrangement designed to
protect against or manage such Person's or any of its Subsidiaries' exposure to
fluctuations in foreign currency exchange rates.
CURRENT MARKET PRICE: The term "Current Market Price" shall have the
meaning specified in Section 15.5(h) hereof.
CUSTODIAN: The term "Custodian" means the custodian with respect to
respect to the Notes in global form (as appointed by DTC), or any successor
person thereto and shall initially be the Trustee.
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DEFAULT: The term "default" shall mean any event that is, or after
notice or passage of time, or both, would be, an Event of Default.
DEFAULT RATE: The term "Default Rate" shall have the meaning specified
in Section 5.1 hereof.
DEFAULTED INTEREST: The term "Defaulted Interest" shall have the
meaning specified in Section 2.3 hereof.
DEPOSIT ACCOUNT: The term "Deposit Account" means a demand, savings,
passbook, money market or like account with or sponsored by a commercial bank,
financial institution, investment bank or brokerage firm, savings and loan
association or like organization or a government securities dealer, other than
an account evidenced by a negotiable certificate of deposit.
DEPOSITARY: The term "Depositary" means, with respect to the Notes
issuable or issued in whole or in part in global form, the person specified in
Section 2.5(c) hereof as the Depositary with respect to such Notes, until a
successor shall have been appointed and become such pursuant to the applicable
provisions of this Indenture, and thereafter, "Depositary" shall mean or include
such successor.
DISQUALIFIED STOCK: The term "Disqualified Stock" means any Capital
Stock that, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the holder thereof, in
whole or in part, on or prior to the date that is 121 days after the date on
which the Notes mature. Notwithstanding the preceding sentence, any Capital
Stock that would constitute Disqualified Stock solely because the holders of the
Capital Stock have the right to require the Company to repurchase such Capital
Stock upon the occurrence of a change in control or an asset sale will not
constitute Disqualified Stock if the terms of such Capital Stock provide that
the Company may not repurchase or redeem any such Capital Stock pursuant to such
provisions unless such repurchase or redemption complies with Section 5.12
hereof.
DOMESTIC SUBSIDIARY. The term "Domestic Subsidiary" means a Restricted
Subsidiary of the Company incorporated or organized under the laws of the United
States of America, any State thereof or the District of Columbia or that
guarantees or provides direct credit support for any Indebtedness of the
Company.
EQUITY INTERESTS: The term "Equity Interests" means Capital Stock and
all warrants, options or other rights to acquire Capital Stock (but excluding
any debt security that is convertible into, or exchangeable for, Capital Stock).
EVENT OF DEFAULT: The term "Event of Default" shall mean any event
specified in Section 7.1 hereof, continued for the period of time, if any, and
after the giving of notice, if any, therein designated.
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EX DATE: The term "'ex' date" shall have the meaning specified in
Section 15.5(h)(2) hereof.
EXCESS PROCEEDS: The term "Excess Proceeds" shall have the meaning
specified in Section 5.17(b) hereof.
EXCESS PROCEEDS OFFER: The term "Excess Proceeds Offer" shall have the
meaning specified in Section 5.17(b) hereof.
EXCESS PROCEEDS OFFER PAYMENT DATE: The term "Excess Proceeds Offer
Payment Date" shall have the meaning specified in Section 5.17(c) hereof.
EXCESS PROCEEDS PURCHASE PRICE: The term "Excess Proceeds Purchase
Price" shall have the meaning specified in Section 5.17(b) hereof.
EXCHANGE ACT: The term "Exchange Act" means the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder.
EXISTING INDEBTEDNESS: The term "Existing Indebtedness" means the
Indebtedness of the Company and its Subsidiaries in existence on the Issue Date,
as listed on SCHEDULE 1.1 attached hereto, until such amounts are repaid.
EXPIRATION TIME: The term "Expiration Time" shall have the meaning
specified in Section 15.5(f) hereof.
FIXED CHARGES: The term "Fixed Charges" means, with respect to any
Person for any period, the sum, without duplication, of (i) the consolidated
interest expense of such Person and its Subsidiaries for such period, whether
paid or accrued (including, without limitation, amortization of original issue
discount, non-Cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capitalized Lease Obligations, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance financings, and
net payments (if any) pursuant to Currency Hedge Obligations), and (ii) the
consolidated interest expense of such Person and its Subsidiaries that was
capitalized during such period, and (iii) any interest expense on Indebtedness
of another Person that is guaranteed by such Person or one of its Subsidiaries
or secured by a Lien on assets of such Person or one of its Subsidiaries
(whether or not such guarantee or Lien is called upon), and (iv) the product of
(a) all Cash dividend payments (and non-Cash dividend payments in the case of a
Person that is a Subsidiary) on any series of preferred stock of such Person
payable to a party other than the Company or a Wholly Owned Subsidiary, times
(b) a fraction, the numerator of which is one and the denominator of which is
one minus the then current combined federal, state and local statutory tax rate
of such Person, expressed as a decimal, on a consolidated basis and in
accordance with GAAP.
FIXED CHARGE COVERAGE RATIO: The term "Fixed Charge Coverage Ratio"
means, with respect to any Person for any period, the ratio of the Consolidated
EBITDA of such Person and its Subsidiaries for such period to the Fixed Charges
of such Person and its
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Subsidiaries for such period. In the event that the Company or any of its
Subsidiaries incurs, assumes, guarantees or redeems any Indebtedness or issues
or redeems preferred stock or Disqualified Stock subsequent to the commencement
of the four-quarter reference period for which the Fixed Charge Coverage Ratio
is being calculated but prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"),
then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
to such incurrence, assumption, guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock or Disqualified Stock, as if the same
had occurred at the beginning of the applicable four-quarter reference period.
For purposes of making the computation referred to above, (i) acquisitions that
have been made by the Company or any of its Subsidiaries, including through
mergers or consolidations and including any related financing transactions,
during the four-quarter reference period or subsequent to such reference period
and on or prior to the Calculation Date shall be deemed to have occurred on the
first day of the four-quarter reference period, and (ii) the Consolidated EBITDA
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the Calculation Date, shall be
excluded, and (iii) the Fixed Charges attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, but only to the extent that
the obligations giving rise to such Fixed Charges shall not be obligations of
the subject Person or any of its Subsidiaries following the Calculation Date.
FOREIGN SUBSIDIARY. The term "Foreign Subsidiary" means a Restricted
Subsidiary of the Company that is not a Domestic Subsidiary.
GAAP: The term "GAAP" means generally accepted accounting principles in
the United States as in effect on the Issue Date.
GLOBAL NOTE: The term "Global Note" shall have the meaning specified in
Section 2.5(b) hereof.
GUARANTEED INDEBTEDNESS: The term "Guaranteed Indebtedness" shall have
the meaning specified in Section 5.19 hereof.
INDEBTEDNESS: The term "Indebtedness" of any Person means, without
duplication at the date of determination thereof:
(i) the principal of and premium (if any) and interest on
indebtedness of such Person for borrowed money (including in respect of
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments) or for the deferred purchase price of
property or services (other than (a) trade payables on terms of 180
days or less incurred in the ordinary course of business and (b)
deferred earn-out and other performance-based payment obligations
incurred in connection with acquisitions of Telecommunication
Businesses), all as determined in accordance with GAAP;
(ii) all Capitalized Lease Obligations and Attributable Debt
of such Person;
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(iii) all Subsidiary Guarantees of such Person in respect of
Indebtedness of others;
(iv) the aggregate amount of all unreimbursed drawings in
respect of letters of credit or other similar instruments issued for
the account of such Person (less the amount of Cash, Cash Equivalents
or Investment Grade Securities on deposit securing reimbursement
obligations in respect of such letters of credit or similar
instruments) to the extent that same remains unreimbursed for more than
four Business Days;
(v) all Indebtedness, obligations or other liabilities
otherwise nonrecourse to such Person of such Person or of others for
borrowed money secured by a Lien on any property of such Person,
whether or not such indebtedness, obligations or liabilities are
assumed by such Person, the amount of such Indebtedness being deemed to
be the lesser of the fair market value of such property or the amount
so secured;
(vi) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified
Stock and, with respect to any Subsidiary of the Company, any preferred
stock (but excluding, in each case, any accrued dividends); and
(vii) to the extent not otherwise included in this definition
actual (rather than notional) liabilities under Currency Hedge
Obligations of such Person;
PROVIDED, HOWEVER, that (i) capital stock (other than Disqualified Stock) shall
not constitute Indebtedness and (ii) all or any portion of Indebtedness that
becomes the subject of a defeasance (whether a "legal" defeasance or a
"covenant" or "in substance" defeasance) shall, at all times that such
defeasance remains in effect, cease to be treated as Indebtedness for purposes
of this Indenture.
INDENTURE: The term "Indenture" shall mean this instrument as
originally executed or, if amended or supplemented as herein provided, as so
amended or supplemented.
INTERCREDITOR AGREEMENT: The term "Intercreditor Agreement" shall mean
that certain Intercreditor Agreement by and among the Company, the Subsidiary
Guarantors, the Holders of the Notes, the Trustee, the Collateral Agent and the
holders of the Senior Indebtedness.
INVESTMENTS: The term "Investments" means, with respect to any Person,
all investments by such Person in other Persons (including Affiliates) in the
forms of direct or indirect loans (including guarantees of Indebtedness or other
obligations), advances or capital contributions (excluding commission, travel
and similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities and all other items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP;
PROVIDED, that an acquisition of assets, Equity Interests or other securities by
the Company for
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consideration consisting of common equity securities of the Company or any
direct or indirect parent of the Company shall not be deemed to be an
Investment.
INVESTMENT GRADE SECURITIES. The term "Investment Grade Securities"
means: (i) securities issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality thereof (other than
Cash Equivalents), (ii) debt securities or debt instruments with a rating of
BBB- or higher by S&P, Baa3 or higher by Moody's or the equivalent of such
rating by such rating organization, or, if no rating of S&P or Moody's then
exists, the equivalent of such rating by any other nationally recognized
securities rating agency, but excluding any debt securities or instruments
constituting loans or advances among the Company and its Subsidiaries, and (iii)
investments in any fund that invests exclusively in investments of the type
described in clauses (i) and (ii) which fund may also hold immaterial amounts of
Cash or Cash Equivalents pending investment and/or distribution.
ISSUE DATE: The term "Issue Date" means the date on which the Notes are
first issued under this Indenture.
LEGAL DEFEASANCE OPTION: The term "Legal Defeasance Option" shall have
the meaning specified in Section 13.1(b) hereof.
LIEN: The term "Lien" means, with respect to any property or asset, any
mortgage, lien, pledge, charge, security interest or encumbrance of any kind in
respect of such property or asset, whether or not filed, recorded or otherwise
perfected under applicable law, but excluding agreements to refrain from
granting Liens. For the purposes of this Indenture, a Person shall be deemed to
own subject to a Lien any property or asset that it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, Capitalized Lease Obligation or other title retention agreement
relating to such asset; PROVIDED, HOWEVER, that "Lien" shall not include a trust
or similar arrangement established for the purpose of defeasing any Indebtedness
pursuant to the terms of the instrument evidencing or providing for the issuance
of such Indebtedness.
NET INCOME: The term "Net Income" means, with respect to any Person,
the net income (loss) of such Person, determined in accordance with GAAP and
before any reduction in respect of preferred stock dividends, excluding,
however, (i) any gain (or loss), together with any related provision for taxes
on such gain (or loss), realized in connection with (a) any Asset Sale
(including, without limitation, dispositions pursuant to sale and leaseback
transactions) or (b) the disposition of any securities by such Person or any of
its Subsidiaries or the extinguishment of any Indebtedness of such Person or any
of its Subsidiaries and (ii) any extraordinary or nonrecurring gain (or loss),
together with any related provision for taxes on such extraordinary or
nonrecurring gain (or loss).
NOTE OR NOTES: The terms "Note" or "Notes" shall mean any Note or
Notes, as the case may be, authenticated and delivered under this Indenture.
NOTEHOLDER, HOLDER OR HOLDER: The terms "Noteholder," "Holder" or
"holder" as applied to any Note, or other similar terms (but excluding the term
"beneficial
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holder"), shall mean any person in whose name at the time a particular Note is
registered on the Note Register.
NOTE REGISTER: The term "Note Register" shall have the meaning
specified in Section 2.5(a) hereof.
NOTE REGISTRAR: The term "Note Registrar" shall have the meaning
specified in Section 2.5(a) hereof.
NOTICE DATE: The term "Notice Date" shall have the meaning specified in
Section 3.1(b) hereof.
NOTICE OF DEFAULT: The term "Notice of Default" shall have the meaning
specified in Section 7.8 hereof.
OFFER AMOUNT: The term "Offer Amount" shall have the meaning specified
in Section 5.17(b) hereof.
OFFICERS' CERTIFICATE: The term "Officers' Certificate", when used with
respect to the Company, shall mean a certificate signed by (a) one of the
President, the Chief Executive Officer, Executive Vice President or any Vice
President (whether or not designated by a word or words added after the title
"Vice President") and (b) by one of the Treasurer or any Assistant Treasurer,
Secretary or any Assistant Secretary or Controller of the Company, which is
delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 19.5 hereof if and to the extent required by the
provisions of such Section.
OPINION OF COUNSEL: The term "Opinion of Counsel" shall mean an opinion
in writing signed by legal counsel, who may be an employee of or counsel to the
Company, or other counsel acceptable to the Trustee, which is delivered to the
Trustee. Each such opinion shall include the statements provided for in Section
19.2 hereof if and to the extent required by the provisions of such Section.
OUTSTANDING: The term "outstanding," when used with reference to Notes,
shall, subject to the provisions of Section 9.4 hereof, mean, as of any
particular time, all Notes authenticated and delivered by the Trustee under this
Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Notes, or portions thereof, for the payment, or redemption
of which monies in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the
Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own paying agent); PROVIDED,
that if such Notes are to be redeemed, as the case may be, prior to the
maturity thereof, notice of such redemption shall have been given as
provided in Section 3.2 hereof, or provision satisfactory to the
Trustee shall have been made for giving such notice;
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(c) Notes in lieu of which, or in substitution for which,
other Notes shall have been authenticated and delivered pursuant to the
terms of Section 2.6 hereof unless proof satisfactory to the Trustee is
presented that any such Notes are held by bona fide holders in due
course; and
(d) Notes converted into Common Stock pursuant to Article 15
hereof and Notes deemed not outstanding pursuant to Section 3.2 hereof.
PARI PASSU INDEBTEDNESS: The term "PARI PASSU Indebtedness" means
Indebtedness that is intended to be PARI PASSU with the Notes.
PERSON OR PERSON: The term "person" or "Person" shall mean an
individual, a corporation, a limited liability company, an association, a
partnership, an individual, a joint venture, a joint stock company, a trust, an
unincorporated organization or a government or an agency or a political
subdivision thereof.
PERMITTED EMPLOYEE REPURCHASE: The term "Permitted Employee Repurchase"
means the repurchase of Capital Stock of the Company from employees of the
Company or its Subsidiaries in connection with the termination of such
employees' employment with the Company in an amount not to exceed $250,000 per
annum.
PERMITTED INDEBTEDNESS: The term "Permitted Indebtedness" shall mean:
(i) Any Indebtedness under the Notes and the Subsidiary
Guarantees;
(ii) An aggregate principal amount not to exceed $38,180,000
of the Company's (A) 6 3/4% Convertible Subordinated Notes due 2009 and
(B) 5 3/4% Convertible Subordinated Notes due 2005, if any;
(iii) PARI PASSU Indebtedness, not to exceed $20,000,000 in
principal amount outstanding at any time;
(iv) Existing Indebtedness not otherwise covered by any other
clause of this definition;
(v) Indebtedness of the Company to any Restricted Subsidiary
and Indebtedness of any Restricted Subsidiary to the Company or another
Subsidiary;
(vi) Indebtedness secured by Company assets that is incurred
by the Company or a Restricted Subsidiary from any bank, commercial
finance company, other commercial lender or financial institution, in
an amount not to exceed in the aggregate the greater of (x)
$15,000,000, or (y) an amount equal to the sum of (i) eighty-five
percent (85%) of the face amount of the Company's and its Subsidiaries'
accounts receivable aged less than ninety (90) days, and (ii) forty
percent (40%) of the net book value of the Company's and its
Subsidiaries' property, plant and equipment;
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(vii) Refinancing Indebtedness;
(viii) Acquired Indebtedness, in an amount not to exceed
$25,000,000 in the aggregate;
(ix) Subordinate Indebtedness, in an aggregate principal
amount not to exceed $114,540,000, PROVIDED, that the express
subordination provisions contained therein or otherwise pertaining
thereto provide that (a) the obligor thereunder shall not be permitted
to make any payments of principal in Cash, or otherwise retire, redeem
or repurchase such Subordinate Indebtedness for Cash so long as any
Indebtedness under the Notes remains outstanding, provided so long as
no Event of Default has occurred and is continuing hereunder such
obligor shall be permitted to make regularly scheduled payment of
interest on such Subordinated Indebtedness in Cash as and when the same
shall become payable, and (b) the holders of such Subordinate
Indebtedness agree that during the occurrence and continuation of an
Event of Default hereunder, such holders will not take any action to
enforce their rights and remedies under such Subordinate Indebtedness
(other than such actions which may be necessary to toll any statute of
limitations or any filing of a proof of claim in any bankruptcy or
insolvency proceeding);
(x) Indebtedness arising from bid, performance, appeal or
surety bonds or similar bonds or instruments securing any obligations
of the Company or any Restricted Subsidiary incurred in the ordinary
course of business, which Subsidiaries' Guarantees, letters of credit,
bonds or similar instruments do not secure other Indebtedness;
(xi) Disqualified Stock issued in compliance with Section 5.13
hereof;
(xii) Indebtedness (including Capitalized Lease Obligations)
incurred by the Company or any of its Restricted Subsidiaries to
finance the purchase, lease or improvement of property (real or
personal) (whether through the direct purchase, lease or improvement of
assets or purchase of the Equity Interests of any Person owning such
assets); PROVIDED, that the aggregate principal amount of Indebtedness
outstanding under this clause does not exceed the lesser of (x) 10% of
Consolidated Total Assets of the Company at the time of any incurrence
thereof (including any Refinancing Indebtedness with respect thereto)
or (y) $10,000,000;
(xiii) Indebtedness under Currency Hedge Obligations entered
into for bona fide hedging purposes of the Company or any of its
Restricted Subsidiaries and not for speculative purposes; PROVIDED,
HOWEVER, that such Currency Hedge Obligations do not increase the
Indebtedness of the Company or any of its Restricted Subsidiaries
outstanding at any time other than as a result of fluctuations in
foreign currency exchange rates or interest rates, as applicable, or by
reason of fees, indemnities and compensation payable thereunder;
(xiv) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business;
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PROVIDED, HOWEVER, that such Indebtedness is extinguished within four
(4) Business Days of incurrence; and
(xv) Indebtedness of the Company or any Restricted Subsidiary
consisting of guarantees, indemnities or obligations in respect of
purchase price adjustments in connection with the acquisition or
disposition of assets.
For purposes of determining compliance with the covenant set forth in
Section 5.10 hereof, in the event that an item of proposed Indebtedness meets
the criteria of more than one of the categories of Permitted Indebtedness
described in clauses (i) through (xv) above, the Company will be permitted to
classify such item of Indebtedness on the date of the incurrence of such
Indebtedness in any manner that complies with such covenant.
PERMITTED INVESTMENTS: The term "Permitted Investments" means (a) any
Investments in the Company or in a Wholly Owned Subsidiary of the Company that
is a Restricted Subsidiary; (b) any Investments in Cash and Cash Equivalents;
(c) Investments by the Company or any Subsidiary of the Company in a Person if
as a result of such Investment (i) such Person becomes a Wholly Owned Subsidiary
of the Company that is a Restricted Subsidiary and that is engaged in a
Telecommunication Business, or (ii) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Wholly Owned Subsidiary of
the Company that is a Restricted Subsidiary and that is engaged in a
Telecommunication Business; (d) Investments outstanding as of the Issue Date;
and (e)(i) other Investments that do not exceed $3,000,000 in the aggregate at
any time outstanding, and (ii) if the amount specified in clause (e)(i) above
has been fully utilized, other Investments (in addition to those permitted by
clause (e)(i) above) that (A) are each individually approved by the Board of
Directors as evidenced by a Board Resolution delivered to the Trustee
contemporaneously with such Investment, and (B) in the aggregate do not exceed
$3,000,000 at any time outstanding.
PREDECESSOR NOTE: The term "Predecessor Note" of any particular Note
shall mean every previous Note evidencing all or a portion of the same debt as
that evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 2.6 hereof in
lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the lost, destroyed or stolen Note that it replaces.
PROVISIONAL REDEMPTION: The term "Provisional Redemption" shall have
the meaning specified in Section 3.1(b) hereof.
PROVISIONAL REDEMPTION DATE: The term "Provisional Redemption Date"
shall have the meaning specified in Section 3.1(b) hereof.
PURCHASE MONEY LIEN: The term "Purchase Money Lien" means a Lien
granted on an asset or property to secure a Purchase Money Obligation permitted
to be incurred under this Indenture and incurred solely to finance the purchase,
or the cost of construction or improvement, of such asset or property; PROVIDED,
HOWEVER, that such Lien encumbers only such asset or property and is granted
within 180 days of such acquisition.
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PURCHASE MONEY OBLIGATIONS: The term "Purchase Money Obligations" of
any Person means any obligations of such Person to any seller or any other
Person incurred or assumed to finance the purchase, or the cost of construction
or improvement, of real or personal property to be used in the business of such
Person or any of its Subsidiaries in an amount that is not more than 100% of the
cost, or fair market value, as appropriate, of such property, and incurred
within 180 days after the date of such acquisition (excluding accounts payable
to trade creditors incurred in the ordinary course of business).
PURCHASED SHARES: The term "Purchased Shares" shall have the meaning
specified in Section 15.5(f) hereof.
QUALIFIED REPURCHASE PLAN REPURCHASE. The term "Qualified Repurchase
Plan Repurchase" means a repurchase of Capital Stock of the Company in an
open-market transaction pursuant to a stock repurchase plan approved by the
Board of Directors, PROVIDED, that the aggregate amount of purchases pursuant to
such repurchase plan and any other stock repurchase plan does not exceed, in any
fiscal year, the sum of ten percent (10%) of the Cash and Cash Equivalents of
the Company as of the beginning of such fiscal year, plus ten percent (10%) of
the Consolidated Net Income of the Company for such fiscal year and PROVIDED,
FURTHER, that after giving effect to such repurchase the Company shall have at
least $25,000,000 in Cash and Cash Equivalents.
RECORD DATE: The term "Record Date" shall have the meaning specified in
Section 15.5(h) hereof.
REFERENCE PERIOD: The term "Reference Period" shall have the meaning
specified in Section 15.5(d) hereof.
REFINANCING INDEBTEDNESS: The term "Refinancing Indebtedness" means any
Indebtedness of the Company or any of its Subsidiaries incurred or issued in
exchange for, or the net proceeds of which are used to extend, refinance, renew,
replace, defease or refund other Indebtedness of the Company or any of its
Subsidiaries (other than intercompany Indebtedness); PROVIDED, that:
(1) the principal amount (or accreted value, if applicable) of
such Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness extended,
refinanced, renewed, replaced, defeased (whether legally or as to
covenants only) or refunded (plus all accrued interest on such
Indebtedness and the amount of all fees, expenses and premiums incurred
in connection therewith);
(2) such Refinancing Indebtedness has a final maturity date on
or later than the final maturity date of, and has a Weighted Average
Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to
the Notes, such Refinancing
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Indebtedness is subordinated in right of payment to, the Notes on terms
at least as favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded; and
(4) such Indebtedness is incurred either by the Company or by
the Subsidiary of the Company which is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.
REGISTRATION RIGHTS AGREEMENT: The term "Registration Rights Agreement"
means that certain Registration Rights Agreement, dated as of even date
herewith, by and among the Company and the Noteholders named therein.
REPURCHASE DATE: The term "Repurchase Date" shall have the meaning
specified in Section 16.1(a) hereof.
REPURCHASE EVENT: The term "Repurchase Event" shall have the meaning
specified in Section 16.3 hereof.
REPURCHASE PRICE: The term "Repurchase Price" shall have the meaning
specified in Section 16.1 hereof.
RESPONSIBLE OFFICER: The term "Responsible Officer" shall mean, when
used with respect to the Trustee, any officer within the corporate trust
department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
RESTRICTED PAYMENTS: The term "Restricted Payments" shall have the
meaning specified in Section 5.12 hereof.
RESTRICTED SUBSIDIARY: The term "Restricted Subsidiary" means any
Subsidiary of the Company, whether existing on or after the Issue Date, other
than an Unrestricted Subsidiary.
SECURITIES: The term "Securities" shall have the meaning specified in
Section 15.5(d) hereof.
SECURITIES ACT: The term "Securities Act" means the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder.
SECURITY AGREEMENTS: The term "Security Agreements" means,
collectively, the Company Security Agreements and the Subsidiary Security
Agreements.
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SECURITY DOCUMENTS: The term "Security Documents" means the Security
Agreements and/or any other documents creating a Lien that secures the Notes.
SENIOR INDEBTEDNESS: The term "Senior Indebtedness" means Indebtedness
of the Company or any Subsidiary incurred at any time pursuant to the Credit
Agreement.
SIGNIFICANT SUBSIDIARY: The term "Significant Subsidiary" means, with
respect to any person, a Subsidiary of such person that would constitute a
"significant subsidiary" as such term is defined under Rule 1-02 of Regulation
S-X of the Commission.
SUBORDINATE INDEBTEDNESS: The term "Subordinate Indebtedness" means any
Indebtedness of the Company (whether outstanding on the Issue Date or thereafter
incurred, assumed or Subsidiary Guaranteed) that by its terms is subordinate or
junior in right of payment to the Notes pursuant to a written agreement.
SUBSIDIARY: The term "Subsidiary" means a corporation more than 50% of
the outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
SUBSIDIARY GUARANTEE. The term "Subsidiary Guarantee" means any
obligation, contingent or otherwise, of any Person directly or indirectly
guaranteeing any Indebtedness of any other Person and any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness of
such other Person (whether arising by virtue of partnership arrangements, or by
arrangements to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or (ii)
entered into for purposes of assuring in any other manner the obligee of such
Indebtedness of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); PROVIDED, HOWEVER, that the term
"Subsidiary Guarantee" shall not include endorsements for collection or deposit
in the ordinary course of business. The term "Subsidiary Guarantee" used as a
verb has a corresponding meaning.
SUBSIDIARY GUARANTOR. The term "Subsidiary Guarantor" means each
Subsidiary that executes and delivers a Subsidiary Guarantee in accordance with
the provisions of this Indenture and their successors and assigns; PROVIDED,
that, upon the release of such Subsidiary Guarantee pursuant to this Indenture,
such Person shall cease to be a Subsidiary Guarantor.
SUBSIDIARY SECURITY AGREEMENTS: The term "Subsidiary Security
Agreements" means, collectively, that certain (a) Security Agreement, dated as
of the date hereof, by and among the Subsidiary Guarantors and the Collateral
Agent, and (b) IP Security Agreement, dated as of the date hereof, by and among
the Subsidiary Guarantors and the Collateral Agent.
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TELECOMMUNICATION BUSINESS: The term "Telecommunication Business" means
a business, the majority of whose revenues are derived from the development,
manufacture, marketing, providing or arranging to provide, selling,
administering, managing or monitoring communications and communications-related
services and products, any business or activity that is reasonably similar
thereto or a reasonable extension, development or expansion thereof or ancillary
thereto, or any other business in which the Company or any of its Subsidiaries
is engaged on the Issue Date.
TERMINATION OF TRADING: The term "Termination of Trading" shall have
the meaning specified in Section 16.3(f) hereof.
TRADING DAY: The term "Trading Day" shall have the meaning specified in
Section 15.5(h)(5) hereof.
TRIGGER EVENT: The term "Trigger Event" shall have the meaning
specified in Section 15.5(b) hereof.
TRUST INDENTURE ACT: The term "Trust Indenture Act" shall mean the
Trust Indenture Act of 1939, as amended, as it was in force at the date of
execution of this Indenture, except as provided in Sections 11.3 and 15.6
hereof; PROVIDED, HOWEVER, that in the event the Trust Indenture Act of 1939 is
amended after the date hereof, the term "Trust Indenture Act" shall mean, to the
extent required by such amendment, the Trust Indenture Act of 1939 as so
amended.
TRUSTEE: The term "Trustee" shall mean The Bank of
New York, and its
successors and any corporation resulting from or surviving any consolidation or
merger to which it or its successors may be a party and any successor trustee at
the time serving as successor trustee hereunder.
UNRESTRICTED SUBSIDIARY: The term "Unrestricted Subsidiary" means (i)
any Subsidiary acquired or organized after the Issue Date that is designated as
an Unrestricted Subsidiary for purposes of this Indenture by a resolution of the
Board of Directors of the Company in accordance with the requirements of this
paragraph, and (ii) any Subsidiary of an Unrestricted Subsidiary, in each case
until such time as such Subsidiary is designated as a Restricted Subsidiary for
purposes of this Indenture by a resolution of the Board of Directors of the
Company in accordance with the requirements of this paragraph. The Company may
designate any Subsidiary that satisfies the requirements of this paragraph to be
an Unrestricted Subsidiary by a resolution of the Board of Directors of the
Company if after giving effect to such designation (a) such Subsidiary does not
own or hold any Capital Stock of, or any Lien on any property of, the Company or
any Restricted Subsidiary and (b) such Subsidiary is not liable, directly or
indirectly, with respect to any Indebtedness. The Company may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary by a resolution of the
Board of Directors of the Company if immediately after giving effect to such
designation, no Default or Event of Default has occurred and is continuing. The
Company shall evidence any such designation to the Trustee by promptly filing
with the Trustee a copy of the resolution of the Board of Directors
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giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing provisions.
U.S. GOVERNMENT OBLIGATIONS: The term "U.S. Government Obligations"
means direct obligations (or certificates representing an ownership interest in
such obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of
the United States of America is pledged and which are not callable or redeemable
at the issuer's option.
VOTING STOCK: The term "Voting Stock" shall have the meaning specified
in Section 16.3(e) hereof.
WEIGHTED AVERAGE LIFE TO MATURITY: The term "Weighted Average Life to
Maturity" means, when applied to any Indebtedness at any date, the number of
years obtained by dividing:
(1) the sum of the products obtained by multiplying (i) the
amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment at
final maturity, in respect of the Indebtedness, by (ii) the number of
years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment; by
(2) the then outstanding principal amount of such
Indebtedness.
WHOLLY OWNED SUBSIDIARY: The term "Wholly Owned Subsidiary" of any
Person means a Subsidiary of such Person all of 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.
The definitions of certain other terms are contained herein, including
those specified in Articles 15 and 16 hereof.
ARTICLE 2.
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
SECTION 2.1. DESIGNATION, AMOUNT AND ISSUE OF NOTES. The Notes shall be
designated as "8% Secured Convertible Notes due 2007." Notes not to exceed the
aggregate principal amount of $29,000,000 upon the execution of this Indenture,
or (except pursuant to Sections 2.5, 2.6, 3.3, 15.2 and 16.2 hereof) from time
to time thereafter, may be executed by the Company and delivered to the Trustee
for authentication, and the Trustee shall thereupon authenticate and deliver
said Notes upon the written order of the Company, signed by the Company's (a)
President, Executive Vice President or any Vice President (whether or not
designated by a word or words added after the title "Vice President") and (b)
Treasurer or Assistant Treasurer or its Secretary or any Assistant Secretary,
without any further action by the
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Company hereunder other than the provision to the Trustee of an Officer's
Certificate and Opinion of Counsel.
SECTION 2.2. FORM OF NOTES. The Notes and the Trustee's certificate of
authentication to be borne by such Notes shall be substantially in the form set
forth in EXHIBIT A attached hereto, which is incorporated in and made a part of
this Indenture.
Any of the Notes may have such letters, numbers or other marks of
identification and such notations, legends and endorsements as the officers
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Notes may be
listed or designated for issuance, or to conform to usage.
The Global Note shall represent such of the outstanding Notes as shall
be specified therein and shall provide that it shall represent the aggregate
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate amount of outstanding Notes represented thereby may from time to time
be increased or reduced to reflect transfers or exchanges permitted hereby. Any
endorsement of the Global Note to reflect the amount of any increase or decrease
in the amount of outstanding Notes represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee, in such manner and
upon instructions given by the holder of such Notes in accordance with this
Indenture. Payment of principal of and interest and premium, if any (including
any redemption price), on the Global Note shall be made to the holder of such
Note.
The terms and provisions contained in the form of Note attached as
Exhibit A hereto shall constitute, and is hereby expressly made, a part of this
Indenture and to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
SECTION 2.3. DATE AND DENOMINATION OF NOTES; PAYMENTS OF INTEREST. The
Notes shall be issuable in registered form without coupons in denominations of
$1,000 principal amount and integral multiples thereof. Every Note shall be
dated the date of its authentication, and shall bear interest from the
applicable date and accrued interest shall be payable June 15 and December 15,
commencing December 15, 2004 as specified on the face of the form of Note,
attached as EXHIBIT A attached hereto.
The person in whose name any Note (or its Predecessor Note) is
registered at the close of business on any record date with respect to any
interest payment date (including any Note that is converted after the record
date and on or before the interest payment date) shall be entitled to receive
the interest payable on such interest payment date notwithstanding the
cancellation of such Note upon any transfer, exchange or conversion subsequent
to the record date and on or prior to such interest payment date. Interest may,
at the option of the Company, be paid by check mailed to the address of such
person on the Note registry; PROVIDED, that, with respect to any holder of Notes
with an aggregate principal amount equal to or in excess of $2,000,000, at the
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request of such holder in writing to the Company, interest on such holder's
Notes shall be paid by wire transfer in immediately available funds in
accordance with the wire transfer instruction supplied by such holder from time
to time to the Trustee and paying agent (if different from Trustee) at least two
days prior to the applicable record date. The term "record date" with respect to
any interest payment date shall mean the June 1 or December 1 preceding said
June 15 or December 15, respectively.
Interest on the Notes shall be computed on the basis of a 360-day year
comprised of twelve 30-day months compounded semi-annually.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any said June 15 or December 15 (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Noteholder on
the relevant record date by virtue of his having been such Noteholder; and such
Defaulted Interest shall be paid by the Company, at its election in each case,
as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest to be paid on each Note and
the date of the payment (which shall be not less than twenty-five (25)
days after the receipt by the Trustee of such notice, unless the
Trustee shall consent to an earlier date), and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted
Interest which shall be not more than fifteen (15) days and not less
than ten (10) days prior to the date of the proposed payment and not
less than ten (10) days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company
of such special record date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the special record date therefor to be mailed, first-class
postage prepaid, to each Noteholder as of such special record date at
his address as it appears in the Note Register, not less than ten (10)
days prior to such special record date. Notice of the proposed payment
of such Defaulted Interest and the special record date therefor having
been so mailed, such Defaulted Interest shall be paid to the persons in
whose names the Notes (or their respective Predecessor Notes) were
registered at the close of business on such special record date and
shall no longer be payable pursuant to the following clause (2).
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(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which the Notes
may be listed or designated for issuance, and upon such notice as may
be required by such exchange or automated quotation system, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
SECTION 2.4. EXECUTION OF NOTES. The Notes shall be signed in the name
and on behalf of the Company by either the facsimile or manual signature of its
President, its Chief Executive Officer, any of its Executive or Senior Vice
Presidents, or any of its Vice Presidents (whether or not designated by a number
or numbers or word or words added before or after the title "Vice President")
and attested by either the manual or facsimile signature of its Secretary or any
of its Assistant Secretaries (which may be printed, engraved or otherwise
reproduced thereon, by facsimile or otherwise). Only such Notes as shall bear
thereon a certificate of authentication substantially in the form set forth on
the form of Note attached as Exhibit A hereto, manually executed by the Trustee
(or an authenticating agent appointed by the Trustee as provided by Section
19.10 hereof), shall be entitled to the benefits of this Indenture or be valid
or obligatory for any purpose. Such certificate by the Trustee (or such an
authenticating agent) upon any Note executed by the Company shall be conclusive
evidence that the Note so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this
Indenture.
In case any officer of the Company who shall have signed any of the
Notes shall cease to be such officer before the Notes so signed shall have been
authenticated and delivered by the Trustee, or disposed of by the Company, such
Notes nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Notes had not ceased to be such officer of the
Company; and any Note may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Note, shall be the proper officers
of the Company, although at the date of the execution of this Indenture any such
person was not such an officer.
SECTION 2.5. EXCHANGE AND REGISTRATION OF TRANSFER OF NOTES;
DEPOSITARY.
(a) (1) The Company shall cause to be kept at the Corporate
Trust Office a register (the register maintained in such office and in
any other office or agency of the Company designated pursuant to
Section 5.2 hereof being herein sometimes collectively referred to as
the "Note Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Notes and of transfers of Notes. Such register shall be in written form
or in any form capable of being converted into written form within a
reasonable period of time. The Trustee is hereby appointed "Note
Registrar" for the purpose of registering Notes and transfers of Notes
as herein provided. The Company may appoint one or more co-registrars
in accordance with Section 5.2 hereof.
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(2) Upon surrender for registration of transfer of
any Note to the Note Registrar or any co-registrar, and
satisfaction of the requirements for such transfer set forth
in this Section 2.5, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of
any authorized denominations and of a like aggregate principal
amount and bearing such restrictive legends as may be required
by this Indenture.
(3) Notes may be exchanged for other Notes of any
authorized denominations and of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at any
such office or agency. Whenever any Notes are so surrendered
for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Notes which the Noteholder
making the exchange is entitled to receive, bearing
registration numbers not contemporaneously outstanding.
(4) All Notes presented or surrendered for
registration of transfer or for exchange shall (if so required
by the Company, the Trustee, the Note Registrar or any
co-registrar) be duly endorsed, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to
the Company and duly executed, by the Noteholder thereof or
his attorney-in-fact duly authorized in writing.
(5) No service charge shall be charged to the
Noteholder for any exchange or registration of transfer of
Notes, but the Company may require payment of a sum sufficient
to cover any tax, assessments or other governmental charges
that may be imposed in connection therewith other than stamp
or other duties imposed with respect to the issuance of the
Notes, which shall be paid by the Company.
(6) None of the Company, the Trustee, the Note
Registrar or any co-registrar shall be required to exchange or
register a transfer of (a) any Notes for a period of fifteen
(15) days next preceding any selection of Notes to be redeemed
or (b) any Notes called for redemption or, if a portion of any
Note is selected or called for redemption, such portion
thereof selected or called for redemption or (c) any Notes
surrendered for conversion or, if a portion of any Note is
surrendered for conversion, such portion thereof surrendered
for conversion or (d) any Notes, or a portion of any Note,
surrendered for repurchase (and not withdrawn) in connection
with a Repurchase Event.
(7) All Notes issued upon any transfer or exchange of
Notes in accordance with this Indenture shall be the valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture as the
Notes surrendered upon such registration of transfer or
exchange.
(b) So long as the Notes are eligible for book-entry
settlement with the Depositary, unless otherwise required by law, all
Notes shall be represented by a Note in
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global form (the "Global Note") registered in the name of the
Depositary or the nominee of the Depositary. The transfer and exchange
of beneficial interests in the Global Note shall be effected through
the Depositary (but not the Trustee or the Custodian) in accordance
with this Indenture (including the restrictions on transfer set forth
herein) and the procedures of the Depositary therefor.
(c) (1) Notwithstanding any other provisions of this Indenture
(other than the provisions set forth in this Section 2.5(c)), the
Global Note may not be transferred as a whole or in part except by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by
the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary.
(2) The Depositary shall be a clearing agency
registered under the Exchange Act. The Company initially
appoints The Depository Trust Company to act as Depositary
with respect to the Global Note. Initially, the Global Note
shall be issued to the Depositary, registered in the name of
Cede & Co., as the nominee of the Depositary, and deposited
with the Trustee as custodian for Cede & Co.
(3) If (i) the Depositary notifies the Company that
it is unwilling or unable to continue as, or ceases to be, a
clearing agency registered under Section 17A of the Exchange
Act and a successor to the Depositary registered as a clearing
agency under Section 17A of the Exchange Act is not able to be
appointed by the Company within 90 calendar days, or (ii) the
Depositary is at any time unwilling or unable to continue as
Depositary and a successor to the Depositary is not able to be
appointed by the Company within 90 calendar days, or (iii) the
Company, at its option, notifies the Trustee in writing that
it elects to cause the issuance of Notes in the form of
definitive Notes, the Company shall issue notes in
denominations of $1,000 or an integral multiple thereof to all
beneficial owners of the Global Note in exchange for their
beneficial interests therein. If an Event of Default occurs
and is continuing, the Company shall, at the request of the
Noteholder thereof, exchange all or part of the Global Note
for one or more definitive Notes; PROVIDED, that the principal
amount of each of such definitive Note and such Global Note,
after such exchange, shall be $1,000.00 or an integral
multiple thereof. Whenever a Global Note is exchanged as a
whole for one or more definitive Notes it shall be surrendered
by the holder thereof to the Trustee for cancellation.
(4) If a Note in definitive form is issued in
exchange for any portion of a Global Note after the close of
business on any record date at the office or agency where such
exchange occurs and before the opening of business at such
office or agency on the next succeeding interest payment date,
interest will not be payable on such interest payment date in
respect of such definitive Note, but will be payable on such
interest payment date only with respect to the exchanged
portion of the Global Note in accordance with the provisions
of this Indenture.
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(5) Definitive Notes issued in exchange for all or a
part of the Global Note pursuant to this Section 2.5(c) shall
be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from
its direct or indirect participants or otherwise, shall
instruct the Trustee. Upon execution and authentication, the
Trustee shall deliver such definitive Notes to the persons in
whose names such definitive Notes are so registered.
(6) At such time as all interests in the Global Note
have been redeemed, converted, canceled, repurchased or
transferred, the Global Note shall be, upon receipt thereof,
canceled by the Trustee in accordance with standing procedures
and instructions existing between the Depositary and the
Custodian. At any time prior to such cancellation, if any
interest in the Global Note is exchanged for definitive Notes,
redeemed, converted, canceled, repurchased or transferred to a
transferee who receives definitive Notes therefor or any
definitive Note is exchanged or transferred for part of the
Global Note, the principal amount of the Global Note shall, in
accordance with the standing procedures and instructions
existing between the Depositary and the Custodian, be
appropriately reduced or increased, as the case may be, and an
endorsement shall be made on the Global Note, by the Trustee
or the Custodian, at the direction of the Trustee, to reflect
such reduction or increase.
SECTION 2.6. MUTILATED, DESTROYED, LOST OR STOLEN NOTES.
(a) In case any Note shall become mutilated or be destroyed,
lost or stolen, the Company in its discretion may execute, and upon its
request the Trustee or an authenticating agent appointed by the Trustee
shall authenticate and deliver, a new Note, bearing a number not
contemporaneously outstanding, in exchange and substitution for the
mutilated Note, or in lieu of and in substitution for the Note so
destroyed, lost or stolen. In every case the applicant for a
substituted Note shall furnish to the Company, to the Trustee and, if
applicable, to such authenticating agent such security or indemnity as
may be required by them to save each of them harmless for any loss,
liability, cost or expense caused by or connected with such
substitution, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company, to the Trustee and, if
applicable, to such authenticating agent evidence to their satisfaction
of the destruction, loss or theft of such Note and of the ownership
thereof.
(b) The Trustee or such authenticating agent may authenticate
any such substituted Note and deliver the same upon the receipt of such
security or indemnity as the Trustee, the Company and, if applicable,
such authenticating agent may require. Upon the issuance of any
substituted Note, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses connected therewith.
In case any Note which has matured or is about to mature or has been
called for redemption or is about to be converted into Common Stock
shall become mutilated or be destroyed, lost or stolen, the Company
may, instead of issuing a substitute Note, pay or authorize the payment
of or convert or
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authorize the conversion of the same (without surrender thereof except
in the case of a mutilated Note), as the case may be, if the applicant
for such payment or conversion shall furnish to the Company, to the
Trustee and, if applicable, to such authenticating agent such security
or indemnity as may be required by them to save each of them harmless
for any loss, liability, cost or expense caused by or connected with
such substitution, and, in case of destruction, loss or theft, evidence
satisfactory to the Company, the Trustee and, if applicable, any paying
agent or conversion agent of the destruction, loss or theft of such
Note and of the ownership thereof.
(c) Every substitute Note issued pursuant to the provisions of
this Section 2.6 by virtue of the fact that any Note is destroyed, lost
or stolen shall constitute an additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Note shall be
found at any time, and shall be entitled to all the benefits of (but
shall be subject to all the limitations set forth in) this Indenture
equally and proportionately with any and all other Notes duly issued
hereunder. To the extent permitted by law, all Notes shall be held and
owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment or conversion of
mutilated, destroyed, lost or stolen Notes and shall preclude any and
all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the
replacement or payment or conversion of negotiable instruments or other
securities without their surrender.
SECTION 2.7. TEMPORARY NOTES. Pending the preparation of definitive
Notes, the Company may execute and the Trustee or an authenticating agent
appointed by the Trustee shall, upon written request of the Company,
authenticate and deliver temporary Notes (printed or lithographed). Temporary
Notes shall be issuable in any authorized denomination, and substantially in the
form of the definitive Notes but with such omissions, insertions and variations
as may be appropriate for temporary Notes, all as may be determined by the
Company. Every such temporary Note shall be executed by the Company and
authenticated by the Trustee or such authenticating agent upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Notes. Without unreasonable delay the Company will execute and
deliver to the Trustee or such authenticating agent definitive Notes (other than
in the case of Notes in global form) and thereupon any or all temporary Notes
(other than any the Global Note) may be surrendered in exchange therefor, at
each office or agency maintained by the Company pursuant to Section 5.2 hereof
and the Trustee or such authenticating agent shall authenticate and deliver in
exchange for such temporary Notes an equal aggregate principal amount of
definitive Notes. Such exchange shall be made by the Company at its own expense
and without any charge therefor. Until so exchanged, the temporary Notes shall
in all respects be entitled to the same benefits and subject to the same
limitations under this Indenture as definitive Notes authenticated and delivered
hereunder.
SECTION 2.8. CANCELLATION OF NOTES PAID, ETC. All Notes surrendered for
the purpose of payment, redemption, repurchase, conversion, exchange or
registration of transfer, shall, if surrendered to the Company or any paying
agent or any Note Registrar or any conversion agent, be surrendered to the
Trustee and promptly canceled by it, or, if surrendered to
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the Trustee, shall be promptly canceled by it, and no Notes shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Indenture. Upon written instructions of the Company, the Trustee shall destroy
canceled Notes and, after such destruction, shall deliver a certificate of such
destruction to the Company. If the Company shall acquire any of the Notes, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Notes unless and until the same are delivered
to the Trustee for cancellation.
SECTION 2.9. CUSIP NUMBERS. The Company may use "CUSIP" numbers (if
then generally in use) in issuing the Notes and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; PROVIDED,
HOWEVER, 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 and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers.
ARTICLE 3.
REDEMPTION OF NOTES
SECTION 3.1. REDEMPTION PRICES.
(a) OPTIONAL REDEMPTION. The Company may, at its option,
redeem all or from time to time any part of the Notes on any date prior
to maturity, upon notice as set forth in Section 3.2 hereof, and at the
optional redemption prices set forth in the form of Note attached as
EXHIBIT A attached hereto, together with accrued interest, if any, to,
but excluding, the date fixed for redemption, PROVIDED, HOWEVER, that,
other than as provided in Section 3.1(b) hereof, no such redemption
shall be effected before June 18, 2006.
(b) PROVISIONAL REDEMPTION. The Notes may not be redeemed by
the Company, in whole or in part, pursuant to this Section 3.1(b) prior
to June 18, 2005. After such date, the Notes may be redeemed by the
Company (a "Provisional Redemption"), in whole or in part, at any time
upon notice as set forth in Section 3.2 hereof, at a redemption price
equal to $1,000 per $1,000 principal amount of Notes to be redeemed
plus accrued and unpaid interest, if any, to the date of redemption
(the "Provisional Redemption Date") if the closing price of the Common
Stock shall have exceeded 150% of the Conversion Price then in effect
for at least 20 Trading Days in any consecutive 30-Trading Day period
ending on the Trading Day prior to the date of mailing of the notice of
redemption pursuant to Section 3.2 hereof (the "Notice Date");
PROVIDED, that in no event shall the Company be entitled to cause a
Provisional Redemption to occur in accordance with this Section 3.1(b)
unless, at the time such Provisional Redemption occurs, all of the
shares of Common Stock then issuable upon conversion of the Notes to be
so redeemed may then be sold in the open market by the holders of such
Notes (assuming such conversion) without requiring registration under
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the Securities Act. For purposes of this Article, the term "Conversion
Price" shall have the meaning given such term in Section 15.4 hereof.
SECTION 3.2. NOTICE OF REDEMPTION; SELECTION OF NOTES.
(a) In case the Company shall desire to exercise the right to
redeem all or, as the case may be, any part of the Notes pursuant to
Section 3.1 hereof, it shall fix a date for redemption, and it, or at
its request (which must be received by the Trustee at least ten (10)
Business Days prior to the date the Trustee is requested to give notice
as described below unless a shorter period is agreed to by the
Trustee), the Trustee in the name of and at the expense of the Company,
shall mail or cause to be mailed a notice of such redemption at least
twenty (20) and not more than sixty (60) days prior to the date fixed
for redemption to the holders of Notes so to be redeemed as a whole or
in part at their last addresses as the same appear on the Note Register
(PROVIDED, that if the Company shall give such notice, it shall also
give such notice, and notice of the Notes to be redeemed, to the
Trustee). Such mailing shall be by first class mail. The notice if
mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the holder receives such notice.
In any case, failure to give such notice by mail or any defect in the
notice to the holder of any Note designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the
redemption of any other Note.
(b) Each such notice of redemption shall identify the Notes
(including CUSIP number(s)) to be redeemed, shall specify the aggregate
principal amount of Notes to be redeemed, the date fixed for
redemption, the redemption price at which Notes are to be redeemed, the
place or places of payment, that payment will be made upon presentation
and surrender of such Notes, that interest accrued to, but excluding,
the date fixed for redemption will be paid as specified in said notice,
and that on and after said date interest thereon or on the portion
thereof to be redeemed will cease to accrue. Such notice shall also
state the current Conversion Price and the date on which the right to
convert such Notes or portions thereof into Common Stock will expire.
If fewer than all the Notes are to be redeemed, the notice of
redemption shall identify the Notes to be redeemed. In case any Note is
to be redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state
that on and after the date fixed for redemption, upon surrender of such
Note, a new Note or Notes in principal amount equal to the unredeemed
portion thereof will be issued.
(c) On or prior to the redemption date specified in the notice
of redemption given as provided in this Section 3.2, the Company will
deposit with the Trustee or with one or more paying agents (or, if the
Company is acting as its own paying agent, set aside, segregate and
hold in trust as provided in Section 5.4 hereof) an amount of money
sufficient to redeem on the redemption date all the Notes (or portions
thereof) so called for redemption (other than those theretofore
surrendered for conversion into Common Stock) at the appropriate
redemption price, together with accrued interest to, but excluding, the
date fixed for redemption; PROVIDED, that if such payment is made on
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the redemption date it must be received by the Trustee or paying agent,
as the case may be, by 10:00 a.m.
New York City time, on such date. If
any Note called for redemption is converted pursuant hereto, any money
deposited with the Trustee or any paying agent or so segregated and
held in trust for the redemption of such Note shall be paid to the
Company upon its request, or, if then held by the Company shall be
discharged from such trust.
(d) If fewer than all the Notes are to be redeemed, the
Company will give the Trustee written notice in the form of an
Officers' Certificate not fewer than twenty-five (25) days (or such
shorter period of time as may be acceptable to the Trustee) prior to
the redemption date as to the aggregate principal amount of Notes to be
redeemed. If fewer than all the Notes are to be redeemed, the Trustee
shall select the Notes or portions thereof to be redeemed (in principal
amounts of $1,000 or integral multiples thereof), by lot, or by a
method the Trustee considers fair and appropriate (as long as such
method is not prohibited by the rules of any United States national
securities exchange or of an established automated over-the-counter
trading market in the United States on which the Notes are then
listed). If any Note selected for partial redemption is converted in
part after such selection, the converted portion of such Note shall be
deemed (so far as is possible) to be the portion to be selected for
redemption. The Notes (or portions thereof) so selected shall be deemed
duly selected for redemption for all purposes hereof, notwithstanding
that any such Note is converted as a whole or in part before the
mailing of the notice of redemption.
(e) Upon any redemption of less than all Notes, the Company
and the Trustee may (but need not) treat as outstanding any Notes
surrendered for conversion during the period of fifteen (15) days next
preceding the mailing of a notice of redemption and may (but need not)
treat as not outstanding any Note authenticated and delivered during
such period in exchange for the unconverted portion of any Note
converted in part during such period.
SECTION 3.3. PAYMENT OF NOTES CALLED FOR REDEMPTION.
(a) If notice of redemption has been given as above provided,
the Notes or portion of Notes with respect to which such notice has
been given shall, unless converted into Common Stock pursuant to the
terms hereof, become due and payable on the date and at the place or
places stated in such notice at the applicable redemption price,
together with interest accrued to, but excluding, the date fixed for
redemption, and on and after said date (unless the Company shall
default in the payment of such Notes at the redemption price, together
with interest accrued to, but excluding, said date) interest on the
Notes or portion of Notes so called for redemption shall cease to
accrue and such Notes shall cease after the close of business on the
Business Day next preceding the date fixed for redemption to be
convertible into Common Stock and, except as provided in Sections 8.5
and 13.4 hereof, to be entitled to any benefit or security under this
Indenture, and the holders thereof shall have no right in respect of
such Notes except the right to receive the redemption price thereof and
unpaid interest to, but excluding, the date fixed for
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redemption. On presentation and surrender of such Notes at a place of
payment in said notice specified, the said Notes or the specified
portions thereof to be redeemed shall be paid and redeemed by the
Company at the applicable redemption price, together with interest
accrued thereon to, but excluding, the date fixed for redemption;
PROVIDED, that, if the applicable redemption date is an interest
payment date, the semi-annual payment of interest becoming due on such
date shall be payable to the holders of such Notes registered as such
on the relevant record date subject to the terms and provisions of
Section 2.3 hereof.
(b) Upon presentation of any Note redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to
the holder thereof, at the expense of the Company, a new Note or Notes,
of authorized denominations, in principal amount equal to the
unredeemed portion of the Notes so presented.
(c) Notwithstanding the foregoing, the Trustee shall not
redeem any Notes or mail any notice of optional redemption during the
continuance of a default in payment of interest or premium on the Notes
or of any Event of Default of which, in the case of any Event of
Default other than under Sections 7.1(a), (b), (c), (e), (i) or (j)
hereof, a Responsible Officer of the Trustee has knowledge. If any Note
called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and premium, if any, shall, until paid or
duly provided for, bear interest from the date fixed for redemption at
the Default Rate and such Note shall remain convertible into Common
Stock until the principal and premium, if any, shall have been paid or
duly provided for.
SECTION 3.4. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION. In
connection with any redemption of Notes, the Company may arrange for the
purchase and conversion of any Notes not converted prior to the expiration of
such conversion right by an agreement with one or more investment bankers or
other purchasers to purchase such Notes by paying to the Trustee in trust for
the Noteholders, on or before the date fixed for redemption, an amount not less
than the applicable redemption price, together with interest accrued to the date
fixed for redemption, of such Notes. Notwithstanding anything to the contrary
contained in this Article 3, the obligation of the Company to pay the redemption
price of such Notes, together with interest accrued to, but excluding, the date
fixed for redemption, shall be deemed to be satisfied and discharged to the
extent such amount is so paid by such purchasers. If such an agreement is
entered into, a copy of which, certified as true and correct by the Secretary or
Assistant Secretary of the Company will be filed with the Trustee prior to the
date fixed for redemption, any Notes not duly surrendered for conversion by the
holders thereof may, at the option of the Company, be deemed, to the fullest
extent permitted by law, acquired by such purchasers from such holders and
(notwithstanding anything to the contrary contained in Article 15 hereof)
surrendered by such purchasers for conversion, all as of immediately prior to
the close of business on the date fixed for redemption (and the right to convert
any such Notes shall be deemed to have been extended through such time), subject
to payment of the above amount as aforesaid. At the direction of the Company,
the Trustee shall hold and dispose of any such amount paid to it in the same
manner as it would monies deposited with it by the Company for the redemption of
Notes. Without the Trustee's prior written consent, no arrangement between
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the Company and such purchasers for the purchase and conversion of any Notes
shall increase or otherwise affect any of the powers, duties, responsibilities
or obligations of the Trustee as set forth in this Indenture, and the Company
agrees to indemnify the Trustee from, and hold it harmless against, any and all
loss, liability, damage, claim or expense arising out of or in connection with
any such arrangement for the purchase and conversion of any Notes between the
Company and such purchasers, including the costs and expenses incurred by the
Trustee in the defense of any claim or liability arising out of or in connection
with the exercise or performance of any of its powers, duties, responsibilities
or obligations under this Indenture.
ARTICLE 4.
SUBORDINATION OF NOTES AND GUARANTY OBLIGATIONS
SECTION 4.1. AGREEMENT OF SUBORDINATION. The Company and each
Subsidiary Guarantor covenants and agrees, and each holder of Notes issued
hereunder by his acceptance of such Notes and such Subsidiary Guarantee, as the
case may be, likewise covenants and agrees, that all Notes shall be issued, and
the Subsidiary Guarantees shall be given, in each case subject to the provisions
of the Intercreditor Agreement; and each person holding any Note, whether upon
original issue or upon transfer, assignment or exchange thereof, and any person
entitled to the benefits of any Subsidiary Guarantee, accepts and agrees to be
bound by such provisions, all as if such provisions were set forth verbatim
herein.
ARTICLE 5.
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.1. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The Company
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal of and premium, if any, and interest on each of the Notes at the
places, at the respective times and in the manner provided herein and in the
Notes. Each installment of interest on the Notes due on any semi-annual interest
payment date may be paid by mailing checks for the interest payable to or upon
the written order of the holders of Notes entitled thereto as they shall appear
on the registry books of the Company, PROVIDED, that, with respect to any holder
of Notes with an aggregate principal amount equal to or in excess of $2,000,000,
at the request of such holder in writing to the Company, interest on such
holder's Notes shall be paid by wire transfer in immediately available funds in
accordance with the wire transfer instructions supplied by such holder from time
to time to the Trustee and paying agent (if different from Trustee) at least two
days prior to the applicable record date; PROVIDED FURTHER, that any payment to
the Depositary or its nominee shall be made by wire transfer of immediately
available funds to the account of the Depositary or its nominee. The Company
shall pay interest on overdue principal at the rate borne by the Notes plus 2%
per annum (the "DEFAULT RATE"), and it shall pay interest on overdue
installments of interest at such rate to the extent lawful.
SECTION 5.2. MAINTENANCE OF OFFICE OR AGENCY. The Company will maintain
in the Borough of Manhattan, The City of
New York, an office or agency where the
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Notes may be surrendered for registration of transfer or exchange or for
presentation for payment or for conversion, redemption or repurchase and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency not designated or appointed by the Trustee. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office or the
office or agency of the Trustee in the Borough of Manhattan, The City of
New
York.
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,
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 will 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 initially designates the Trustee as paying agent,
Note Registrar, Custodian and conversion agent and the Corporate Trust Office
and the office or agency of the Trustee in the Borough of Manhattan, The City of
New York (which initially shall be the office of the Trustee located at 000
Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 10286) as one such office or agency of
the Company for each of the aforesaid purposes.
So long as the Trustee is the Note Registrar, the Trustee agrees to
mail, or cause to be mailed, the notices set forth in Section 8.10(a) hereof and
the third paragraph of Section 8.11 hereof.
SECTION 5.3. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 8.10 hereof, a Trustee, so that
there shall at all times be a Trustee hereunder.
SECTION 5.4. PROVISIONS AS TO PAYING AGENT.
(a) If the Company shall appoint a paying agent other than the
Trustee or if the Trustee shall appoint such a paying agent, it will
cause such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to
the provisions of this Section 5.4:
(1) that it will hold all sums held by it as such
agent for the payment of the principal of and premium, if any,
or interest on the Notes (whether such sums have been paid to
it by the Company or by any other obligor on the Notes) in
trust for the benefit of the holders of the Notes;
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(2) that it will give the Trustee notice of any
failure by the Company (or by any other obligor on the Notes)
to make any payment of the principal of and premium, if any,
or interest on the Notes when the same shall be due and
payable; and
(3) that at any time during the continuance of an
Event of Default, upon request of the Trustee, it will
forthwith pay to the Trustee all sums so held in trust.
The Company shall, on or before each due date of the principal
of, premium, if any, or interest on the Notes, deposit with the paying
agent a sum sufficient to pay such principal, premium, if any, or
interest, and (unless such paying agent is the Trustee) the Company
will promptly notify the Trustee of any failure to take such action,
PROVIDED, that if such deposit is made on the due date, such deposit
must be received by the paying agent by 10:00 a.m., New York City time,
on such date.
(b) If the Company shall act as its own paying agent, it will,
on or before each due date of the principal of, premium, if any, or
interest on the Notes, set aside, segregate and hold in trust for the
benefit of the holders of the Notes a sum sufficient to pay such
principal, premium, if any, or interest so becoming due and will notify
the Trustee of any failure to take such action and of any failure by
the Company (or any other obligor under the Notes) to make any payment
of the principal of, premium, if any, or interest on the Notes when the
same shall become due and payable.
(c) Anything in this Section 5.4 to the contrary
notwithstanding, the Company may, at any time, for the purpose of
obtaining a satisfaction and discharge of this Indenture, or for any
other reason, pay or cause to be paid to the Trustee all sums held in
trust by the Company or any paying agent hereunder as required by this
Section 5.4, such sums to be held by the Trustee upon the trusts herein
contained and upon such payment by the Company or any paying agent to
the Trustee, the Company or such paying agent shall be released from
all further liability with respect to such sums.
(d) Anything in this Section 5.4 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in
this Section 5.4 is subject to Sections 13.3 and 13.4 hereof.
SECTION 5.5. EXISTENCE. Subject to Article 12 hereof, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence.
SECTION 5.6. STAY, EXTENSION AND USURY LAWS. The Company covenants (to
the extent that it may lawfully do so) that it shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law or other law which would prohibit or
forgive the Company from paying all or any portion of the principal of or
interest on the Notes as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance of
this Indenture;
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and the Company (to the extent it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not, by
resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law has been enacted.
SECTION 5.7. COMPLIANCE CERTIFICATE. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate one of the signers of which shall be the chief executive,
chief financial or chief accounting officer of the Company, stating that in the
course of the performance by the signers of their duties as officers of the
Company they would normally have knowledge of any Default and whether or not the
signers know of any Default that occurred during such period. If they do, the
certificate shall describe the Default, its status and what action the Company
is taking or proposes to take with respect thereto. The Company also shall
comply with Section 314(a)(4) of the TIA.
SECTION 5.8. FURTHER INSTRUMENTS AND ACTS. Upon request of the Trustee,
the Company will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 5.9. PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all material taxes, assessments and governmental charges levied
or imposed upon it or any subsidiary or upon the income, profits or property of
the Company or any subsidiary, (2) all material lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any subsidiary; and (3) all stamps and similar
duties, if any, which may be imposed by the United States, the United Kingdom or
any political subdivision thereof or therein in connection with the issuance,
transfer, exchange or conversion of any Notes or with respect to this Indenture;
PROVIDED, HOWEVER, that, in the case of clauses (1) and (2) that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 5.10. LIMITATION ON ADDITIONAL INDEBTEDNESS. The Company agrees
that until any conversion, redemption, repurchase or other retirement of all of
the Notes hereunder, the Company shall not create, incur, assume or guarantee,
or otherwise become directly or indirectly liable with respect to, any
Indebtedness other than Permitted Indebtedness.
SECTION 5.11. LIENS. The Company will not, and will not permit any
Restricted Subsidiary of the Company to, issue, assume or guarantee any
Indebtedness secured by any Lien on any property, or any improvements, additions
and accessions thereto and all proceeds thereof, now owned or hereafter acquired
by the Company or such Restricted Subsidiary. The foregoing restriction will
not, however, apply to the Company and its Restricted Subsidiaries with respect
to:
(i) Liens existing on the Issue Date or provided for
pursuant to agreements (and terms thereof) existing on the
Issue Date securing Indebtedness
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(A) existing on the Issue Date or (B) to be incurred under
agreements existing on the Issue Date;
(ii) Liens on the property of any Person existing at
the time such Person becomes a Restricted Subsidiary and not
incurred as a result of (or in connection with or in
anticipation of) such Person becoming a Restricted Subsidiary,
PROVIDED, that such Liens do not extend to or cover any
property of the Company or any of its Restricted Subsidiaries
other than the property encumbered at the time such Person
becomes a Restricted Subsidiary, all improvements, additions
and accessions thereto and all proceeds thereof;
(iii) Liens affecting property existing at the time
it becomes property of the Company or a Restricted Subsidiary
and not incurred as a result of or in connection with or in
anticipation of the acquisition of such property, and all
improvements, additions and accessions thereto and all
proceeds thereof;
(iv) Any Lien extending, renewing or replacing (or
successive extensions, renewals or replacements of) any Lien
of any type permitted under clauses (i) through (iii) above,
including any Lien securing any Refinancing Indebtedness
relating to the Indebtedness referenced in clauses (i) through
(iii) above, PROVIDED, that such Lien extends to or covers
only the property that is subject to the Lien being extended,
renewed or replaced and that the principal amount of
Indebtedness secured thereby shall not exceed the sum of (A)
the principal amount of Indebtedness so secured at the time of
such extension, renewal or replacement, and (B) any expenses
of the Company and its Restricted Subsidiaries (including any
premium) incurred in connection with any such extension,
renewal or replacement;
(v) Liens securing Indebtedness of the Company or any
Restricted Subsidiary classified by the Company under clause
(vi) of the definition of "Permitted Indebtedness";
(vi) Liens securing PARI PASSU Indebtedness;
(vii) Other Liens (exclusive of any Lien of any type
otherwise permitted under clauses (i) through (vi) above)
securing Indebtedness of the Company or any of its Restricted
Subsidiaries in an aggregate principal amount that does not at
the time such Indebtedness is incurred exceed 20% of
Consolidated Net Tangible Assets (as shown in the most recent
audited consolidated balance sheet of the Company and its
Restricted Subsidiaries); and
(viii) Any interest or title of a lessor under any
Capitalized Lease Obligations otherwise permitted under this
Indenture.
SECTION 5.12. RESTRICTED PAYMENTS. The Company shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly: (i) declare or pay
any dividend or make
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any distribution on account of the Company's or any of its Subsidiaries' Equity
Interests (other than dividends or distributions payable in Equity Interests
(other than Disqualified Stock) of the Company, dividends or distributions
payable to the Company or any Wholly Owned Subsidiary of the Company that is a
Restricted Subsidiary (ii) purchase, redeem or otherwise acquire or retire for
value any Equity Interests of the Company or any direct or indirect parent of
the Company or other Affiliate or Subsidiary of the Company (other than any such
Equity Interests owned by the Company or any Wholly Owned Subsidiary of the
Company that is a Restricted Subsidiary), any Permitted Employee Repurchase or
any Qualified Repurchase Plan Repurchase; or (iii) make any principal payment
on, or purchase, redeem, defease or otherwise acquire or retire for value any
Indebtedness that is contractually subordinated to the Notes, except at final
maturity, other than through the purchase or acquisition by the Company of
Indebtedness through the issuance in exchange therefor of Equity Interests other
than Disqualified Stock (all such payments and other actions set forth in
clauses (i) through (iii) above being collectively referred to as "Restricted
Payments"), unless, at the time of and after giving effect to such Restricted
Payment:
(a) no Default or Event of Default shall have
occurred and be continuing or would occur as a consequence
thereof;
(b) the Company would, at the time of such Restricted
Payment and after giving pro forma effect thereto as if such
Restricted Payment had been made at the beginning of the
applicable four-quarter period, have been permitted to issue
at least $1.00 of Disqualified Stock pursuant to the Fixed
Charge Coverage Ratio test set forth in Section 5.13 hereof,
PROVIDED, that the Fixed Charge Coverage Ratio for purposes of
such test pursuant to this Section 5.12(b) shall be 2 to 1
rather than 1.5 to 1 as set forth in Section 5.13 hereof; and
(c) such Restricted Payment, together with the
aggregate of all other Restricted Payments made by the Company
and its Subsidiaries after the Issue Date (excluding
Restricted Payments permitted by clauses (ii) and (iii) of the
next succeeding paragraph), is less than the sum, without
duplication, of (i) $5,000,000 plus (ii) 50% of the
Consolidated Net Income of the Company for the period (taken
as one accounting period) from June 1, 2004 to the end of the
Company's most recently ended fiscal quarter for which
internal financial statements are available at the time of
such Restricted Payment (or, if such Consolidated Net Income
for such period is a deficit, less 100% of such deficit), plus
(iii) to the extent not included in the amount described in
clause (ii) above, 100% of the aggregate net Cash proceeds
received after the Issue Date by the Company from the issue or
sale of, or from additional capital contributions in respect
of, Equity Interests of the Company or of debt securities of
the Company or any Subsidiary that have been converted into,
or cancelled in exchange for, Equity Interests of the Company
(other than Equity Interests (or convertible debt securities)
sold to a Subsidiary or an Affiliate of the Company and other
than Disqualified Stock or debt securities that have been
converted into Disqualified Stock).
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The foregoing provisions shall not prohibit (i) the payment of
any dividend within 60 days after the date of declaration thereof, if at said
date of declaration such payment would have complied with the provisions of this
Indenture; (ii) the redemption, repurchase, retirement or other acquisition of
any Equity Interests of the Company or any direct or indirect parent of the
Company in exchange for, or out of the net Cash proceeds of, the substantially
concurrent sale (other than to a Subsidiary or an Affiliate of the Company) of,
or from substantially concurrent additional capital contributions in respect of,
other Equity Interests of the Company (other than any Disqualified Stock);
PROVIDED, that any net Cash proceeds that are utilized for any such redemption,
repurchase, retirement or other acquisition, and any Net Income resulting
therefrom, shall be excluded from clauses (c)(ii) and (c)(iii) of the preceding
paragraph; (iii) the defeasance, redemption or repurchase of Indebtedness that
is contractually subordinated to the Notes with the net Cash proceeds from an
incurrence of Refinancing Indebtedness or the substantially concurrent sale
(other than to a Subsidiary or an Affiliate of the Company) of, or from
substantially concurrent additional capital contributions in respect of, Equity
Interests of the Company (other than Disqualified Stock); PROVIDED, that any net
Cash proceeds that are utilized for any such defeasance, redemption or
repurchase, and any Net Income resulting therefrom, shall be excluded from
clauses (c)(ii) and (c)(iii) of the preceding paragraph; (iv) the repayment or
prepayment of any Indebtedness of the Company with a stated maturity prior to
the stated maturity of the Notes at any time on or before the stated maturity of
such Indebtedness at an amount equal to no more than 100% of the outstanding
principal amount thereof, plus accrued and unpaid interest thereon or (v) upon
the occurrence of a Repurchase Event or an Asset Sale and within 60 days after
the completion of the offer to repurchase the Notes pursuant to the covenants
described under Sections 5.17 and 16.2 hereof, any purchase, repurchase,
redemption, defeasance, acquisition or other retirement for value of
Indebtedness subordinated to the Notes or a Subsidiary Guarantee required
pursuant to the terms thereof as a result of such Repurchase Event or Asset Sale
at a purchase price not to exceed 105% of the outstanding principal amount
thereof, plus accrued and unpaid interest thereon, if any; PROVIDED, HOWEVER,
that at the time of such purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value, no Default or Event of Default shall have
occurred and be continuing (or would result therefrom).
The amount of all Restricted Payments (other than Cash) shall
be the fair market value (evidenced by a Board Resolution delivered to the
Trustee) on the date of the Restricted Payment of the asset(s) proposed to be
transferred by the Company or such Subsidiary, as the case may be, pursuant to
the Restricted Payment. Not later than the date of making any Restricted
Payment, the Company shall deliver to the Trustee an Officers' Certificate
stating that such Restricted Payment is permitted and setting forth the basis
upon which the calculations required by this covenant were computed, which
calculations may be based upon the Company's latest available financial
statements.
SECTION 5.13. DISQUALIFIED STOCK; ISSUANCE OF PREFERRED STOCK. The
Company shall not issue any Disqualified Stock and shall not permit any of its
Subsidiaries to issue any shares of preferred stock; PROVIDED, HOWEVER, that the
Company may issue shares of Disqualified Stock if: (i) the Fixed Charge Coverage
Ratio for the Company's most recently ended four full fiscal quarters for which
internal financial statements are available
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immediately preceding the date on which such Disqualified Stock is issued would
have been at least 1.5 to 1, determined on a pro forma basis (including a pro
forma application of the net proceeds therefrom), as if the Disqualified Stock
had been issued at the beginning of such four-quarter period; (ii) no Default or
Event of Default shall have occurred and be continuing or would occur as a
consequence thereof; and (iii) the terms of such Disqualified Stock expressly
provide that the Company shall not be required to redeem such Disqualified Stock
at any time prior to the date on which all amounts due under this Indenture,
including without limitation all principal and interest due under the Notes,
have been indefeasibly paid in full.
SECTION 5.14. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES. The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to (i)(A) pay dividends or make any other distributions to
the Company or any of its Subsidiaries (1) on its Capital Stock or (2) with
respect to any other interest or participation in, or measured by, its profits,
or (B) pay any Indebtedness owed to the Company or any of its Subsidiaries, (ii)
make loans or advances to the Company or any of its Subsidiaries or (iii)
transfer any of its properties or assets to the Company or any of its
Subsidiaries, except for such encumbrances or restrictions existing under or by
reason of (a) Existing Indebtedness as in effect on the Issue Date, and any
amendments, modifications, restatements, renewals, supplements, refundings,
replacements or refinancings thereof, PROVIDED, that such amendments,
modifications, restatements, renewals, supplements, refundings, replacement or
refinancings are no more restrictive with respect to such dividend and other
payment restrictions than those contained in the Existing Indebtedness as in
effect on the Issue Date, (b) this Indenture and the Notes, (c) applicable law,
regulation, rule, order, approval, license, permit or similar restriction, in
each case issued by a governmental authority, (d) any instrument governing
Acquired Indebtedness or Capital Stock of a Person acquired by the Company or
any of its Subsidiaries as in effect at the time of such acquisition, which
encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of the
Person, so acquired, (e) by reason of customary non-assignment or subletting
provisions in leases and licenses entered into in the ordinary course of
business and consistent with past practices, (f) Purchase Money Obligations for
property acquired in the ordinary course of business that impose restrictions of
the nature described in clause (iii) above on the property so acquired, (g)
agreements relating to the financing of the acquisition of real or tangible
personal property acquired after the Issue Date, PROVIDED, that such encumbrance
or restriction relates only to the property which is acquired and in the case of
any encumbrance or restriction that constitutes a Lien, such Lien constitutes a
Purchase Money Lien, (h) any restriction or encumbrance in the nature of clause
(iii) above contained in contracts for sale of assets permitted by this
Indenture in respect of the assets being sold pursuant to such contract, (i)
contractual encumbrances or restrictions in effect on the Issue Date, (j)
customary provisions contained in leases, licenses or other agreements entered
into in the ordinary course of business or in Permitted Indebtedness, in each
case which do not limit the ability of any Restricted Subsidiary to take any of
the actions described in clauses (i) through (iii) of this Section 5.14 with
respect to a material amount of dividends, distributions, Indebtedness, loans,
advances or sales, leases or transfers of properties or assets, as applicable,
(k) restrictions on Cash or other deposits or net worth or similar type
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restrictions imposed by customers under contracts entered into in the ordinary
course of business or (l) Refinancing Indebtedness, PROVIDED, that the
restrictions contained in the agreements governing such Refinancing Indebtedness
are no more restrictive than those contained in the agreements governing the
Indebtedness being refinanced.
SECTION 5.15. TRANSACTIONS WITH AFFILIATES. The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate (each of the foregoing, an "Affiliate Transaction"), unless (i) such
Affiliate Transaction is on terms that are no less favorable to the Company or
the relevant Subsidiary than those that would have been obtained in a comparable
transaction by the Company or such Subsidiary with an unrelated Person and (ii)
the Company delivers to the Trustee (a) with respect to any Affiliate
Transaction entered into after the date of this Indenture involving aggregate
consideration in excess of $1,000,000, an Officers' Certificate certifying that
such Affiliate Transaction complies with clause (i) above and that such
Affiliate Transaction has been approved by a majority of the disinterested
members of the Board of Directors and (b) with respect to any Affiliate
Transaction involving aggregate consideration in excess of $5,000,000, an
opinion as to the fairness to the Company or such Subsidiary of such Affiliate
Transaction from a financial point of view issued by an investment banking firm
of national standing; PROVIDED, that the following shall not be deemed to be
Affiliate Transactions: (x) any employment agreement entered into by the Company
or any of its Subsidiaries in the ordinary course of business and consistent
with the past practice of the Company or such Subsidiary, (y) transactions
between or among the Company and/or its Wholly Owned Subsidiaries that are
Restricted Subsidiaries, and (z) Restricted Payments permitted by Section 5.12
hereof.
SECTION 5.16. RESTRICTION ON INVESTMENTS. The Company will not, and
will not permit any of its Restricted Subsidiaries to, make any Investments
other than Permitted Investments.
SECTION 5.17. LIMITATION ON USE OF PROCEEDS FROM ASSET SALES.
(a) The Company and its Restricted Subsidiaries shall not, directly or
indirectly, consummate any Asset Sale with or to any Person other than the
Company or a Restricted Subsidiary, unless: (i) the Company or such Restricted
Subsidiary, as the case may be, receives consideration at the time of any such
Asset Sale at least equal to the fair market value of the asset sold or
otherwise disposed of, (ii) at least 75% of the net proceeds from such Asset
Sale are received in Cash or Cash Equivalents (unless (A) such Asset Sale is a
lease) and (iii) with respect to any Asset Sale involving the Equity Interests
of any Restricted Subsidiary, the Company shall sell all of the Equity Interests
of such Restricted Subsidiary it owns; PROVIDED, that the amount of (x) any
liabilities (as shown on the Company's or such Restricted Subsidiary's most
recent balance sheet) of the Company or any Restricted Subsidiary (other than
contingent liabilities and liabilities that are by their terms subordinated to
the Notes or the Subsidiary Guarantees) that are assumed by the transferee of
any such assets pursuant to a customary novation agreement that releases the
Company or such Restricted Subsidiary from further
-41-
liability and (y) in the case of any Asset Sale constituting the transfer (by
merger or otherwise) of all of the Capital Stock of a Restricted Subsidiary, any
liabilities (as shown on such Restricted Subsidiary's most recent balance sheet)
of such Restricted Subsidiary (other than contingent liabilities and liabilities
that are by their terms subordinated to the Notes or the Subsidiary Guarantees)
that will remain outstanding after such transfer and will not be a liability of
the Company or any other Restricted Subsidiary of the Company following such
transfer and (z) any securities, notes or other obligations received by the
Company or any such Restricted Subsidiary from such transferee that are
contemporaneously (subject to ordinary settlement periods) converted by the
Company or such Restricted Subsidiary into Cash (to the extent of the Cash
received), shall be deemed to be Cash for purposes of this provision.
(b) Within 365 days after the receipt of Asset Sale Net Proceeds in
respect of any Asset Sale, the Company must use all such Asset Sale Net Proceeds
either to invest in properties and assets used in a Telecommunication Business
(including, without limitation, a capital investment in any Person which becomes
a Restricted Subsidiary) and/or to reduce the Indebtedness under the Credit
Agreement, the Notes, the PARI PASSU Indebtedness and/or Indebtedness of a
Restricted Subsidiary; PROVIDED, that when any non-Cash proceeds are liquidated,
such proceeds (to the extent they are Asset Sale Net Proceeds) will be deemed to
be Asset Sale Net Proceeds at that time. When the aggregate amount of Excess
Proceeds (as defined below) exceeds $10,000,000, the Company shall make an offer
(the "Excess Proceeds Offer") to apply the Excess Proceeds to repurchase the
Notes at a purchase price equal to 100% of the principal amount of such Notes,
plus accrued and unpaid interest to the date of purchase (the "Excess Proceeds
Purchase Price"), in accordance with the terms contemplated in Section 5.17(c)
hereof. If the Company is required to do so by the terms of any Senior
Indebtedness or PARI PASSU Indebtedness, the Excess Proceeds Offer may be made
ratably to purchase the Notes and such other Senior Indebtedness or PARI PASSU
Indebtedness from the Company on the terms contemplated by such other
Indebtedness at a purchase price not to exceed 100% of the principal amount of
such other Indebtedness plus accrued and unpaid interest to the date of
purchase. To the extent that the aggregate principal amount of the Notes (plus
accrued interest thereon) (and, if applicable, such other Indebtedness) tendered
pursuant to the Excess Proceeds Offer is less than the Excess Proceeds, the
Company may use such deficiency, or a portion thereof, for general corporate
purposes or for other purposes permitted under this Indenture. If the aggregate
principal amount of the Notes surrendered by Holders thereof (and, if
applicable, such other Indebtedness surrendered by holders thereof) exceeds the
amount of Excess Proceeds allocated to the Notes (the "Offer Amount"), the
Company shall select the Notes to be purchased in accordance with the procedures
(including prorating in the event of oversubscription) described under Sections
5.17(c), 5.17(d) and 5.17(e) hereof. "Excess Proceeds" shall mean any Asset Sale
Net Proceeds that is not invested or used to reduce the Indebtedness under the
Credit Agreement, the Notes, the PARI PASSU Indebtedness, or Indebtedness of a
Restricted Subsidiary as provided in the first sentence of this paragraph.
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(c) Within 10 days following the occurrence of an event which mandates
an Excess Proceeds Offer under Section 5.17(b) hereof, the Company shall mail a
notice (along with any other instructions determined by the Company, consistent
with this Section 5.17, that a Holder must follow in order to have its Notes
purchased) to the Trustee and to each Holder stating:
(1) that the Excess Proceeds Offer is being made
pursuant to this Section 5.17 and that all Notes tendered and
not subsequently withdrawn will be accepted for payment and
paid for by the Company (subject to the terms of this Section
5.17);
(2) the Offer Amount and Excess Proceeds Purchase
Price and the purchase date (which shall not be less than 30
days nor more than 60 days after the date such notice is
mailed) (the "Excess Proceeds Offer Payment Date");
(3) that any Note not tendered shall continue to
accrue interest and be convertible and shall continue to be
governed by the terms of this Indenture in all respects;
(4) that, unless the Company defaults in the payment
thereof, all Notes accepted for payment pursuant to the Excess
Proceeds Offer shall cease to accrue interest on and after the
Excess Proceeds Offer Payment Date and cease to be
convertible;
(5) that Holders electing to have any Notes purchased
pursuant to an Excess Proceeds Offer will be required to
surrender the Notes to be purchased to the Paying Agent at the
address specified in the notice prior to the close of business
on the Business Day next preceding the respective Excess
Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their
election on the terms and conditions set forth in such notice;
(7) 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; PROVIDED,
that each Note purchased and each such new Note issued shall
be in a principal amount of $1,000 or integral multiples
thereof;
(8) briefly, the conversion rights of Holders of
Notes;
(9) the Conversion Price and any adjustments thereto,
the date on which the right to convert the Notes will
terminate and the places where such Notes may be surrendered
for conversion; and
(10) that Holders who want to convert Notes must
satisfy the requirements set forth in the Notes.
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(d) Holders electing to have a Note purchased shall be required to
surrender the Note, with an appropriate form duly completed, to the Paying Agent
at the address specified in the notice prior to the close of business on the
Business Day next preceding the Excess Proceeds Offer Payment Date. Holders
shall be entitled to withdraw their election if the Trustee or the Company
receives not later than one Business Day prior to the purchase date a telegram,
telex, facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Note which was delivered for purchase by the Holder
and a statement that such Holder is withdrawing his election to have such Note
purchased. If on the Excess Proceeds Offer Payment Date the aggregate principal
amount of Notes exceeds the Offer Amount, the Company shall select the Notes to
be purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased).
(e) On (or, in the case of clause (ii) of this Section 5.17(e), at the
Company's election, before) the Excess Proceeds Offer Payment Date, the Company
shall (i) accept for payment all Notes or portions thereof tendered and not
theretofore withdrawn and which are selected for repurchase pursuant to the
Excess Proceeds Offer, (ii) deposit with the Paying Agent immediately available
funds sufficient to pay the Excess Proceeds Purchase Price of all Notes or
portions thereof accepted for payment, and (iii) deliver or cause to be
delivered to the Trustee all Notes so tendered, together with an Officers'
Certificate specifying the Notes or portions thereof tendered to the Company or
the Paying Agent and an authentication order, if new Notes are to be issued. The
Paying Agent shall promptly mail or deliver to each holder of Notes so tendered
payment in an amount equal to the Excess Proceeds Purchase Price for such Notes,
and the Trustee shall promptly authenticate and mail or deliver to such Holder
one or more certificates evidencing new Notes equal in aggregate principal
amount to any unpurchased portion of the Notes surrendered; PROVIDED, that each
such new Note shall be in a principal amount of $1,000 or integral multiples
thereof.
The Company shall comply with the requirements of Regulation 14E and
Rule 13e-4 (other than the filing requirements of such rule) under the Exchange
Act, and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with the repurchase of the
Notes pursuant to an Excess Proceeds Offer. To the extent that the provisions of
any such securities laws or regulations conflict with provisions of this Section
5.17, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 5.17(f) by virtue thereof.
SECTION 5.18. SUBSIDIARY GUARANTEES. The Company will not permit any
Restricted Subsidiary, directly or indirectly, to guarantee any Indebtedness of
the Company other than Indebtedness under the Credit Agreement, the Notes, the
PARI PASSU Indebtedness, other Permitted Indebtedness and, to the extent
permitted by this Indenture, Currency Hedge Obligations ("Guaranteed
Indebtedness").
SECTION 5.19. ADDITIONAL SUBSIDIARY GUARANTEES. If the Company or any
of its Restricted Subsidiaries shall acquire or create another Domestic
Subsidiary (other than a Subsidiary that is also a Subsidiary of a Restricted
Subsidiary that is not a Subsidiary Guarantor)
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after the date of this Indenture, then such newly acquired or created Domestic
Subsidiary shall become a Subsidiary Guarantor and execute a Supplemental
Indenture and deliver an Opinion of Counsel, in accordance with the terms of
this Indenture; PROVIDED, that all Subsidiaries that have properly been
designated as Unrestricted Subsidiaries in accordance with this Indenture (i)
shall not be subject to the requirements of this Section 5.19 and (ii) shall be
released from all obligations under any Subsidiary Guarantee, in each case for
so long as they continue to constitute Unrestricted Subsidiaries.
SECTION 5.20. MAINTENANCE OF INSURANCE. The Company and all Restricted
Subsidiaries will at all times maintain with financially sound and reputable
insurance companies insurance on all its property in at least such amounts and
against at least such risks (but including in any event public liability,
product liability and business interruption) as are usually insured against in
the same general area by companies engaged in the same or a similar business.
SECTION 5.21. CORPORATE EXISTENCE. Subject to Article 17 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, and the corporate,
partnership or other existence of each of its Restricted Subsidiaries, in
accordance with the respective organizational documents (as the same may be
amended from time to time) of the Company or any such Restricted Subsidiary and
(ii) the rights (charter and statutory), licenses and franchises of the Company
and its Restricted 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 Restricted Subsidiaries, if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Restricted
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders of the Notes.
SECTION 5.22. PERFECTION OF SECURITY INTERESTS. In each case, subject
to the provisions of Article IV hereof, the Company and the Subsidiary
Guarantors, as applicable, shall preserve the Liens granted by such Person under
the Security Documents and, subject to the provisions of the Security Documents,
shall undertake all actions which are required by applicable law to (a) maintain
the Liens of the Collateral Agent in the Collateral in full force and effect at
all times (including the relevant priority thereof), and (b) preserve and
protect the Collateral and protect and enforce the Company's or such Subsidiary
Guarantor's rights and title and the rights of the Collateral Agent to the
Collateral, including, without limitation, the making or delivery of all filings
and recordations, the payment of fees and other charges and the issuance of
supplemental documentation for such purposes.
SECTION 5.23. LIMITATION ON SALE OR ISSUANCE OF CAPITAL STOCK OF
RESTRICTED SUBSIDIARIES. The Company will not sell, and will not permit any
Restricted Subsidiary, directly or indirectly, to issue or sell, any shares of
Capital Stock of a Restricted Subsidiary (including options, warrants, or other
rights to purchase shares of such Capital Stock) except: (i) to the Company or a
Wholly Owned Subsidiary of the Company; (ii) issuances of director's qualifying
shares or sales to foreign nationals of shares of Capital Stock of Restricted
Subsidiaries which are Foreign Subsidiaries, to the extent required by
-45-
applicable law; or (iii) issuances or sales of Common Stock of a Restricted
Subsidiary so long as immediately giving effect to the issuance or sale, the
Restricted Subsidiary would no longer constitute a Restricted Subsidiary,
PROVIDED, that (x) the proceeds therefrom shall be treated as proceeds from an
Asset Sale in accordance with Section 5.17 hereof and (y) any Investment in any
Person remaining after giving effect to the issuance or sale that would have
been a Permitted Investment if made on the date of the issuance or sale.
SECTION 5.24. PROVISIONS OF REPORTS AND OTHER INFORMATION. At all times
while any Note is outstanding, the Company shall timely file with the SEC and
provide a copy to the Trustee and to each Noteholder, and, upon request, any
beneficial owner of Notes without cost, all such reports and other information
as may be required by Section 13 or 15(d) of the Exchange Act, including,
without limitation, Forms 10-K, 10-Q and 8-K. Upon request without cost, the
Company shall also provide Noteholders and beneficial owners of Notes copies of
all Officers' Certificates delivered to the Trustee under this Indenture. At
such time as the Company is not subject to the reporting requirements of the
Exchange Act, promptly after the same would be required to be filed with the SEC
if the Company then were subject to Section 13 or 15(d) of the Exchange Act, the
Company shall file with the Trustee and supply to each Holder and, upon request,
to any beneficial owner of Notes and any prospective purchaser of Notes, without
cost, copies of its financial statements and certain other reports or
information comparable to that which the Company would have been required to
report pursuant to Sections 13 and 15(d) of the Exchange Act, including, without
limitation, the information that would be required by Forms 10-K, 10-Q and 8-K.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE 6.
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 6.1. NOTEHOLDERS' LISTS. The Company covenants and agrees that
it will furnish or cause to be furnished to the Trustee, semi-annually, not more
than fifteen (15) days after each June 1 and December 1 in each year beginning
with December 1, 2004, and at such other times as the Trustee may request in
writing, within thirty (30) days after receipt by the Company of any such
request (or such lesser time as the Trustee may reasonably request in order to
enable it to timely provide any notice to be provided by it hereunder), a list
in such form as the Trustee may reasonably require of the names and addresses of
the holders of Notes as of a date not more than fifteen (15) days (or such other
date as the Trustee may reasonably request in order to so provide any such
notices) prior to the time such information is furnished, except that no such
list need be furnished so long as the Trustee is acting as Note Registrar.
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SECTION 6.2. PRESERVATION AND DISCLOSURE OF LISTS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses
of the holders of Notes contained in the most recent list furnished to
it as provided in Section 6.1 hereof or maintained by the Trustee in
its capacity as Note Registrar, if so acting. The Trustee may destroy
any list furnished to it as provided in Section 6.1 hereof upon receipt
of a new list so furnished.
(b) The rights of Noteholders to communicate with other
holders of Notes with respect to their rights under this Indenture or
under the Notes and the corresponding rights and duties of the Trustee,
shall be as provided by the Trust Indenture Act.
(c) Every Noteholder, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable
by reason of any disclosure of information as to names and addresses of
holders of Notes made pursuant to the Trust Indenture Act.
SECTION 6.3. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to holders of Notes such
reports concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the times and in
the manner provided pursuant thereto.
(b) A copy of such report shall, at the time of such
transmission to holders of Notes, be filed by the Trustee with each
stock exchange and automated quotation system upon which the Notes are
listed, if any, and with the Company and the Commission. The Company
will notify the Trustee when the Notes are listed on any stock exchange
or automated quotation system and when any such listing is
discontinued.
SECTION 6.4. REPORTS BY COMPANY. The Company shall file with the
Trustee and the Commission, and transmit to holders of Notes, such information,
documents and other reports and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act.
ARTICLE 7.
DEFAULTS AND REMEDIES
SECTION 7.1. EVENTS OF DEFAULT. In case one or more of the following
Events of Default (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body) shall have occurred and be
continuing:
(a) default in the payment of the principal of and premium, if
any, on any of the Notes as and when the same shall become due and
payable either at maturity or in
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connection with any redemption, upon acceleration or otherwise, whether
or not such payment is prohibited by the provisions of Article 4
hereof; or
(b) default for thirty (30) days in the payment of any
installment of interest upon any of the Notes as and when the same
shall become due and payable, whether or not such payment is prohibited
by the provisions of Article 4 hereof; or
(c) failure on the part of the Company, within 5 days of the
satisfaction of the requirements for conversion set forth in Section
15.2 hereof with respect to any Note, to deliver shares of its common
stock, including Cash for fractional shares, to the holder of such
Note; or
(d) failure on the part of the Company duly to observe or
perform any other of the covenants on the part of the Company in the
Notes or in this Indenture (other than a covenant a default in whose
performance or whose breach is elsewhere in this Section 7.1
specifically dealt with) and the continuance of such failure for a
period of forty-five (45) days after the date on which written notice
of such failure, requiring the Company to remedy the same, shall have
been given to the Company by the Trustee, or to the Company and a
Responsible Officer of the Trustee by the holders of at least 25% in
aggregate principal amount of the outstanding Notes at the time
outstanding determined in accordance with Section 9.4 hereof; or
(e) a default in the payment of the Repurchase Price in
respect of any Note on the Repurchase Date therefor in accordance with
the provisions of Article 16 hereof, whether or not such payment in
Cash of the Repurchase Price is prohibited by the provisions of Article
4 hereof; or
(f) failure on the part of the Company to provide a written
notice of a Repurchase Event in accordance with Section 16.2 hereof; or
(g) failure on the part of the Company or any Significant
Subsidiary to make any payment at maturity, including any applicable
grace period, in respect of any Indebtedness of, or guaranteed or
assumed by, the Company or any Significant Subsidiary, in an aggregate
principal amount then outstanding in excess of U.S. $5,000,000, and the
continuance of such failure for a period of thirty (30) days after
there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the holders
of not less than 25% in aggregate principal amount of the Notes then
outstanding, a written notice specifying such default and requiring the
Company to cause such default to be cured or waived and stating that
such notice is a "Notice of Default" hereunder; or
(h) default on the part of the Company or any Significant
Subsidiary with respect to any Indebtedness of, or guaranteed or
assumed by, the Company or any Significant Subsidiary, which default
results in the acceleration of Indebtedness in an aggregate principal
amount then outstanding in excess of U.S. $5,000,000, and such
Indebtedness shall not have been discharged or such acceleration shall
not have been rescinded or
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annulled for a period of thirty (30) days after there shall have been
given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the holders of not less than 25%
in aggregate principal amount of the Notes then outstanding, a written
notice specifying such default and requiring the Company to cause such
Indebtedness to be discharged or cause such default to be cured or
waived or such acceleration to be rescinded or annulled and stating
that such notice is a "Notice of Default" hereunder; or
(i) the Company or any Significant Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment
of or taking possession by any such official in an involuntary case or
other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due; or
(j) an involuntary case or other proceeding shall be commenced
against the Company or any Significant Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of sixty (60) consecutive
days; or
(k) a default occurs under any of the Security Documents, or
the Liens created by the Security Documents shall at any time not
constitute valid and perfected Liens on the Collateral intended to be
covered thereby (to the extent perfection by filing, registration,
recordation or possession is required herein or therein) in favor of
the Collateral Agent, free and clear of all other Liens (other than
Liens permitted by this Indenture), or, except for expiration in
accordance with its terms or amendment, modification, waiver,
termination or release in accordance with the terms of this Indenture,
any of the Security Documents shall for whatever reason be terminated
or cease to be in full force and effect, if in either case, such
default continues for 15 days after (i) written notice to the Company
by the Trustee or to the Company and the Trustee by Holders of at least
25% in aggregate principal amount of outstanding Notes, or (ii) the
enforceability thereof shall be contested by the Company or any
Subsidiary Guarantor; or
(l) subject in all cases to the terms of the Intercreditor
Agreement, failure of the Company to make, when due, any transfer,
delivery, pledge, assignment or grant of Collateral required to be made
by it and such failure continues unremedied for 10 Business Days after
notice of such failure is given to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the outstanding Notes; or
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(m) except as permitted by this Indenture, any Subsidiary
Guarantee is held in any judicial proceeding to be unenforceable or
invalid in any material respect or shall cease for any reason to be in
full force and effect or any Subsidiary Guarantor, or any Person acting
on behalf of any Subsidiary Guarantor, shall deny or disaffirm its
obligations under its Subsidiary Guarantee.
In case the Trustee shall have proceeded to enforce any right under
this Indenture, the Subsidiary Guarantees or the Security Documents and such
proceedings shall have been discontinued or abandoned because of such waiver or
rescission and annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company, the
Subsidiary Guarantors, the holders of Notes, and the Trustee shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the Subsidiary Guarantors, the holders of
Notes, and the Trustee shall continue as though no such proceeding had been
instituted.
The Company shall deliver to the Trustee, within 5 Business Days after
becoming aware of the occurrence thereof, written notice in the form of an
Officers' Certificate of any Event of Default and any event which with the
giving of notice or the lapse of time would become an Event of Default, its
status and what action the Company is taking or proposes to take with respect
thereto.
SECTION 7.2. ACCELERATION. If an Event of Default (other than an Event
of Default specified in Section 7.1(i) or (j) hereof with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% of the principal amount of the Notes then outstanding,
by written notice to the Company (and to the Trustee if such notice is given by
such Holders), may, and the Trustee at the request of such Holders shall,
declare all unpaid principal of, premium, if any, and accrued interest on, such
Notes to be due and payable immediately. Upon a declaration of acceleration,
such principal and accrued interest shall be due and payable. If an Event of
Default specified in Section 7.1(i) or (j) hereof with respect to the Company
occurs, all unpaid principal of, premium, if any, and accrued interest on the
Notes then outstanding shall IPSO FACTO become and be immediately due and
payable without any declaration or other act on the part of the Company, the
Trustee or any Holder. In the event of a declaration of acceleration because an
Event or Default set forth in clause Section 7.1(g) hereof has occurred and is
continuing, such declaration of acceleration shall be automatically rescinded
and annulled if the event of default triggering such Event of Default pursuant
to Section 7.1(g) hereof shall be remedied or cured or waived by the holders of
the relevant Indebtedness within 30 days after such event of default; PROVIDED,
that no judgment or decree for the payment of the money due on Notes has been
obtained by the Trustee as provided in this Indenture. The Holders of a majority
of the aggregate principal amount of the Notes outstanding by notice to the
Trustee may rescind an acceleration and its consequences if the rescission would
not conflict with any judgment or decree and if all existing Events of Default
have been cured or waived except nonpayment of principal or interest (including
Default Interest) that has become due solely because of acceleration. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto.
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SECTION 7.3. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of, premium, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes, this Indenture or the Security
Documents.
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 Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 7.4. PROCEEDINGS BY NOTEHOLDER. Subject to Section 7.7 hereof,
the Holders of a majority in aggregate principal amount of the outstanding Notes
by notice to the Trustee may waive an existing Default or Event of Default and
its consequences, except (i) a Default in the payment of the principal of or
premium, if any, interest on a Note or (ii) a Default in respect of a provision
that under Section 11.2 hereof cannot be amended without the consent of each
Noteholder affected. When a Default or Event of Default is waived, it is cured
and ceases to exist, but no waiver shall extend to any subsequent or other
Default or impair any consequent right.
SECTION 7.5. CONTROL BY MAJORITY. The Holders of a majority in
principal amount of the Notes may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 8.1 hereof, that the Trustee determines is unduly prejudicial
to the rights of other Noteholders or would involve the Trustee in personal
liability; PROVIDED, HOWEVER, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to indemnification by
the Noteholders satisfactory to it in its sole discretion against all losses and
expenses caused by taking or not taking such action.
SECTION 7.6. LIMITATION ON SUITS. Except to enforce the right to
receive payment of principal or interest when due, no Noteholder may pursue any
remedy with respect to this Indenture or the Notes unless:
(1) the Holder gives to the Trustee written notice
stating that an Event of Default is continuing;
(2) the Holders of at least 25% in principal amount
of the Notes outstanding make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders offer to the Trustee
security or indemnity reasonably satisfactory to the Trustee
against any loss, liability or expense;
(4) the Trustee does not comply with the request
within 30 days after receipt thereof and the offer of security
or indemnity; and
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(5) during such 30-day period the Holders of a
majority of the aggregate principal amount of the outstanding
Notes do not give the Trustee a direction which is
inconsistent with the request.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over another
Noteholder.
SECTION 7.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of, premium, if any, and interest on the Notes held by such Holder, on
or after the respective due dates expressed in the Notes, or to bring suit for
the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder, except that no
Holder shall have the right to institute any such suit, if and to the extent
that the institution or prosecution thereof or the entry of judgment therein
would under applicable law result in the surrender, impairment, waiver, or loss
of the Liens of the Security Documents upon any property or assets subject to
the Liens.
SECTION 7.8. COLLECTION SUIT BY TRUSTEE. If an Event of Default
specified in Section 7.1(a) or (b) hereof occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Company for the whole amount then due and owing (together with interest on
any unpaid interest to the extent lawful) and the amounts provided for in
Section 8.6 hereof.
SECTION 7.9. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Noteholders allowed
in any judicial proceedings relative to the Company, any Subsidiary, their
creditors or their property and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and may become a
member, voting or nonvoting, of any committee of creditors appointed in any such
judicial proceedings. Any custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 8.6 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 8.6 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.
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SECTION 7.10. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder of any Note to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article 7 or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 7.11. PRIORITIES. If the Trustee collects any money or property
pursuant to this Article 7, it shall pay out the money or property in the
following order:
FIRST: to the Trustee for amounts due under Section 8.6
hereof;
SECOND: to Noteholders for amounts due and unpaid on the Notes
for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Notes for principal, premium, if any,
and interest, respectively; and
THIRD: to the Company or the Subsidiary Guarantors 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
Noteholders pursuant to this Section 7.11. At least 15 days before such record
date, the Trustee shall mail to each Holder and the Company a notice that states
the record date, the payment date and amount to be paid.
SECTION 7.12. UNDERTAKING FOR COSTS. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant 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 7.12 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 7.4 hereof or a suit by Holders
of more than 10% in principal amount of the Notes.
SECTION 7.13. ENFORCEMENT BY TRUSTEE. All rights of action and of
asserting claims under this Indenture, or under any of the Notes, may be
enforced by the Trustee without the possession of any of the Notes, or the
production thereof on any trial or other proceeding relative thereto, and any
such suit or proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the holders of the Notes.
SECTION 7.14. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture, the Subsidiary Guarantees or the Security Documents and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder,
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then and in every such case, subject to any determination in such proceeding,
the Company, the Subsidiary Guarantors, the Trustee and the Holders shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 7.15. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided in the last paragraph of Section 2.6 hereof with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
ARTICLE 8.
CONCERNING THE TRUSTEE
SECTION 8.1. DUTIES AND RESPONSIBILITIES OF TRUSTEE. The Trustee, prior
to the occurrence of an Event of Default and after the curing or waiver of all
Events of Default which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture. In case an
Event of Default has occurred (which has not been cured or waived) the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default and after
the curing or waiving of all Events of Default which may have occurred:
(1) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Indenture and, after it has been qualified thereunder, the
Trust Indenture Act, and the Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture and
the Trust Indenture Act against the Trustee; and
(2) in the absence of bad faith and willful
misconduct on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but, in the
case of any such certificates or opinions which by any
provisions hereof are specifically required to be furnished to
the Trustee, the
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Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Officers of the Trustee,
unless it shall be provided that the Trustee was negligent in
ascertaining the pertinent facts;
(c) the Trustee shall not be liable to any Noteholder with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the holders of not less than a
majority in principal amount of the Notes at the time outstanding
determined as provided in Section 9.4 hereof relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture; and
(d) whether or not therein provided, every provision of this
Indenture relating to the conduct or affecting the liability of, or
affording protection to, the Trustee shall be subject to the provisions
of this Section 8.1.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
SECTION 8.2. RELIANCE ON DOCUMENTS, OPINIONS, ETC. Except as otherwise
provided in Section 8.1 hereof:
(a) the Trustee may rely and shall be protected in acting upon
any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, note, coupon or other paper or
document believed by it in good faith to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its selection and
any advice of such counsel or Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Noteholders pursuant to the provisions
of this Indenture, unless such Noteholders shall have offered to
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the Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney; PROVIDED, HOWEVER, that if
the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require indemnity reasonably
satisfactory to the Trustee from the Noteholders against such expenses
or liability as a condition to so proceeding; the reasonable expenses
of every such examination shall be paid by the Company or, if paid by
the Trustee or any predecessor Trustee, shall be repaid by the Company
upon demand;
(f) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed by it with due care hereunder;
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture;
(i) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture; (j) the rights, privileges, protections,
immunities and benefits given to the Trustee, including, without
limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and
each agent, custodian and other Person employed to act hereunder; and
(k) the Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be signed
by any person authorized to sign an Officers' Certificate, including
any person specified as so authorized in any such certificate
previously delivered and not superseded.
In no event shall the Trustee be liable for any consequential loss or damage of
any kind whatsoever (including but not limited to lost profits), even if the
Trustee has been advised of the
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likelihood of such loss or damage and regardless of the form of action other
than through the Trustee's willful misconduct or gross negligence.
SECTION 8.3. NO RESPONSIBILITY FOR RECITALS, ETC. The recitals
contained herein and in the Notes (except in the Trustee's certificate of
authentication) shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Company of any Notes or the proceeds of any Notes authenticated and delivered by
the Trustee in conformity with the provisions of this Indenture.
SECTION 8.4. TRUSTEE, PAYING AGENTS, CONVERSION AGENTS OR REGISTRAR MAY
OWN NOTES. The Trustee, any paying agent, any conversion agent or Note
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Notes with the same rights it would have if it were not Trustee,
paying agent, conversion agent or Note Registrar.
SECTION 8.5. MONIES TO BE HELD IN TRUST. Subject to the provisions of
Section 13.4 hereof, all monies received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as may be agreed from time to time in writing by the Company and the
Trustee.
SECTION 8.6. COMPENSATION AND EXPENSES OF TRUSTEE. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation for all services rendered by it
hereunder in any capacity as shall be agreed in writing between the Company and
the Trustee (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the Company will pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances reasonably incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence, willful misconduct or
bad faith. The Company also covenants to indemnify the Trustee in any capacity
under this Indenture and its agents and any authenticating agent for, and to
hold them harmless against, any and all loss, liability, damage, claim or
expense, including taxes (other than those based upon, measured by or determined
by the income of the Trustee), incurred without negligence, willful misconduct
or bad faith on the part of the Trustee or such agent or authenticating agent,
as the case may be, and arising out of or in connection with the acceptance or
administration of this trust or in any other capacity hereunder, including the
costs and expenses of defending themselves against any claim of liability
(whether asserted by the Company, any Holder or any other Person) in the
premises. The obligations of the Company under this Section 8.6 to compensate or
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall be secured by a lien prior to that of the Notes
upon all property and funds held or collected by the Trustee as
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such, except, subject to the effect of Section 7.6 hereof, funds held in trust
herewith for the benefit of the holders of particular Notes prior to the date of
the accrual of such unpaid compensation or indemnifiable claim. The obligation
of the Company under this Section 8.6 shall survive the satisfaction and
discharge of this Indenture and the resignation or removal of the Trustee. The
indemnification provided in this Section 8.6 shall extend to the officers,
directors, agents and employees of the Trustee.
When the Trustee and its agents and any authenticating agent incur
expenses or render services after an Event of Default specified in Section
7.1(j) or (k) hereof occurs, the expenses and the compensation for the services
are intended to constitute expenses of administration under any bankruptcy,
insolvency or similar laws.
SECTION 8.7. OFFICERS' CERTIFICATE AS EVIDENCE. Except as otherwise
provided in Section 8.1 hereof, whenever in the administration of the provisions
of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence, willful misconduct, recklessness
and bad faith on the part of the Trustee, be deemed to be conclusively proved
and established by an Officers' Certificate delivered to the Trustee, and such
Officers' Certificate, in the absence of negligence, willful misconduct,
recklessness and bad faith on the part of the Trustee, shall be full warrant to
the Trustee for any action taken or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 8.8. CONFLICTING INTERESTS OF TRUSTEE. If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture.
SECTION 8.9. ELIGIBILITY OF TRUSTEE. There shall at all times be a
Trustee hereunder which shall be a person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus (together
with its corporate parent) of at least $50,000,000. If such person publishes
reports of condition at least annually, pursuant to law or to the requirements
of any supervising or examining authority, then for the purposes of this Section
8.9, the combined capital and surplus of such person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 8.9, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article 8.
SECTION 8.10. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) The Trustee may at any time resign by giving written
notice of such resignation to the Company and by mailing notice thereof
to the holders of Notes at their addresses as they shall appear on the
Note Register. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of
which instrument shall be delivered to the resigning Trustee and one
copy to the successor
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trustee. If no successor trustee shall have been so appointed and have
accepted appointment sixty (60) days after the mailing of such notice
of resignation to the Noteholders, the resigning Trustee may petition
any court of competent jurisdiction at the expense of the Company for
the appointment of a successor trustee, or any Noteholder who has been
a bona fide holder of a Note or Notes for at least six months may,
subject to the provisions of Section 7.9 hereof, on behalf of himself
and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with Section 8.8
hereof within a reasonable time after written request therefor
by the Company or by any Noteholder who has been a bona fide
holder of a Note or Notes for at least six months, or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.9 hereof and shall
fail to resign after written request therefor by the Company
or by any such Noteholder, or
(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, the Company may by a Board resolution remove
the Trustee and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of
which instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee, or, subject to the provisions of Section
7.9 hereof, any Noteholder who has been a bona fide holder of a Note or
Notes for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor
trustee. If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within sixty (60) days after the
giving of such notice of removal, the Trustee being removed may
petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Trustee with respect to
the Securities of such series.
(c) The holders of a majority in aggregate principal amount of
the Notes at the time outstanding may at any time remove the Trustee
and nominate a successor trustee which shall be deemed appointed as
successor trustee unless within ten (10) days after notice to the
Company of such nomination the Company objects thereto, in which case
the Trustee so removed or any Noteholder, upon the terms and conditions
and otherwise
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as in Section 8.10(a) hereof provided, may petition any court of
competent jurisdiction for an appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this
Section 8.10 shall become effective upon acceptance of appointment by
the successor trustee as provided in Section 8.11 hereof.
SECTION 8.11. ACCEPTANCE BY SUCCESSOR TRUSTEE. Any successor trustee
appointed as provided in Section 8.10 hereof shall execute, acknowledge and
deliver to the Company and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written request
of the Company or of the successor trustee, the trustee ceasing to act shall,
upon payment of any amounts then due it pursuant to the provisions of Section
8.6 hereof, execute and deliver an instrument transferring to such successor
trustee all the rights and powers of the trustee so ceasing to act. Upon request
of any such successor trustee, the Company shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property and funds held or collected by
such trustee as such, except for funds held in trust for the benefit of holders
of particular Notes, to secure any amounts then due it pursuant to the
provisions of Section 8.6 hereof.
No successor trustee shall accept appointment as provided in this
Section 8.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 8.8 hereof and be eligible under
the provisions of Section 8.9 hereof.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.11, each of the Company and the former trustee shall mail or
cause to be mailed notice of the succession of such trustee hereunder to the
holders of Notes at their addresses as they shall appear on the Note Register.
If the Company fails to mail such notice within ten (10) days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Company.
SECTION 8.12. SUCCESSION BY MERGER, ETC. Any corporation or other
entity into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation or other
entity succeeding to all or substantially all of the corporate trust business of
the Trustee, shall be the successor to the Trustee hereunder without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, PROVIDED, that in the case of any corporation succeeding to all
or substantially all of the corporate trust business of the Trustee such
corporation shall be qualified under the provisions of Section 8.8 hereof and
eligible under the provisions of Section 8.9 hereof.
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In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture, any of the Notes shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee or authenticating agent appointed
by such predecessor trustee, and deliver such Notes so authenticated; and in
case at that time any of the Notes shall not have been authenticated, any
successor to the Trustee or an authenticating agent appointed by such successor
trustee may authenticate such Notes either in the name of any predecessor
trustee hereunder or in the name of the successor trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or
in this Indenture PROVIDED, that the certificate of the Trustee shall have;
PROVIDED, HOWEVER, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 8.13. LIMITATION ON RIGHTS OF TRUSTEE AS CREDITOR. If and when
the Trustee shall be or become a creditor of the Company (or any other obligor
upon the Notes), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of the claims against the Company (or any
such other obligor).
ARTICLE 9.
CONCERNING THE NOTEHOLDERS
SECTION 9.1. ACTION BY NOTEHOLDERS. Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate principal
amount of the Notes may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action, the holders of
such specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by Noteholders
in person or by agent or proxy appointed in writing, or (b) by the record of the
holders of Notes voting in favor thereof at any meeting of Noteholders duly
called and held in accordance with the provisions of Article 10 hereof, or (c)
by a combination of such instrument or instruments and any such record of such a
meeting of Noteholders. Whenever the Company or the Trustee solicits the taking
of any action by the holders of the Notes, the Company or the Trustee may fix in
advance of such solicitation, a date as the record date for determining holders
entitled to take such action. The record date shall be not more than fifteen
(15) days prior to the date of commencement of solicitation of such action.
SECTION 9.2. PROOF OF EXECUTION BY NOTEHOLDERS. Subject to the
provisions of Sections 8.1, 8.2 and 10.5 hereof, proof of the execution of any
instrument by a Noteholder or his agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Notes shall be proved by the Note Register or by a certificate of the
Note Registrar. The record of any Noteholders' meeting shall be proved in the
manner provided in Section 10.6 hereof.
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SECTION 9.3. WHO ARE DEEMED ABSOLUTE OWNERS. The Company, the Trustee,
any authenticating agent, any paying agent, any conversion agent and any Note
Registrar may deem the person in whose name such Note shall be registered upon
the Note Register to be, and may treat him as, the absolute owner of such Note
(whether or not such Note shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the principal of, premium, if any, and interest on such Note, for
conversion of such Note and for all other purposes; and neither the Company nor
the Trustee nor any paying agent nor any conversion agent nor any Note Registrar
shall be affected by any notice to the contrary. All such payments so made to
any holder for the time being, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for monies payable upon any such Note.
SECTION 9.4. COMPANY-OWNED NOTES DISREGARDED. In determining whether
the holders of the requisite aggregate principal amount of Notes have concurred
in any direction, consent, waiver or other action under this Indenture, Notes
which are owned by the Company or any other obligor on the Notes or by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Notes shall
be disregarded and deemed not to be outstanding for the purpose of any such
determination; PROVIDED, that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, consent, waiver or
other action only Notes which a Responsible Officer knows are so owned shall be
so disregarded. Notes so owned which have been pledged in good faith may be
regarded as outstanding for the purposes of this Section 9.4 if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's right to vote
such Notes and that the pledgee is not the Company, any other obligor on the
Notes or a person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any such other obligor. In
the case of a dispute as to such right, any decision by the Trustee taken upon
the advice of counsel shall be full protection to the Trustee. Upon request of
the Trustee, the Company shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Notes, if any, known by the Company to
be owned or held by or for the account of any of the above described persons;
and, subject to Section 8.1 hereof, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Notes not listed therein are outstanding for the purpose of
any such determination.
SECTION 9.5. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
9.1 hereof, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Notes specified in this Indenture in
connection with such action, any holder of a Note which is shown by the evidence
to be included in the Notes the holders of which have consented to such action
may, by filing written notice with the Trustee at its Corporate Trust Office and
upon proof of holding as provided in Section 9.2 hereof, revoke such action so
far as concerns such Note. Except as aforesaid, any such action taken by the
holder of any Note shall be conclusive and binding upon such holder and upon all
future holders and owners of such Note and of any Notes issued in exchange or
substitution therefor, irrespective of whether any notation in regard thereto is
made upon such Note or any Note issued in exchange or substitution therefor.
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ARTICLE 10.
NOTEHOLDERS' MEETINGS
SECTION 10.1. PURPOSE OF MEETINGS. A meeting of Noteholders may be
called at any time and from time to time pursuant to the provisions of this
Article 10 for any of the following purposes:
(a) to give any notice to the Company or to the Trustee or to
give any directions to the Trustee permitted under this Indenture, or
to consent to the waiving of any default or Event of Default hereunder
and its consequences, or to take any other action authorized to be
taken by Noteholders pursuant to any of the provisions of Article 7
hereof;
(b) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article 8 hereof;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.2 hereof;
(d) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount of
the Notes under any other provision of this Indenture or under
applicable law; or
(e) to take any other action authorized by this Indenture or
under applicable law.
SECTION 10.2. CALL OF MEETINGS BY TRUSTEE. The Trustee may at any time
call a meeting of Noteholders to take any action specified in Section 10.1
hereof, to be held at such time and at such place in the Borough of Manhattan,
The City of New York, as the Trustee shall determine. Notice of every meeting of
the Noteholders, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting and the
establishment of any record date pursuant to Section 9.1 hereof, shall be mailed
to holders of Notes at their addresses as they shall appear on the Note
Register. Such notice shall also be mailed to the Company. Such notices shall be
mailed not less than twenty (20) nor more than ninety (90) days prior to the
date fixed for the meeting.
Any meeting of Noteholders shall be valid without notice if the holders
of all Notes then outstanding are present in person or by proxy or if notice is
waived before or after the meeting by the holders of all Notes outstanding, and
if the Company and the Trustee are either present by duly authorized
representatives or have, before or after the meeting, waived notice.
SECTION 10.3. QUORUM. The persons entitled to vote a majority in
principal amount of the outstanding Notes shall constitute a quorum. In the
absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Noteholders of Notes,
be dissolved. In any other case, the meeting may be adjourned for a period of
not less than 10 days as determined by the chairman of the meeting prior to the
adjournment
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of such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting (subject to repeated applications of this sentence). Notice of
the reconvening of any adjourned meeting shall be given as provided in Section
10.2 hereof except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage of the principal amount of the outstanding Notes which shall
constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned
for a lack of a quorum, the Persons entitled to vote 25% in principal amount of
the outstanding Notes at the time shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting.
At a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid, any resolution and all matters (except as
limited by the proviso to Section 11.2 hereof and except to the extent Section
7.7 hereof requires a different vote) shall be effectively passed and decided if
passed or decided by the lesser of (i) the holders of not less than a majority
in principal amount of outstanding Notes and (ii) the persons entitled to vote
not less than 66-2/3% in principal amount of outstanding Notes represented and
entitled to vote at such meeting.
Any resolution passed or decisions taken at any meeting of holders of
Notes duly held in accordance with this Section 10.3 shall be binding on all the
holders of Notes whether or not present or represented at the meeting. The
Trustee shall, in the name and at the expense of the Company, notify all the
holders of Notes of any such resolutions or decisions.
SECTION 10.4. CALL OF MEETINGS BY COMPANY OR NOTEHOLDERS. In case at
any time the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least 10% in aggregate principal amount of the Notes then
outstanding, shall have requested the Trustee to call a meeting of Noteholders,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed the notice of such
meeting within twenty (20) days after receipt of such request, then the Company
or such Noteholders may determine the time and the place for such meeting and
may call such meeting to take any action authorized in Section 10.1 hereof by
mailing notice thereof as provided in Section 10.2 hereof.
SECTION 10.5. QUALIFICATIONS FOR VOTING. To be entitled to vote at any
meeting of Noteholders a person shall (a) be a holder of one or more Notes on
the record date pertaining to such meeting or (b) be a person appointed by an
instrument in writing as proxy by a holder of one or more Notes. The only
persons who shall be entitled to be present or to speak at any meeting of
Noteholders shall be the persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 10.6. REGULATIONS. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any
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meeting of Noteholders, in regard to proof of the holding of Notes and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Noteholders as provided in Section 10.4 hereof, in which case the
Company or the Noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount of the Notes represented at the meeting and entitled to vote
at the meeting.
Subject to the provisions of Section 9.4 hereof, at any meeting each
Noteholder or proxyholder shall be entitled to one vote for each $1,000
principal amount of Notes held or represented by him; PROVIDED, HOWEVER, that no
vote shall be cast or counted at any meeting in respect of any Note challenged
as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Notes held by him or instruments in writing as aforesaid duly
designating him as the proxy to vote on behalf of other Noteholders. Any meeting
of Noteholders duly called pursuant to the provisions of Sections 10.2 or 10.4
hereof may be adjourned from time to time by the holders of a majority of the
aggregate principal amount of Notes represented at the meeting, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
SECTION 10.7. VOTING. The vote upon any resolution submitted to any
meeting of Noteholders shall be by written ballot on which shall be subscribed
the signatures of the holders of Notes or of their representatives by proxy and
the principal amount of the Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Noteholders shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was mailed as provided in
Section 10.2 hereof. The record shall show the principal amount of the Notes
voting in favor of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
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SECTION 10.8. NO DELAY OF RIGHTS BY MEETING. Nothing in this Article 10
contained shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Noteholders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of any right
or rights conferred upon or reserved to the Trustee or to the Noteholders under
any of the provisions of this Indenture or of the Notes.
ARTICLE 11.
SUPPLEMENTAL INDENTURES
SECTION 11.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
The Company, when authorized by the resolutions of the Board of Directors, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to make provision with respect to the conversion rights of
the holders of Notes pursuant to the requirements of Section 15.6
hereof;
(b) subject to Article 4 hereof, to convey, transfer, assign,
mortgage or pledge to the Trustee as security for the Notes, any
property or assets;
(c) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article 12 hereof;
(d) to add to the covenants of the Company such further
covenants, restrictions or conditions for the benefit of the holders of
Notes, and to make the occurrence, or the occurrence and continuance,
of a default in any such additional covenants, restrictions or
conditions a default or an Event of Default permitting the enforcement
of all or any of the several remedies provided in this Indenture as
herein set forth; PROVIDED, HOWEVER, that in respect of any such
additional covenant, restriction or condition such supplemental
indenture may provide for a particular period of grace after default
(which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such
default or may limit the remedies available to the Trustee upon such
default;
(e) to provide for the issuance under this Indenture of Notes
in coupon form (including Notes registrable as to principal only) and
to provide for exchangeability of such Notes with the Notes issued
hereunder in fully registered form and to make all appropriate changes
for such purpose;
(f) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make such other provisions in
regard to matters or questions arising under this Indenture which shall
not materially adversely affect the interests of the holders of the
Notes;
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(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes;
(h) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualifications of this Indenture under the Trust Indenture Act, or
under any similar federal statute hereafter enacted;
(i) to evidence the succession of another Person to the
Company or a Subsidiary Guarantor and the assumption by any such
successor of the covenants of the Company herein and in the Notes, the
Security Documents and the Collateral Agency Agreement and of such
Subsidiary Guarantor contained herein and in the Security Documents; or
(j) to mortgage, pledge, hypothecate or xxxxx x Xxxx in favor
of the Collateral Agent for the benefit of Trustee and the Holders of
the Notes as additional security for the payment of principal of and
interest on the Notes by the Company or on the Subsidiary Guarantees by
the Subsidiary Guarantors under this Indenture in any property or
assets, including any which are required to be mortgaged, pledged or
hypothecated, or in which a Lien is required to be granted to the
Collateral Agent, pursuant to this Indenture or the Security Documents.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the Trustee
shall not be obligated to, but may in its discretion, enter into any
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
11.1 may be executed by the Company and the Trustee without the consent of the
holders of any of the Notes at the time outstanding, notwithstanding any of the
provisions of Section 11.2 hereof.
SECTION 11.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS. With
the consent (evidenced as provided in Article 9 hereof) of the holders of not
less than a majority in aggregate principal amount of the Notes at the time
outstanding (determined in accordance with Section 9.4 hereof), the Company,
when authorized by the resolutions of the Board of Directors, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or any
supplemental indenture or of modifying in any manner the rights of the holders
of the Notes; PROVIDED, HOWEVER, that no such supplemental indenture shall,
without the consent of the holders of all Notes then outstanding:
(a) extend the fixed maturity of any Note, or
(b) reduce the rate or extend the time of payment of interest
on any Note, or
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(c) reduce the principal amount thereof or premium, if any, on
any Note, or
(d) reduce any amount payable on redemption or repurchase of
any Note, or
(e) impair, or change in any respect adverse to the holder of
Notes, the obligation of the Company to repurchase any Note at the
option of the holder upon the happening of a Repurchase Event, or
(f) impair or adversely affect the right of any Noteholder to
institute suit for the payment of his Note, or
(g) change the place where, or currency in which, the Notes
are payable, or
(h) impair or change in any respect adverse to the Noteholders
the right to convert the Notes into Common Stock subject to the terms
set forth herein, including Section 15.6 hereof, or
(i) modify the provisions of this Indenture with respect to
the subordination of the Notes in a manner adverse to the Noteholders,
without the consent of the holder of each Note so affected,
(j) reduce the requirements of Section 10.3 hereof for quorum
or voting or the percentage in principal amount of the outstanding
Notes of any series, the consent of whose holders is required for any
such supplemental indenture, or the consent of whose holder is required
for any waiver with respect to such series (or compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(k) modify any of the provisions of this Section 11.2 or
Section 7.7 hereof, except to increase the required percentage to
effect such action or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
holder of each outstanding Note affected thereby.
Upon the request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Noteholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in is discretion, but shall not be obligated to, enter into
such supplemental indenture.
It shall not be necessary for the consent of the Noteholders under this
Section 11.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
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SECTION 11.3. EFFECT OF SUPPLEMENTAL INDENTURES. Any supplemental
indenture executed pursuant to the provisions of this Article 11 shall comply
with the Trust Indenture Act, as then in effect. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article 11, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitation of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders
of Notes shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 11.4. NOTATION ON NOTES. Notes authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of
this Article 11 may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may, at the Company's expense, be
prepared and executed by the Company, authenticated by the Trustee (or an
authenticating agent duly appointed by the Trustee pursuant to Section 19.10
hereof) and delivered in exchange for the Notes then outstanding, upon surrender
of such Notes then outstanding.
SECTION 11.5. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE
FURNISHED TRUSTEE. The Trustee, subject to the provisions of Sections 8.1 and
8.2 hereof, shall receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article 11.
ARTICLE 12.
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 12.1. COMPANY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) The Company shall not, directly or indirectly, consolidate
with or merge with or into any other Person or sell, lease, convey or
transfer all its properties and assets substantially as an entirety,
whether in a single transaction or a series of related transactions, to
any Person or group of affiliated Persons unless:
(i) either (A) in the case of a merger or
consolidation that does not involve a transfer of all or
substantially all of the Company's properties and assets, the
Company is the surviving entity or (B) in case the Company
shall consolidate with or merge into another Person or sell,
lease, convey or transfer all its properties and assets
substantially as an entirety, whether in a single transaction
or a series of related transactions, to any Person, the Person
formed by such consolidation or into which the Company is
merged, or the Person which acquires by sale, conveyance or
transfer, or which leases the properties and assets of the
Company substantially as an entirety, shall be a corporation,
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limited liability company, partnership or trust, shall be
organized and validly existing under the laws of the United
States of America, any state thereof or the District of
Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment
of the principal of, premium, if any, and interest on all of
the Notes as applicable, and the performance or observance of
every covenant of this Indenture on the part of the Company to
be performed or observed by the Company and shall have
provided for the applicable conversion rights set forth in
Section 15.6 hereof and the repurchase rights set forth in
Article 16 hereof;
(ii) immediately after giving effect to such
transaction, no Event of Default, and no event that after
notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing;
(iii) the Company has delivered to the Trustee an
Officers Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture comply with
this Article 12 and that all conditions precedent herein
provided for relating to such transaction have been complied
with, together with any documents required under Article 9
hereof; and
(iv) except in the case of a merger or consolidation
of the Company with or into a Wholly Owned Restricted
Subsidiary of the Company, the Company or the entity or Person
formed by or surviving any such consolidation or merger (if
other than the Company), or to which such sale, assignment,
transfer, conveyance or other disposition shall have been made
shall have Consolidated Net Worth immediately after the
transaction equal to or greater than the Consolidated Net
Worth of the Company immediately preceding the transaction.
(b) Notwithstanding clauses (ii) and (iii) of Section 12.1(a)
hereof, (a) any Restricted Subsidiary may consolidate with, merge into
or transfer all or part of its properties and assets to the Company or
another Restricted Subsidiary and (b) the Company may merge with an
Affiliate incorporated solely for the purpose of reincorporating the
Company in another jurisdiction.
SECTION 12.2. SUCCESSOR CORPORATION TO BE SUBSTITUTED. In case of any
such consolidation, merger, sale, conveyance or lease in accordance with Section
12.1 hereof, and, where required in accordance with Section 12.1(a) hereof upon
the assumption by the successor corporation, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the due
and punctual payment of the principal of and premium, if any, and interest on
all of the Notes and the due and punctual performance of all of the covenants
and conditions of this Indenture to be performed by the Company, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein as the party of the first part. Such
successor corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company any or all of the Notes issuable
hereunder which theretofore shall not have been signed by the Company and
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delivered to the Trustee; and, upon the order of such successor corporation
instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver,
or cause to be authenticated and delivered, any Notes which previously shall
have been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Notes which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the Notes
so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Notes theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Notes had been issued at the date
of the execution hereof. In the event of any such consolidation, merger, sale,
conveyance or lease, the person named as the "Company" in the first paragraph of
this Indenture or any successor which shall thereafter have become such in the
manner prescribed in this Article 12 may be dissolved, wound up and liquidated
at any time thereafter and such person shall be released from its liabilities as
obligor and maker of the Notes and from its obligations under this Indenture.
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form (but not in substance) may be made in the
Notes thereafter to be issued as may be appropriate.
SECTION 12.3. OPINION OF COUNSEL TO BE GIVEN TRUSTEE. The Trustee,
subject to Sections 8.1 and 8.2 hereof, shall receive an Officers' Certificate
and an Opinion of Counsel from the surviving company as conclusive evidence that
any such consolidation, merger, sale, conveyance or lease and any such
assumption complies with the provisions of this Article 12.
ARTICLE 13.
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 13.1. DISCHARGE OF INDENTURE; DEFEASANCE. (a) When (i) the
Company shall deliver to the Trustee for cancellation all Notes theretofore
authenticated (other than any Notes which have been destroyed, lost or stolen
and in lieu of or in substitution for which other Notes shall have been
authenticated and delivered) and not theretofore canceled, or (ii) all the Notes
not theretofore canceled or delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the
Company shall irrevocably deposit with the Trustee, in trust, funds or U.S.
Government Obligations sufficient to pay at maturity or upon redemption of all
of the Notes (other than any Notes which shall have been mutilated, destroyed,
lost or stolen and in lieu of or in substitution for which other Notes shall
have been authenticated and delivered) not theretofore canceled or delivered to
the Trustee for cancellation, including principal and premium, if any, and
interest due or to become due to such date of maturity or redemption date, as
the case may be, and if in either case the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Indenture shall
cease to be of further effect (except as to (A) remaining rights of registration
of transfer, substitution and
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exchange and conversion of Notes, (B) rights hereunder of Noteholders to receive
payments of principal of and premium, if any, and interest on, the Notes and the
other rights, duties and obligations of Noteholders, as beneficiaries hereof
with respect to the amounts, if any, so deposited with the Trustee and (C) the
rights, obligations and immunities of the Trustee hereunder), and the Trustee,
on demand of the Company accompanied by an Officers' Certificate and an Opinion
of Counsel as required by Section 17.5 hereof and at the cost and expense of the
Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture; the Company, however, hereby agreeing to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly
incurred by the Trustee and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with
this Indenture or the Notes.
(b) Subject to Section 13.1(c) hereof, the Company at any time may
terminate (i) all of its obligations under the Notes, this Indenture and the
Security Documents ("Legal Defeasance Option") or (ii) its and the Subsidiary
Guarantors' obligations under the Security Documents (including any Lien created
thereby) and Sections 5.7, 5.10, 5.11, 5.12, 5.13, 5.14, 5.15, 5.16, 5.17, 5.18,
5.19, 5.20, 5.22, 5.23, 6.4, 12.1(a)(iv) and 16.1 hereof and the operation of
Sections 7.1(d), 7.1(e), 7.1(f), 7.1(g), 7.1(h), 7.1(i) (with respect only to
Restricted Subsidiaries of the Company), 7.1(j) (with respect only to Restricted
Subsidiaries of the Company), 7.1(k)(8), 7.1(l) and 7.1(m) ("Covenant Defeasance
Option") hereof. The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its Legal Defeasance Option, payment of the
Notes may not be accelerated because of an Event of Default. If the Company
exercises its Covenant Defeasance Option, payment of the Notes may not be
accelerated because of an Event of Default specified in Sections 7.1(d), 7.1(e),
7.1(f), 7.1(g), 7.1(h), 7.1(i) (with respect only to Restricted Subsidiaries of
the Company), 7.1(j) (with respect only to Restricted Subsidiaries of the
Company), 7.1(k)(8), 7.1(l) and 7.1(m) hereof.
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 8.6 hereof and in this
Article 13 shall survive until the Notes have been paid in full. Thereafter, the
Company's obligations in Sections 8.6, 13.3, 13.4 and 13.6 hereof shall survive.
(d) The Company may exercise its Legal Defeasance Option or its
Covenant Defeasance Option only if:
(1) the Company irrevocably deposits in trust with the
Trustee, for the benefit of the Holders, Cash in U.S. Dollars, U.S.
Government Obligations, or a combination thereof, in such amounts as
shall be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium,
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if any, and interest on the outstanding Notes on the stated maturity of
such principal or installment of interest or upon redemption;
(2) the Company shall have delivered to the Trustee an Opinion
of Counsel stating that the Holders of the outstanding Notes will not
recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance and shall be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such defeasance had not occurred, which such
opinion, in the case of legal defeasance, shall also state that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling to such effect or (B) since the Effective Date
there has been a change in the applicable Federal income tax laws or
regulations to such effect or (C) there exists controlling precedent to
such effect;
(3) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or an
Event of Default resulting from the incurrence of Indebtedness all or a
portion of which will be used to fund such deposit and the granting of
any Lien to secure such Indebtedness);
(4) such defeasance shall not result in a breach or violation
of or constitute a default under any other material agreement or
instrument (other than this Indenture) to which the Company is a party
or by which it is bound;
(5) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to such defeasance have been satisfied; and
(6) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
Before or after a deposit, the Company may make arrangements satisfactory to the
Trustee for the redemption of Notes at a future date in accordance with Article
3 hereof.
SECTION 13.2. DEPOSITED MONIES TO BE HELD IN TRUST BY TRUSTEE. Subject
to Section 13.4 hereof, all monies or U.S. Government Obligations deposited with
the Trustee pursuant to Section 13.1 hereof shall be held in trust and all
monies and monies from U.S. Government Obligations shall be applied by it to the
payment, notwithstanding the provisions of Article 4 hereof, either directly or
through any paying agent (including the Company if acting as its own paying
agent), to the holders of the particular Notes for the
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payment or redemption of which such monies have been deposited with the Trustee,
of all sums due and to become due thereon for principal and interest and
premium, if any.
SECTION 13.3. PAYING AGENT TO REPAY MONIES HELD. Upon the satisfaction
and discharge of this Indenture, all monies or U.S. Obligations then held by any
paying agent of the Notes (other than the Trustee) shall, upon demand of the
Company, be repaid to it or paid to the Trustee, and thereupon such paying agent
shall be released from all further liability with respect to such monies.
SECTION 13.4. RETURN OF UNCLAIMED MONIES. Subject to the requirements
of applicable law, any monies deposited with or paid to the Trustee for payment
of the principal of, premium, if any, or interest on Notes and not applied but
remaining unclaimed by the holders of Notes for two years after the date upon
which the principal of, premium, if any, or interest on such Notes, as the case
may be, shall have become due and payable, shall be repaid to the Company by the
Trustee on demand and all liability of the Trustee shall thereupon cease with
respect to such monies; and the holder of any of the Notes shall thereafter look
only to the Company for any payment which such holder may be entitled to collect
unless an applicable abandoned property law designates another person.
SECTION 13.5. REINSTATEMENT. If (i) the Trustee or the paying agent is
unable to apply any money or U.S. Obligations in accordance with Section 13.2
hereof, the Notes, or the Security Documents by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application and (ii) the holders of at least a majority in
principal amount of the then outstanding Notes so request by written notice to
the Trustee, the Company's obligations under this Indenture, the Security
Documents and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 13.1 hereof until such time as the Trustee or the
paying agent is permitted to apply all such money or U.S. Government Obligations
in accordance with Section 13.2 hereof; PROVIDED, HOWEVER, that if the Company
or a Subsidiary Guarantor makes any payment of interest on or principal of any
Note following the reinstatement of its obligations, the Company or such
Subsidiary Guarantor shall be subrogated to the rights of the holders of such
Notes to receive such payment from the money or U.S. Obligations held by the
Trustee or paying agent.
SECTION 13.6. INDEMNITY FOR GOVERNMENT OBLIGATIONS. The Company shall
pay and shall indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against deposited U.S. Government Obligations or the principal
and interest received on such U.S. Government Obligations.
ARTICLE 14.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 14.1. INDENTURE AND NOTES SOLELY CORPORATE OBLIGATIONS. No
recourse for the payment of the principal of or premium, if any, or interest on
any Note, or for any claim based thereon or otherwise in respect thereof, and no
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recourse under or upon any obligation, covenant or agreement of the Company in
this Indenture or in any supplemental indenture or in any Note, or because of
the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, officer or director or subsidiary,
as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Notes.
ARTICLE 15.
CONVERSION OF NOTES
SECTION 15.1. RIGHT TO CONVERT. Subject to and upon compliance with the
provisions of this Indenture, the holder of any Note shall have the right, at
his option, at any time following the date of original issuance of the Notes and
prior to the close of business on June 18, 2007 (except that, with respect to
any Note or portion of a Note which shall be called for redemption, such right
shall terminate, except as provided in Section 3.4 hereof and the fifth
paragraph of Section 15.2 hereof, at the close of business on the Business Day
next preceding the date fixed for redemption or repurchase of such Note or
portion of a Note unless the Company shall default in payment due upon
redemption or repurchase, as applicable, thereof) to convert the principal
amount of any such Note, or any portion of such principal amount which is $1,000
or an integral multiple thereof, into that number of fully paid and
non-assessable shares of Common Stock (as such shares shall then be constituted)
obtained by dividing the principal amount of the Note or portion thereof
surrendered for conversion by the Conversion Price in effect at such time, by
surrender of the Note so to be converted in whole or in part in the manner
provided in Section 15.2 hereof. A holder of Notes is not entitled to any rights
of a holder of Common Stock until such holder has converted his Notes to Common
Stock, and only to the extent such Notes are deemed to have been converted to
Common Stock under this Article 15 hereof. A Note with respect to which a holder
has delivered a notice in accordance with Section 16.2 hereof regarding such
holder's election to require the Company to repurchase such holder's Notes
following the occurrence of a Repurchase Event may be converted in accordance
with this Article 15 only if such holder withdraws such notice by delivering a
written notice of withdrawal to the Company prior to the close of business on
last Business Day prior to the day fixed for repurchase.
SECTION 15.2. EXERCISE OF CONVERSION PRIVILEGE; ISSUANCE OF COMMON
STOCK ON CONVERSION; NO ADJUSTMENT FOR INTEREST OR DIVIDENDS. In order to
exercise the conversion privilege with respect to any Note in definitive form,
the holder of any such Note to be converted in whole or in part shall surrender
such Note, duly endorsed, at an office or agency maintained by the Company
pursuant to Section 5.2 hereof, accompanied by the funds, if any, required by
the penultimate paragraph of this Section 15.2, and shall give written notice of
conversion in the form provided on the Notes (or such other notice which is
acceptable to the Company) to the office or agency that the holder
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elects to convert such Note or such portion thereof specified in said notice.
Such notice shall also state the name or names (with address) in which the
certificate or certificates for shares of Common Stock which shall be issuable
on such conversion shall be issued, and shall be accompanied by transfer taxes,
if required pursuant to Section 15.7 hereof. Each such Note surrendered for
conversion shall, unless the shares issuable on conversion are to be issued in
the same name as the registration of such Note, be duly endorsed by, or be
accompanied by instruments of transfer in form satisfactory to the Company duly
executed by, the holder or his duly authorized attorney.
In order to exercise the conversion privilege with respect to any
interest in the Global Note, the beneficial holder must complete the appropriate
instruction form for conversion pursuant to the Depositary's book-entry
conversion program, deliver by book-entry delivery an interest in the Global
Note, furnish appropriate endorsements and transfer documents if required by the
Company or the Trustee or conversion agent, and pay the funds, if any, required
by the penultimate paragraph of this Section 15.2 and any transfer taxes, if
required pursuant to Section 15.7 hereof.
As promptly as practicable after satisfaction of the requirements for
conversion set forth above, subject to compliance with any restrictions on
transfer if shares issuable on conversion are to be issued in a name other than
that of the Noteholder (as if such transfer were a transfer of the Note or Notes
(or portion thereof) so converted), the Company shall issue and shall deliver to
such holder at the office or agency maintained by the Company for such purpose
pursuant to Section 5.2 hereof, a certificate or certificates for the number of
full shares of Common Stock issuable upon the conversion of such Note or portion
thereof in accordance with the provisions of this Article 15 and a check or Cash
in respect of any fractional interest in respect of a share of Common Stock
arising upon such conversion, as provided in Section 15.3 hereof (which payment,
if any, shall be paid no later than five Business Days after satisfaction of the
requirements for conversion set forth above). In case any Note of a denomination
greater than $1,000 shall be surrendered for partial conversion, and subject to
Section 2.3 hereof, the Company shall execute and the Trustee shall authenticate
and deliver to the holder of the Note so surrendered, without charge to him, a
new Note or Notes in authorized denominations in an aggregate principal amount
equal to the unconverted portion of the surrendered Note.
Each conversion shall be deemed to have been effected as to any such
Note (or portion thereof) on the date on which the requirements set forth above
in this Section 15.2 have been satisfied as to such Note (or portion thereof),
and the person in whose name any certificate or certificates for shares of
Common Stock shall be issuable upon such conversion shall be deemed to have
become on said date the holder of record of the shares represented thereby;
PROVIDED, HOWEVER, that any such surrender on any date when the stock transfer
books of the Company shall be closed shall constitute the person in whose name
the certificates are to be issued as the record holder thereof for all purposes
on the next succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date upon which
such Note shall be surrendered.
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Any Note or portion thereof surrendered for conversion during the
period from the close of business on the record date for any interest payment
date through the opening of business on the Business Day next preceding such
interest payment date shall (unless such Note or portion thereof being converted
shall have been called for redemption pursuant to a redemption notice mailed to
the Noteholders in accordance with Section 3.2 hereof or eligible for repurchase
pursuant to a Company Notice mailed to the Noteholders in accordance with
Section 16.2 hereof) be accompanied by payment, in New York Clearing House funds
or other funds acceptable to the Company, of an amount equal to the interest
otherwise payable on such interest payment date on the principal amount being
converted; PROVIDED, HOWEVER, that no such payment need be made if there shall
exist at the time of conversion a default in the payment of interest on the
Notes. Except as provided above in this Section 15.2, no adjustment shall be
made for interest accrued on any Note converted or for dividends on any shares
issued upon the conversion of such Note as provided in this Article 15.
Upon the conversion of an interest in the Global Note, the Trustee, or
the Custodian at the direction of the Trustee, shall make a notation on the
Global Note as to the reduction in the principal amount represented thereby.
SECTION 15.3. CASH PAYMENTS IN LIEU OF FRACTIONAL SHARES. No fractional
shares of Common Stock or scrip representing fractional shares shall be issued
upon conversion of Notes. If more than one Note shall be surrendered for
conversion at one time by the same holder, the number of full shares which shall
be issuable upon conversion shall be computed on the basis of the aggregate
principal amount of the Notes (or specified portions thereof to the extent
permitted hereby) so surrendered for conversion. If any fractional share of
stock otherwise would be issuable upon the conversion of any Note or Notes, the
Company shall make an adjustment therefor in Cash at the current market value
thereof to the holder of Notes. The current market value of a share of Common
Stock shall be the Closing Price on the first Trading Day immediately preceding
the day on which the Notes (or specified portions thereof) are deemed to have
been converted and such Closing Price shall be determined as provided in Section
15.5(h) hereof.
SECTION 15.4. CONVERSION PRICE. The conversion price shall be as
specified in the form of Note (herein called the "Conversion Price") attached as
EXHIBIT A hereto, subject to adjustment as provided in this Article 15.
SECTION 15.5. ADJUSTMENT OF CONVERSION PRICE. The Conversion Price
shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make
a distribution on any class of capital stock of the Company payable in
shares of Common Stock, the Conversion Price in effect at the opening
of business on the date following the date fixed for the determination
of stockholders entitled to receive such dividend or other distribution
shall be reduced by multiplying such Conversion Price by a fraction of
which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the Record Date (as defined in
Section 15.5(h)(4) hereof) fixed for such
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determination and the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend or
other distribution, such reduction to become effective immediately
after the opening of business on the day following the Record Date. If
any dividend or distribution of the type described in this Section
15.5(a) is declared but not so paid or made, the Conversion Price shall
again be adjusted to the Conversion Price which would then be in effect
if such dividend or distribution had not been declared.
(b) In case the Company shall issue rights, options or
warrants to all holders of its outstanding shares of Common Stock
(other than any rights, options or warrants that by their terms will
also be issued to any Noteholder upon conversion of a Note into Common
Stock without any action required by the Company or any other person)
entitling them to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Market Price (as defined in
Section 15.5(h)(2) hereof) on the Record Date fixed for the
determination of stockholders entitled to receive such rights, options
or warrants, the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in
effect at the opening of business on the date after such Record Date by
a fraction of which the numerator shall be the number of shares of
Common Stock outstanding at the close of business on the Record Date
plus the number of shares which the aggregate offering price of the
total number of shares so offered for subscription or purchase would
purchase at such Current Market Price, and of which the denominator
shall be the number of shares of Common Stock outstanding on the close
of business on the Record Date plus the total number of additional
shares of Common Stock so offered for subscription or purchase. Such
adjustment shall become effective immediately after the opening of
business on the day following the Record Date fixed for determination
of stockholders entitled to receive such rights or warrants. To the
extent that shares of Common Stock are not delivered pursuant to such
rights, options or warrants, upon the expiration or termination of such
rights or warrants the Conversion Price shall be readjusted to the
Conversion Price which would then be in effect had the adjustments made
upon the issuance of such rights or warrants been made on the basis of
delivery of only the number of shares of Common Stock actually
delivered. In the event that such rights or warrants are not so issued,
the Conversion Price shall again be adjusted to be the Conversion Price
which would then be in effect if such date fixed for the determination
of stockholders entitled to receive such rights or warrants had not
been fixed. In determining whether any rights or warrants entitle the
holders to subscribe for or purchase shares of Common Stock at less
than such Current Market Price, and in determining the aggregate
offering price of such shares of Common Stock, there shall be taken
into account any consideration received for such rights or warrants,
the value of such consideration, if other than Cash, to be determined
by the Board of Directors.
Not in limitation of the foregoing, in the event that the Company
implements a stockholder rights plan, such rights plan shall provide that upon
conversion of the Notes the holders will receive, in addition to the Common
Stock issuable upon such conversion, the rights issued under such rights plan
(notwithstanding the occurrence of an event causing such rights to separate from
the Common Stock at or prior to the time of conversion). Any distribution of
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rights, options or warrants pursuant to a stockholder rights plan complying with
the requirements set forth in the immediately preceding sentence of this
paragraph shall not constitute a distribution of rights, options or warrants for
the purposes of this Section 15.5(b).
Rights, options or warrants distributed by the Company to all holders
of Common Stock entitling the holders thereof to subscribe for or purchase
shares of the Company's capital stock (either initially or under certain
circumstances), which rights, options or warrants, until the occurrence of a
specified event or events ("Trigger Event"): (i) are deemed to be transferred
with such shares of Common Stock; (ii) are not exercisable; and (iii) are also
issued in respect of future issuances of Common Stock, shall be deemed not to
have been distributed for purposes of this Section 15.5(b) (and no adjustment to
the Conversion Price under this Section 15.5(b) will be required) until the
occurrence of the earliest Trigger Event. If such right, option or warrant is
subject to subsequent events, upon the occurrence of which such right or warrant
shall become exercisable to purchase different securities, evidences of
indebtedness or other assets or entitle the holder to purchase a different
number or amount of the foregoing or to purchase any of the foregoing at a
different purchase price, then the occurrence of each such event shall be deemed
to be the date of issuance and record date with respect to a new right, option
or warrant (and a termination or expiration of the existing right, option or
warrant without exercise by the holder thereof). In addition, in the event of
any distribution (or deemed distribution) of rights, options or warrants, or any
Trigger Event or other event (of the type described in the preceding sentence)
with respect thereto, that resulted in an adjustment to the Conversion Price
under this Section 15.5(b), (1) in the case of any such rights, options or
warrants which shall all have been redeemed or repurchased without exercise by
any holders thereof, the Conversion Price shall be readjusted upon such final
redemption or repurchase to give effect to such distribution or Trigger Event,
as the case may be, as though it were a Cash distribution, equal to the per
share redemption or repurchase price received by a holder of Common Stock with
respect to such rights or warrants (assuming such holder had retained such
rights, options or warrants), made to all holders of Common Stock as of the date
of such redemption or repurchase, and (2) in the case of such rights, options or
warrants all of which shall have expired or been terminated without exercise,
the Conversion Price shall be readjusted as if such rights and warrants had
never been issued.
(c) In case the outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Conversion Price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall
be proportionately reduced, and conversely, in case outstanding shares
of Common Stock shall be combined into a smaller number of shares of
Common Stock, the Conversion Price in effect at the opening of business
on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or
increase, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(d) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock shares of any class of
capital stock of the Company (other than any
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dividends or distributions to which Section 15.5(a) hereof applies) or
evidences of its indebtedness, Cash or other assets (including
securities, but excluding (1) any rights, options or warrants referred
to in Section 15.5(b) hereof and, (2) dividends and distributions
exclusively in Cash (the foregoing hereinafter in this Section 15.5(d)
called the "Securities")), unless the Company elects to reserve such
Securities for distribution to the Noteholders upon conversion of the
Notes so that any such holder converting Notes will receive upon such
conversion, without any additional action on the part of the Company or
the Noteholder and in addition to the shares of Common Stock to which
such holder is entitled, the amount and kind of such Securities which
such holder would have received if such holder had converted its Notes
into Common Stock immediately prior to the Record Date (as defined in
Section 15.5(h)(4) hereof for such distribution of the Securities)
then, in each such case, the Conversion Price shall be reduced so that
the same shall be equal to the price determined by multiplying the
Conversion Price in effect immediately prior to the close of business
on the Record Date (as defined in Section 15.5(h)(4) hereof) with
respect to such distribution by a fraction of which the numerator shall
be the Current Market Price (determined as provided in Section 15.5(h)
hereof) on such date less the fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and
described in a Board Resolution) on such date of the portion of the
Securities so distributed applicable to one share of Common Stock and
the denominator shall be such Current Market Price, such reduction to
become effective immediately prior to the opening of business on the
day following the Record Date; PROVIDED, HOWEVER, that in the event the
then fair market value (as so determined) of the portion of the
Securities so distributed applicable to one share of Common Stock is
equal to or greater than the Current Market Price on the Record Date,
in lieu of the foregoing adjustment, adequate provision shall be made
so that each Noteholder shall have the right to receive upon conversion
of a Note (or any portion thereof) the amount of Securities such holder
would have received had such holder converted such Note (or portion
thereof) immediately prior to such Record Date. In the event that such
dividend or distribution is not so paid or made, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be
in effect if such dividend or distribution had not been declared. If
the Board of Directors determines the fair market value of any
distribution for purposes of this Section 15.5(d) by reference to the
actual or when issued trading market for any securities comprising all
or part of such distribution, it must in doing so consider the prices
in such market over the same period (the "Reference Period") used in
computing the Current Market Price pursuant to Section 15.5(h) hereof
to the extent possible, unless the Board of Directors in a Board
Resolution determines in good faith that determining the fair market
value during the Reference Period would not be in the best interest of
the Noteholder.
For purposes of this Section 15.5(d) and Sections 15.5(a) and (b)
hereof, any dividend or distribution to which this Section 15.5(d) is applicable
that also includes shares of Common Stock, or rights, options or warrants to
subscribe for or purchase shares of Common Stock to which Section 15.5(b) hereof
applies (or both), shall be deemed instead to be (1) a dividend or distribution
of the evidences of indebtedness, assets, shares of capital stock, rights or
warrants other than such shares of Common Stock or rights or warrants to which
Section 15.5(b) hereof
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applies (and any Conversion Price reduction required by this Section 15.5(d)
hereof with respect to such dividend or distribution shall then be made)
immediately followed by (2) a dividend or distribution of such shares of Common
Stock or such rights or warrants (and any further Conversion Price reduction
required by Sections 15.5(a) and (b) hereof with respect to such dividend or
distribution shall then be made, except (A) the Record Date of such dividend or
distribution shall be substituted as "the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution", "Record
Date fixed for such determination" and "Record Date" within the meaning of
Section 15.5(a) hereof and as "the date fixed for the determination of
stockholders entitled to receive such rights or warrants", "the Record Date
fixed for the determination of the stockholders entitled to receive such rights
or warrants" and "such Record Date" within the meaning of Section 15.5(b) hereof
and (B) any shares of Common Stock included in such dividend or distribution
shall not be deemed "outstanding at the close of business on the date fixed for
such determination" within the meaning of Section 15.5(a) hereof.
(e) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock Cash (excluding any Cash
that is distributed upon a merger or consolidation to which Section
15.6 hereof applies or as part of a distribution referred to in Section
15.5(d) hereof), in an aggregate amount that, combined together with
(1) the aggregate amount of any other such distributions to all holders
of its Common Stock made exclusively in Cash within the twelve (12)
months preceding the date of payment of such distribution, and in
respect of which no adjustment pursuant to this Section 15.5(e) has
been made, and (2) the aggregate of any Cash plus the fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) of consideration
payable in respect of any tender offer by the Company or any of its
subsidiaries for all or any portion of the Common Stock concluded
within the twelve (12) months preceding the date of payment of such
distribution, and in respect of which no adjustment pursuant to Section
15.5(f) hereof has been made, exceeds 10% of the product of the Current
Market Price (determined as provided in Section 15.5(h) hereof) on the
Record Date with respect to such distribution times the number of
shares of Common Stock outstanding on such date, then, and in each such
case, immediately after the close of business on such date, the
Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect
immediately prior to the close of business on such Record Date by a
fraction (i) the numerator of which shall be equal to the Current
Market Price on the Record Date less an amount equal to the quotient of
(x) the excess of such combined amount over such 10% and (y) the number
of shares of Common Stock outstanding on the Record Date and (ii) the
denominator of which shall be equal to the Current Market Price on such
date; PROVIDED, HOWEVER, that in the event the portion of the Cash so
distributed applicable to one share of Common Stock is equal to or
greater than the Current Market Price of the Common Stock on the Record
Date, in lieu of the foregoing adjustment, adequate provision shall be
made so that each Noteholder shall have the right to receive upon
conversion of a Note (or any portion thereof) the amount of Cash such
holder would have received had such holder converted such Note (or
portion thereof) immediately prior to such Record Date. In the event
that such dividend or distribution is not so paid or made, the
Conversion Price shall again be
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adjusted to be the Conversion Price which would then be in effect if
such dividend or distribution had not been declared. Any Cash
distribution to all holders of Common Stock as to which the Company
makes the election permitted by Section 15.5(n) hereof and as to which
the Company has complied with the requirements of such Section shall be
treated as not having been made for all purposes of this Section
15.5(e)).
(f) In case a tender offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire and
such tender offer (as amended upon the expiration thereof) shall
require the payment to stockholders (based on the acceptance (up to any
maximum specified in the terms of the tender offer) of Purchased Shares
(as defined below)) of an aggregate consideration having a fair market
value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution) that combined
together with (1) the aggregate of the Cash plus the fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution), as of the expiration
of such tender offer, of consideration payable in respect of any other
tender offers, by the Company or any of its subsidiaries for all or any
portion of the Common Stock expiring within the twelve (12) months
preceding the expiration of such tender offer and in respect of which
no adjustment pursuant to this Section 15.5(f) has been made and (2)
the aggregate amount of any distributions to all holders of the
Company's Common Stock made exclusively in Cash within twelve (12)
months preceding the expiration of such tender offer and in respect of
which no adjustment pursuant to Section 15.5(e) hereof has been made,
exceeds 10% of the product of the Current Market Price (determined as
provided in Section 15.5(h) hereof) as of the last time (the
"Expiration Time") tenders could have been made pursuant to such tender
offer (as it may be amended) times the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration Time,
then, and in each such case, immediately prior to the opening of
business on the day after the date of the Expiration Time, the
Conversion Price shall be adjusted so that the same shall equal the
price determined by multiplying the Conversion Price in effect
immediately prior to close of business on the date of the Expiration
Time by a fraction of which the numerator shall be the number of shares
of Common Stock outstanding (including any tendered shares) on the
Expiration Time multiplied by the Current Market Price of the Common
Stock on the Trading Day next succeeding the Expiration Time and the
denominator shall be the sum of (x) the fair market value (determined
as aforesaid) of the aggregate consideration payable to stockholders
based on the acceptance (up to any maximum specified in the terms of
the tender offer) of all shares validly tendered and not withdrawn as
of the Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares") and (y) the
product of the number of shares of Common Stock outstanding (less any
Purchased Shares) on the Expiration Time and the Current Market Price
of the Common Stock on the Trading Day next succeeding the Expiration
Time, such reduction (if any) to become effective immediately prior to
the opening of business on the day following the Expiration Time. In
the event that the Company is obligated to purchase shares pursuant to
any such tender offer, but the Company is permanently prevented by
applicable law from effecting any such purchases or all such purchases
are rescinded, the Conversion Price shall again be
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adjusted to be the Conversion Price which would then be in effect if
such tender offer had not been made. If the application of this Section
15.5(f) to any tender offer would result in an increase in the
Conversion Price, no adjustment shall be made for such tender offer
under this Section 15.5(f). Any Cash distribution to all holders of
Common Stock as to which the Company has made the election permitted by
Section 15.5(n) hereof and as to which the Company has complied with
the requirements of such Section shall be treated as not having been
made for all purposes of this Section 15.5(f).
(g) In case of a tender or exchange offer made by a person
other than the Company or any Subsidiary for an amount which increases
the offeror's ownership of Common Stock to more than 25% of the Common
Stock outstanding and shall involve the payment by such person of
consideration per share of Common Stock having a fair market value (as
determined by the Board of Directors), whose determination shall be
conclusive, and described in a Board Resolution at the last time (the
"Expiration Time") tenders or exchanges may be made pursuant to such
tender or exchange offer (as it shall have been amended) that exceeds
the Current Market Price of the Common Stock on the Trading Day next
succeeding the Expiration Time, and in which, as of the Expiration Time
the Board of Directors is not recommending rejection of the offer, the
Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect
immediately prior to the Expiration Time by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding
(including any tendered or exchanged shares) on the Expiration Time
multiplied by the current Market Price of the Common Stock on the
Trading Day next succeeding the Expiration Time and the denominator
shall be the sum of (x) the fair market value (determined as aforesaid)
of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or
exchange offer) of all shares validly tendered or exchanged and not
withdrawn as of the Expiration Time (the shares deemed so accepted, up
to any such maximum, being referred to as the "Purchased Shares") and
(y) the product of the number of shares of Common Stock outstanding
(less any Purchased Shares) on the Expiration Time and the Current
Market Price of the Common Stock on the Trading Day next succeeding the
Expiration Time, such reduction to become effective immediately prior
to the opening of business on the day following the Expiration Time. In
the event that such person is obligated to purchase shares pursuant to
any such tender or exchange offer, but such person is permanently
prevented by applicable law from effecting any such purchases or all
such purchases are rescinded, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect if
such tender or exchange offer had not been made. Notwithstanding the
foregoing, the adjustment described in this Section 15.5(g) shall not
be made if, as of the Expiration Time, the offering documents with
respect to such offer disclose a plan or intention to cause the Company
to engage in any transaction described in Article 12 hereof.
(h) In the event that a Registration Statement (as defined in
the Registration Rights Agreement) to be filed by the Company pursuant
to Section 1.1.1 of the Registration Rights Agreement has not been
filed with the Commission on or prior to the
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date (the "FILING DATE") that is thirty (30) days from the date on
which the Company receives a Demand Request (as defined in the
Registration Rights Agreement), on the Filing Date the Conversion Price
of the Notes shall be reduced to a price equal to the Conversion Price
then in effect MINUS $0.25. If such Registration Statement has not been
filed with the Commission on or prior to any subsequent thirty (30) day
period following the Filing Date, on each such date the Conversion
Price shall be further reduced to a price equal to the Conversion Price
then in effect MINUS $0.10, PROVIDED, HOWEVER, that the Conversion
Price shall not be reduced pursuant to this Section 15.4(h) to an
amount less than $0.10.
(i) In the event that a Registration Statement filed by the
Company pursuant to Section 1.1.1 of the Registration Rights Agreement
has not been declared effective by the Commission on or prior to the
date (the "120 DAY DEADLINE") that is one hundred twenty (120) days
from the date on which the Company receives the Demand Request, on the
120 Day Deadline the Conversion Price shall be reduced to a price equal
to the Conversion Price then in effect MINUS $0.25. If such
Registration Statement has not been declared effective by the
Commission on or prior to any subsequent thirty (30) day period
following such 120 Day Deadline, on each such date the Conversion Price
shall be further reduced to a price equal to the Conversion Price then
in effect MINUS $0.10, PROVIDED, HOWEVER, that the Conversion Price
shall not be reduced pursuant to this Section 15.4(i) to an amount less
than $0.10.
(j) For purposes of this Section 15.5, the following terms
shall have the meaning indicated:
(1) "Closing Price" with respect to any securities on
any day shall mean the closing sale price regular way on such
day or, in case no such sale takes place on such day, the
average of the reported closing bid and asked prices, regular
way, in each case on the Nasdaq National Market or New York
Stock Exchange, as applicable, or, if such security is not
listed or admitted to trading on such National Market or
Exchange, on the principal national security exchange or
quotation system on which such security is quoted or listed or
admitted to trading, or, if not quoted or listed or admitted
to trading on any national securities exchange or quotation
system, the average of the closing bid and asked prices of
such security on the over-the-counter market on the day in
question as reported by the National Quotation Bureau
Incorporated, or a similar generally accepted reporting
service, or if not so available, in such manner as furnished
by any New York Stock Exchange member firm selected from time
to time by the Board of Directors for that purpose, or a price
determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution.
(2) "Current Market Price" shall mean the average of
the daily Closing Prices per share of Common Stock for the ten
(10) consecutive Trading Days immediately prior to the date in
question; PROVIDED, HOWEVER, that (1) if
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the "ex" date (as hereinafter defined) for any event (other
than the issuance or distribution requiring such computation)
that requires an adjustment to the Conversion Price pursuant
to Sections 15.5(a), (b), (c), (d), (e), (f) or (g) hereof
occurs during such ten (10) consecutive Trading Days, the
Closing Price for each Trading Day prior to the "ex" date for
such other event shall be adjusted by multiplying such Closing
Price by the same fraction by which the Conversion Price is so
required to be adjusted as a result of such other event, (2)
if the "ex" date for any event (other than the issuance or
distribution requiring such computation) that requires an
adjustment to the Conversion Price pursuant to Sections
15.5(a), (b), (c), (d), (e), (f) or (g) hereof occurs on or
after the "ex" date for the issuance or distribution requiring
such computation and prior to the day in question, the Closing
Price for each Trading Day on and after the "ex" date for such
other event shall be adjusted by multiplying such Closing
Price by the reciprocal of the fraction by which the
Conversion Price is so required to be adjusted as a result of
such other event, and (3) if the "ex" date for the issuance or
distribution requiring such computation is prior to the day in
question, after taking into account any adjustment required
pursuant to clause (1) or (2) of this proviso, the Closing
Price for each Trading Day on or after such "ex" date shall be
adjusted by adding thereto the amount of any Cash and the fair
market value (as determined by the Board of Directors in a
manner consistent with any determination of such value for
purposes of Sections 15.5(d), (f) or (g) hereof, whose
determination shall be conclusive and described in a Board
Resolution) of the evidences of indebtedness, shares of
capital stock or assets being distributed applicable to one
share of Common Stock as of the close of business on the day
before such "ex" date. For purposes of any computation under
Sections 15.5(f) or (g) hereof, the Current Market Price of
the Common Stock on any date shall be deemed to be the average
of the daily Closing Prices per share of Common Stock for such
day and the next two succeeding Trading Days; PROVIDED,
HOWEVER, that if the "ex" date for any event (other than the
tender offer requiring such computation) that requires an
adjustment to the Conversion Price pursuant to Sections
15.5(a), (b), (c), (d), (e), (f) and (g) hereof occurs on or
after the Expiration Time for the tender or exchange offer
requiring such computation and prior to the day in question,
the Closing Price for each Trading Day on and after the "ex"
date for such other event shall be adjusted by multiplying
such Closing Price by the reciprocal of the fraction by which
the Conversion Price is so required to be adjusted as a result
of such other event. For purposes of this paragraph, the term
"ex" date, (1) when used with respect to any issuance or
distribution, means the first date on which the Common Stock
trades regular way on the relevant exchange or in the relevant
market from which the Closing Price was obtained without the
right to receive such issuance or distribution, (2) when used
with respect to any subdivision or combination of shares of
Common Stock, means the first date on which the Common Stock
trades regular way on such exchange or in such market after
the time at which such subdivision or combination becomes
effective, and (3) when used with respect to any tender or
exchange offer means the first date on which the Common Stock
trades regular
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way on such exchange or in such market after the Expiration
Time of such offer. Notwithstanding the foregoing, whenever
successive adjustments to the Conversion Price are called for
pursuant to this Section 15.5, such adjustments shall be made
to the Current Market Price as may be necessary or appropriate
to effectuate the intent of this Section 15.5 and to avoid
unjust or inequitable results as determined in good faith by
the Board of Directors.
(3) "fair market value" shall mean the amount which a
willing buyer would pay a willing seller in an arm's length
transaction.
(4) "Record Date" shall mean, with respect to any
dividend, distribution or other transaction or event in which
the holders of Common Stock have the right to receive any
Cash, securities or other property or in which the Common
Stock (or other applicable security) is exchanged for or
converted into any combination of Cash, securities or other
property, the date fixed for determination of stockholders
entitled to receive such Cash, securities or other property
(whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).
(5) "Trading Day" shall mean (x) if the applicable
security is listed or admitted for trading on the New York
Stock Exchange or another national security exchange, a day on
which the New York Stock Exchange or another national security
exchange is open for business or (y) if the applicable
security is quoted on the Nasdaq National Market, a day on
which trades may be made thereon or (z) if the applicable
security is not so listed, admitted for trading or quoted, any
day other than a Saturday or Sunday or a day on which banking
institutions in the State of New York are authorized or
obligated by law or executive order to close.
(k) The Company may make such reductions in the Conversion
Price, in addition to those required by Sections 15.5(a), (b), (c),
(d), (e), (f), (g), (h) and (i) hereof, as the Board of Directors
considers to be advisable to avoid or diminish any income tax to
holders of Common Stock or rights to purchase Common Stock resulting
from any dividend or distribution of stock (or rights to acquire stock)
or from any event treated as such for income tax purposes.
To the extent permitted by applicable law, the Company from time to
time may reduce the Conversion Price by any amount for any period of time if the
period is at least twenty (20) days, the reduction is irrevocable during the
period and the Board of Directors shall have made a determination that such
reduction would be in the best interests of the Company, which determination
shall be conclusive and described in a Board Resolution. Whenever the Conversion
Price is reduced pursuant to the preceding sentence, the Company shall mail to
the holder of each Note at his last address appearing on the Note Register
provided for in Section 2.5 hereof a notice of the reduction at least fifteen
(15) days prior to the date the reduced Conversion
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Price takes effect, and such notice shall state the reduced Conversion Price and
the period during which it will be in effect.
(l) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% in such price; PROVIDED, HOWEVER, that any adjustments which
by reason of this Section 15.5(j) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
All calculations under this Article 15 shall be made by the Company and
shall be made to the nearest cent or to the nearest one hundredth of a
share, as the case may be. No adjustment need be made for a change in
the par value or no par value of the Common Stock.
(m) Whenever the Conversion Price is adjusted as herein
provided, the Company shall promptly file with the Trustee and any
conversion agent other than the Trustee an Officers' Certificate
setting forth the Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment.
Promptly after delivery of such certificate, the Company shall prepare
a notice of such adjustment of the Conversion Price setting forth the
adjusted Conversion Price and the date on which each adjustment becomes
effective and shall mail such notice of such adjustment of the
Conversion Price to the holder of each Note at his last address
appearing on the Note Register provided for in Section 2.5 hereof,
within twenty (20) days of the effective date of such adjustment.
Failure to deliver such notice shall not effect the legality or
validity of any such adjustment. (n) In any case in which this Section
15.5 provides that an adjustment shall become effective immediately
after a Record Date for an event, the Company may defer until the
occurrence of such event (i) issuing to the holder of any Note
converted after such Record Date and before the occurrence of such
event the additional shares of Common Stock issuable upon such
conversion by reason of the adjustment required by such event over and
above the Common Stock issuable upon such conversion before giving
effect to such adjustment and (ii) paying to such holder any amount in
Cash in lieu of any fraction pursuant to Section 15.3 hereof.
(o) For purposes of this Section 15.5, the number of shares of
Common Stock at any time outstanding shall not include shares held in
the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of
Common Stock. The Company will not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of the
Company.
(p) In lieu of making any adjustment to the Conversion Price
pursuant to Section 15.5(e) hereof, the Company may elect to reserve an
amount of Cash for distribution to the holders of the Notes upon the
conversion of the Notes so that any such holder converting Notes will
receive upon such conversion, in addition to the shares of Common Stock
and other items to which such holder is entitled, the full amount of
Cash which such holder would have received if such holder had,
immediately prior to the Record
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Date for such distribution of Cash, converted its Notes into Common
Stock, together with any interest accrued with respect to such amount,
in accordance with this Section 15.5(n). The Company may make such
election by providing an Officers' Certificate to the Trustee to such
effect on or prior to the payment date for any such distribution and
depositing with the Trustee on or prior to such date an amount of Cash
equal to the aggregate amount the holders of the Notes would have
received if such holders had, immediately prior to the Record Date for
such distribution, converted all of the Notes into Common Stock. Any
such funds so deposited by the Company with the Trustee shall be
invested by the Trustee in marketable obligations issued or fully
guaranteed by the United States government with a maturity not more
than three (3) months from the date of issuance. Upon conversion of
Notes by a holder, the holder will be entitled to receive, in addition
to the Common Stock issuable upon conversion, an amount of Cash equal
to the amount such holder would have received if such holder had,
immediately prior to the Record Date for such distribution, converted
its Note into Common Stock, along with such holder's pro rata share of
any accrued interest earned as a consequence of the investment of such
funds. Promptly after making an election pursuant to this Section
15.5(n), the Company shall give or shall cause to be given notice to
all Noteholders of such election, which notice shall state the amount
of Cash per $1,000 principal amount of Notes such holders shall be
entitled to receive (excluding interest) upon conversion of the Notes
as a consequence of the Company having made such election.
SECTION 15.6. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. If any of the following events occur, namely (i) any reclassification or
change of the outstanding shares of Common Stock (other than a 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), (ii) any consolidation, merger or
combination of the Company with another corporation as a result of which holders
of Common Stock shall be entitled to receive stock, securities or other property
or assets (including Cash) with respect to or in exchange for such Common Stock,
or (iii) any sale or conveyance of the properties and assets of the Company as,
or substantially as, an entirety to any other corporation as a result of which
holders of Common Stock shall be entitled to receive stock, securities or other
property or assets (including Cash) with respect to or in exchange for such
Common Stock, then the Company or the successor or purchasing corporation, as
the case may be, shall execute with the Trustee a supplemental indenture (which
shall comply with the Trust Indenture Act as in force at the date of execution
of such supplemental indenture if such supplemental indenture is then required
to so comply) providing that such Note shall be convertible into the kind and
amount of shares of stock and other securities or property or assets (including
Cash) receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of a number of shares of Common
Stock issuable upon conversion of such Notes (assuming, for such purposes, a
sufficient number of authorized shares of Common Stock available to convert all
such Notes) immediately prior to such reclassification, change, consolidation,
merger, combination, sale or conveyance assuming such holder of Common Stock did
not exercise his rights of election, if any, as to the kind or amount of
securities, Cash or other property receivable upon such consolidation, merger,
statutory exchange, sale or conveyance (PROVIDED, that, if the kind or amount of
securities, Cash or other property receivable upon such consolidation, merger,
statutory exchange, sale or
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conveyance is not the same for each share of Common Stock in respect of which
such rights of election shall not have been exercised ("non-electing share"),
then for the purposes of this Section 15.6 the kind and amount of securities,
Cash or other property receivable upon such consolidation, merger, statutory
exchange, sale or conveyance for each non-electing share shall be deemed to be
the kind and amount so receivable per share by a plurality of the non-electing
shares). Such supplemental indenture shall provide for adjustments which shall
be as nearly equivalent as may be practicable to the adjustments provided for in
this Article 15. If, in the case of any such reclassification, change,
consolidation, merger, combination, sale or conveyance, the stock or other
securities and assets receivable thereupon by a holder of shares of Common Stock
include shares of stock or other securities and assets of a corporation other
than the successor or purchasing corporation, as the case may be, in such
reclassification, change, consolidation, merger, combination, sale or
conveyance, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the holders of the Notes as the Board of Directors shall reasonably
consider necessary by reason of the foregoing, including to the extent
practicable the provisions providing for the repurchase rights set forth in
Article 16 hereof.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Notes, at his address appearing on the
Note Register provided for in Section 2.5 hereof, within twenty (20) days after
execution thereof. Failure to deliver such notice shall not affect the legality
or validity of such supplemental indenture.
The above provisions of this Section 15.6 shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
sales and conveyances.
If this Section 15.6 applies to any event or occurrence, Section 15.5
hereof shall not apply.
SECTION 15.7. TAXES ON SHARES ISSUED. The issue of stock certificates
on conversions of Notes shall be made without charge to the converting
Noteholder for any tax in respect of the issue thereof. The Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of stock in any name other than that
of the holder of any Note converted, and the Company shall not be required to
issue or deliver any such stock certificate unless and until the person or
persons requesting the issue thereof shall have paid to the Company the amount
of such tax or shall have established to the satisfaction of the Company that
such tax has been paid.
SECTION 15.8. RESERVATION OF SHARES; SHARES TO BE FULLY PAID; LISTING
OF COMMON STOCK. The Company shall provide, free from preemptive rights, out of
its authorized but unissued shares or shares held in treasury, sufficient shares
to provide for the conversion of the Notes from time to time as such Notes are
presented for conversion.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the shares of Common Stock
issuable upon conversion of the Notes, the Company will take all corporate
action which may, in the opinion of its counsel, be
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necessary in order that the Company may validly and legally issue shares of such
Common Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock issued upon
conversion of Notes will be fully paid and non-assessable by the Company and
free from all taxes, liens and charges with respect to the issue thereof.
The Company further covenants that if at any time the Common Stock
shall be listed on the Nasdaq National Market or any other national securities
exchange or automated quotation system the Company will, if permitted by the
rules of such exchange or automated quotation system, list and keep listed, so
long as the Common Stock shall be so listed on such exchange or automated
quotation system, all Common Stock issuable upon conversion of the Notes.
SECTION 15.9. RESPONSIBILITY OF TRUSTEE. The Trustee and any other
conversion agent shall not at any time be under any duty or responsibility to
any holder of Notes to determine whether any facts exist which may require any
adjustment of the Conversion Price, or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making the same. The Trustee and any other conversion agent shall not be
accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property, which may at any time
be issued or delivered upon the conversion of any Note; and the Trustee and any
other conversion agent make no representations with respect thereto. Subject to
the provisions of Section 8.1 hereof, neither the Trustee nor any conversion
agent shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or
property or Cash upon the surrender of any note for the purpose of conversion or
to comply with any of the duties, responsibilities or covenants of the Company
contained in this Article 15. Without limiting the generality of the foregoing,
neither the Trustee nor any conversion agent shall be under any responsibility
to determine the correctness of any provisions contained in any supplemental
indenture entered into pursuant to Section 15.6 hereof relating either to the
kind or amount of shares of stock or securities or property (including Cash)
receivable by Noteholders upon the conversion of their Notes after any event
referred to in such Section 15.6 or to any adjustment to be made with respect
thereto, but, subject to the provisions of Section 8.1 hereof, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, the Officers' Certificate (which the Company shall be
obligated to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.
SECTION 15.10. NOTICE TO HOLDERS PRIOR TO CERTAIN ACTIONS. In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock (that would require an adjustment in
the Conversion Price pursuant to Section 15.5 hereof); or
(b) the Company shall authorize the granting to the holders of
its Common Stock of rights or warrants to subscribe for or purchase any
share of any class or any other rights or warrants; or
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(c) of any reclassification of the Common Stock of the Company
(other than a subdivision or combination of its outstanding Common
Stock, or a change in par value, or from par value to no par value, or
from no par value to par value), or of any consolidation or merger to
which the Company is a party and for which approval of any shareholders
of the Company is required, or of the sale or transfer of all or
substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding-up of the Company;
the Company shall cause to be filed with the Trustee and to be mailed to each
holder of Notes at his address appearing on the Note Register, provided for in
Section 2.5 hereof, as promptly as possible but in any event at least fifteen
days prior to the applicable date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined, or (y) the date on which
such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up is expected to become effective or occur, and the date
as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up.
ARTICLE 16.
REPURCHASE UPON A REPURCHASE EVENT
SECTION 16.1. REPURCHASE RIGHT.
(a) If, at any time prior to June 18, 2007 there shall occur a
Repurchase Event, then each Noteholder shall have the right, at such
holder's option, to require the Company to repurchase all of such
holder's Notes, or any portion thereof (in principal amounts of $1,000
or integral multiples thereof), on the date (the "Repurchase Date")
that is forty (40) calendar days after the date of the Company Notice
(as defined in Section 16.2 below) of such Repurchase Event (or, if
such 40th day is not a Business Day, the next succeeding Business Day).
Such repurchase shall be made in Cash at a price equal to 105% of the
principal amount of Notes such holder elects to require the Company to
repurchase, together with accrued interest, if any, to the Repurchase
Date (the "Repurchase Price"); PROVIDED, HOWEVER, that if such
Repurchase Date is June 15 or December 15 then the interest payable on
such date shall be paid to the holder of record of the Note on the next
preceding June 15 or December 15, respectively. No Notes may be
redeemed at the option of holders upon a Repurchase Event if there has
occurred and is continuing an Event of Default, other than a default in
the payment of the Repurchase Price with respect to such Notes on the
Repurchase Date.
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SECTION 16.2. NOTICES; METHOD OF EXERCISING REPURCHASE RIGHT, ETC.
(a) Unless the Company shall have theretofore called for
redemption all of the outstanding Notes, on or before the fifteenth
(15th) calendar day after the occurrence of a Repurchase Event, the
Company or, at the written request of the Company, the Trustee, shall
mail to all holders of record of the Notes a notice (the "Company
Notice") in the form as prepared by the Company of the occurrence of
the Repurchase Event and of the repurchase right set forth herein
arising as a result thereof. The Company shall also deliver a copy of
such notice of a repurchase right to the Trustee and cause a copy of
such notice of a repurchase right, or a summary of the information
contained therein, to be published once in a newspaper of general
circulation in The City of New York. The Company Notice shall contain
the following information:
(1) the Repurchase Date,
(2) the date by which the repurchase right must be
exercised,
(3) the last date by which the election to require
repurchase, if submitted, must be revoked;
(4) the Repurchase Price and whether the Repurchase
Price shall be payable in Cash or Common Stock and, if payable
in Common Stock, the method of calculating the amount of the
Common Stock to be delivered upon the repurchase as provided
in Section 16.3(a) hereof;
(5) a description of the procedure which a holder
must follow to exercise a repurchase right, and
(6) the Conversion Price then in effect, the date on
which the right to convert the principal amount of the Notes
to be repurchased will terminate and the place or places where
Notes may be surrendered for conversion.
No failure of the Company to give the foregoing notices or defect
therein shall limit any holder's right to exercise a repurchase right or affect
the validity of the proceedings for the repurchase of Notes.
If any of the foregoing provisions are inconsistent with applicable
law, such law shall govern.
(b) To exercise a repurchase right, a holder shall deliver to
the Trustee on or before the thirty-fifth (35th) day after the Company
Notice was delivered (i) written notice to the Company (or agent
designated by the Company for such purpose) of the holder's exercise of
such right, which notice shall set forth the name of the holder, the
principal amount of the Notes to be repurchased, a statement that an
election to exercise the repurchase right is being made thereby, and,
in the event that the Repurchase Price
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shall be paid in shares of Common Stock, the name or names (with
addresses) in which the certificate or certificates for shares of
Common Stock shall be issued, and (ii) the Notes with respect to which
the repurchase right is being exercised, duly endorsed for transfer to
the Company. Election of repurchase by a holder shall be revocable at
any time prior to, but excluding, the Repurchase Date, by delivering
written notice to that effect to the Trustee prior to the close of
business on the Business Day prior to the Repurchase Date.
(c) If the Company fails to repurchase on the Repurchase Date
any Notes (or portions thereof) as to which the repurchase right has
been properly exercised, then the principal of such Notes shall, until
paid, bear interest to the extent permitted by applicable law from the
Repurchase Date at the rate borne by the Note and each such Note shall
be convertible into Common Stock in accordance with this Indenture
(without giving effect to Section 16.2(b) hereof) until the principal
of such Note shall have been paid or duly provided for.
(d) Any Note which is to be repurchased only in part shall be
surrendered to the Trustee duly endorsed for transfer to the Company
and accompanied by appropriate evidence of genuineness and authority
satisfactory to the Company and the Trustee duly executed by, the
holder thereof (or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver
to the holder of such Note without service charge, a new Note or Notes,
containing identical terms and conditions, of any authorized
denomination as requested by such holder in aggregate principal amount
equal to and in exchange for the unrepurchased portion of the principal
of the Note so surrendered.
(e) On or prior to the Repurchase Date, the Company shall
deposit with the Trustee or with a paying agent (or, if the Company is
acting as its own paying agent, segregate and hold in trust as provided
in Section 5.4 hereof) the Repurchase Price in Cash for payment to the
holder on the Repurchase Date; PROVIDED, that if payment is to be made
in Cash, such Cash payment is made on the Repurchase Date it must be
received by the Trustee or paying agent, as the case may be, by 10:00
a.m., New York City time, on such date; PROVIDED FURTHER, that if the
Repurchase Price is to be paid in shares of Common Stock, such shares
of Common Stock are to be issued as promptly after the Repurchase Date
as practicable.
(f) Any issuance of shares of Common Stock in respect of the
Repurchase Price shall be deemed to have been effected immediately
prior to the close of business on the Repurchase Date and the person or
persons in whose name or names any certificate or certificates for
shares of Common Stock shall be issuable upon such repurchase shall be
deemed to have become on the Repurchase Date the holder or holders of
record of the shares represented thereby; PROVIDED, HOWEVER, that any
surrender for repurchase on a date when the stock transfer books of the
Company shall be closed shall constitute the person or persons in whose
name or names the certificate or certificates for such shares are to be
issued as the record holder or holders thereof for all purposes at the
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opening of business on the next succeeding day on which such stock
transfer books are open. No payment or adjustment shall be made for
dividends or distributions on any Common Stock issued upon repurchase
of any Security declared prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of
Notes. If more than one Note shall be repurchased from the same holder
and the Repurchase Price shall be payable in shares of Common Stock,
the number of full shares which shall be issuable upon such repurchase
shall be computed on the basis of the aggregate principal amount of the
Notes so repurchased. Instead of any fractional share of Common Stock
which would otherwise be issuable on the repurchase of any Note or
Notes, the Company will deliver to the applicable holder its check for
the current market value of such fractional share. The current market
value of a fraction of a share is determined by multiplying the current
market price of a full share by the fraction, and rounding the result
to the nearest cent. For purposes of this Section 16.2, the "current
market price" of a share of Common Stock is the Closing Price of the
Common Stock on the Trading Day immediately preceding the Repurchase
Date.
(h) Any issuance and delivery of certificates for shares of
Common Stock on repurchase of Notes shall be made without charge to the
holder of Notes being repurchased for such certificates or for any tax
or duty in respect of the issuance or delivery of such certificates or
the securities represented thereby; PROVIDED, HOWEVER, that the Company
shall not be required to pay any tax or duty which may be payable in
respect of (i) income of the holder or (ii) any transfer involved in
the issuance or delivery of certificates for shares of Common Stock in
a name other than that of the holder of the Notes being repurchased,
and no such issuance or delivery shall be made unless and until the
person requesting such issuance or delivery 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.
(i) All Notes delivered for repurchase shall be delivered to
the Trustee to be canceled in accordance with the provisions of Section
2.8 hereof.
SECTION 16.3. CERTAIN DEFINITIONS. For purposes of this Article 16:
(a) the term "beneficial owner" shall be determined in
accordance with Rule 13d-3 and 13d-5, as in effect on the date of the
original execution of this Indenture, promulgated by the Commission
pursuant to the Exchange Act;
(b) the term "person" or "group" shall include any syndicate
or group which would be deemed to be a "person" under Sections 13(d)
and 14(d) of the Exchange Act as in effect on the date of the original
execution of this Indenture; and
(c) the term "Continuing Director" means at any date a member
of the Company's Board of Directors (i) who was a member of such board
on December 31, 2003 or (ii) who was nominated or elected by at least a
majority of the directors who were
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Continuing Directors at the time of such nomination or election or
whose election to the Company's Board of Directors was recommended or
endorsed by at least a majority of the directors who were Continuing
Directors at the time of such nomination or election or such lesser
number comprising a majority of a nominating committee if authority for
such nominations or elections has been delegated to a nominating
committee whose authority and composition have been approved by at
least a majority of the directors who were continuing directors at the
time such committee was formed. (Under this definition, if the Board of
Directors of the Company as of the date of this Indenture were to
approve a new director or directors and then resign, no Change in
Control would occur even though the current Board of Directors would
thereafter cease to be in office).
(d) the term "Repurchase Event" means the occurrence of a
Change in Control or a Termination of Trading.
(e) a "Change in Control" shall be deemed to have occurred
when (i) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rules 13-d3 and 13-d5 under the Exchange Act) of
shares representing more than 50% of the combined voting power of the
then outstanding securities entitled to vote generally in elections of
directors of the Company (the "Voting Stock"); (ii) approval by
stockholders of the Company of any plan or proposal for the
liquidation, dissolution or winding up of the Company; (iii) the
Company (A) consolidates with or merges into any other corporation or
any other corporation merges into the Company, and in the case of any
such transaction, the outstanding Common Stock of the Company is
changed or exchanged into other assets or securities as a result,
unless the stockholders of the Company immediately before such
transaction own, directly or indirectly immediately following such
transaction, at least 51% of the combined voting power of the
outstanding voting securities of the corporation resulting from such
transaction in substantially the same proportion as their ownership of
the Voting Stock immediately before such transaction, or (B) in one or
more related transactions, conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets to any person; or
(iv) at any time Continuing Directors do not constitute a majority of
the Board of Directors of the Company (or, if applicable, a successor
corporation to the Company); PROVIDED, that a Change in Control shall
not be deemed to have occurred if either (x) (1) the Closing Price (as
defined in Section 15.5(h)(1) hereof) of the Common Stock for any five
Trading Days during the ten (10) Trading Days immediately preceding the
Change in Control is at least equal to 120% of the Conversion Price in
effect on the date on which the Change in Control occurs, (2) the
Common Stock is traded on a United States national securities exchange
or quoted on The Nasdaq Stock Market and (3) shares of the Common Stock
issuable upon conversion of the Notes are freely transferable without
requiring registration under the Securities Act or (y) in the case of a
merger or consolidation otherwise constituting a Change in Control, (1)
all of the consideration (excluding Cash payments for fractional
shares) in such merger or consolidation constituting the Change in
Control consists of common stock traded on a United States national
securities exchange or quoted on The Nasdaq Stock Market (or which will
be so traded or quoted when issued or exchanged in connection
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with such Change in Control), (2) as a result of such transaction or
transactions such Notes become convertible solely into such common
stock and (3) the Company or the entity or Person formed by or
surviving any such Change of Control shall have a pro forma Fixed
Charge Coverage Ratio for the most recently ended four full fiscal
quarters for which internal financial statements are available
immediately preceding the date of such Change in Control, assuming such
Change in Control had occurred on the first day of such period, equal
to or greater than 2 to 1.
(f) a "Termination of Trading" shall have occurred if the
Common Stock (or other common stock into which the Notes are then
convertible) is neither listed for trading on a United States national
securities exchange nor approved for trading on an established over the
counter trading market in the United States, including, without
limitation, the Nasdaq Over-the-Counter Bulletin Board.
ARTICLE 17.
COLLATERAL AND SECURITY
SECTION 17.1. SECURITY DOCUMENTS. The due and punctual payment of the
principal of, premium, if any, interest on, and any other amounts due in respect
of, the Notes when and as the same shall be due and payable, whether on an
Interest Payment Date, at Stated Maturity, by acceleration, call for redemption,
upon a Change of Control Offer, Excess Proceeds Offer, purchase or otherwise,
and interest on the overdue principal of and interest (to the extent permitted
by law), on the Notes and performance of all other obligations of the Company
and the Subsidiary Guarantors to the Holders or the Trustee under this
Indenture, the Notes and the Security Documents, according to the terms
hereunder or thereunder, shall be secured by a Lien on substantially all of the
Company's and each Subsidiary Guarantor's assets in favor of the Collateral
Agent, for the benefit of the Trustee and the Holders, as provided in the
Security Documents.
Each Holder, by its acceptance of a Secured Note, consents and agrees
to the terms of the Security Documents (including, without limitation, the
provisions providing for foreclosure and release of Collateral) as the same may
be in effect or may be amended from time to time in accordance with the terms
thereof and hereof and authorizes and directs the Collateral Agent and the
Trustee to enter into each of the Security Documents and to perform its
respective obligations and exercise its respective rights thereunder in
accordance therewith. The Company and each Subsidiary Guarantor will do or cause
to be done all such acts and things as may be reasonably necessary or proper, or
as may be required by the express provisions of the Security Documents to which
it is a party, to assure and confirm to the Collateral Agent and the Trustee the
Liens in the Collateral contemplated hereby and by the Security Documents to
which it is a party, as from time to time constituted, so as to render the same
available to the fullest extent permitted by law for the security and benefit of
this Indenture and of the Notes, according to the intent and purposes herein and
therein expressed. The Company and each Subsidiary Guarantor shall to the
fullest extent permitted by law, but subject in all cases to the Intercreditor
Agreement, take, upon request of the Collateral Agent, or Trustee, any and all
actions reasonably required to cause the
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Security Documents to which it is a party to create and maintain, as security
for the obligations of the Company and the Subsidiary Guarantors under this
Indenture and the Notes, and the Security Documents, the valid and enforceable,
perfected (except as expressly provided herein and therein) Liens in and on all
the Collateral in favor of the Collateral Agent for the benefit of the Trustee
and for the equal and ratable benefit of the Holders.
SECTION 17.2. RECORDING. The Company represents that, subject in all
cases to the terms of the Intercreditor Agreement, it has caused or will
promptly cause to be executed and delivered, filed and recorded and covenants
that it will promptly cause to be executed and delivered and filed and recorded,
all instruments and documents, and represents that, subject in all cases to the
terms of the Intercreditor Agreement, it has done and will do or will cause to
be done all such acts and other things, at the Company's or the Company's
expense, as applicable, as are necessary to subject the applicable Collateral to
valid Liens and to perfect those Liens, all to the fullest extent permitted by
law. The Company shall, to the extent permitted by the Intercreditor Agreement,
as promptly as practicable, cause to be executed and delivered, filed and
recorded all instruments and do all acts and other things as may be required by
law to perfect, maintain and protect the Liens under the Security Documents
(except as otherwise expressly provided herein and therein), all to the fullest
extent permitted by law.
The Company shall otherwise comply with the provisions of Section
314(b) and, as applicable, Sections 314(c), (d) and (e) of the Trust Indenture
Act.
SECTION 17.3. FURTHER ASSURANCES AND SECURITY. Subject in all cases to
the terms of the Intercreditor Agreement, the Company shall, and shall cause the
Company and the Subsidiary Guarantors to, execute, acknowledge and deliver to
the Collateral Agent, at the Company's and/or such Subsidiary Guarantor's
expense, at any time and from time to time such further assignments, transfers,
assurances or other instruments as may be reasonably required to effectuate the
terms of this Indenture and the Security Documents, and will at any time and
from time to time do or cause to be done all such acts and things as may be
necessary or proper, or as may be reasonably required by the Collateral Agent or
Trustee, to assure and confirm to the Collateral Agent the Liens in the
Collateral contemplated hereby and by the Security Documents, all to the fullest
extent permitted by law. The Trustee shall have no duty to determine whether any
filing or recording is necessary hereunder or under any Security Document.
SECTION 17.4. RELEASE OF COLLATERAL. Collateral may be released from
the Liens created by the Security Documents at any time or from time to time,
and the Security Documents may be terminated, in accordance with the provisions
of the Security Documents or in accordance with this Indenture. In addition,
upon the request of the Company pursuant to an Officer's Certificate and receipt
of an Opinion of Counsel certifying that any sale, conveyance or disposal of any
Collateral has been effected in compliance with the provisions of this
Indenture, the Trustee will cause the Collateral Agent to release, and the
Collateral Agent will release, the Lien on such Collateral (including all
proceeds thereof). Upon receipt of such Officer's Certificate and Opinion of
Counsel, the Trustee will cause the Collateral Agent to, and the Collateral
Agent will, execute, deliver and acknowledge any necessary or proper instruments
of termination or release to evidence the release of the Liens on any Collateral
(including the
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proceeds thereof) permitted to be released pursuant to this Indenture or the
Security Documents. The release of any Liens on Collateral (including the
proceeds thereof) from the terms hereof and of the Security Documents or the
release of, in whole or in part, the Liens created by the Security Documents, or
the termination of the Security Documents, will not be deemed to impair the
Liens on the Collateral in contravention of the provisions hereof if and to the
extent that the Liens on Collateral are released, or the Security Documents are
terminated, otherwise than pursuant to this Indenture or the applicable Security
Documents. The Trustee and each of the Holders acknowledge that a release of any
Lien on Collateral or a Lien in accordance with the terms of the Security
Documents will be deemed an authorized release of such Lien pursuant to the
terms of this Indenture. To the extent applicable, the Company and each obligor
on the Notes shall cause Section 314(d) of the TIA relating to the release of
property or securities from the Lien hereof and of the Security Documents to be
complied with. Any certificate or opinion required by Section 314(d) of the TIA
may be made by an officer of the Company, except in cases which Section 314(d)
of the TIA requires that such certificate or opinion be made by an independent
person. In releasing any Collateral pursuant to the terms of the Indenture,
including the provisions of any Security Document, the Trustee shall be entitled
to receive, and shall be fully protected in relying upon an Officers'
Certificate and Opinion of Counsel certifying that such release is authorized or
permitted by this Indenture and the Security Documents and that all conditions
precedent, if any, to such release have been satisfied.
SECTION 17.5. AUTHORIZATION OF ACTIONS TO BE TAKEN UNDER THE SECURITY
DOCUMENTS. Subject in all cases to the terms of the Intercreditor Agreement, and
solely as among the Collateral Agent, the Trustee and the Holders, the
Collateral Agent, and/or the Trustee may, in its sole discretion and without the
consent of the Holders, on behalf of the Holders, take all actions it deems
necessary or appropriate in order to (a) enforce any of the terms of the
Security Documents and (b) collect and receive any and all amounts payable in
respect of the obligations of the Company hereunder. Subject in all cases to the
terms of the Intercreditor Agreement, solely as among the Collateral Agent, the
Trustee and the Holders, each of the Collateral Agent and the Trustee shall have
the power to institute and to maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any acts that may be
unlawful or in violation of the Security Documents, or this Indenture, and such
suits and proceedings as the Collateral Agent or the Trustee may deem expedient
to preserve or protect its interests and the interests of the Holders in the
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
government enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair the security interest hereunder or be prejudicial to the interests
of the Holders or of the Trustee).
SECTION 17.6. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER
THE SECURITY DOCUMENTS. The Trustee is authorized to receive any funds for the
benefit of the Holders distributed under the Security Documents, and to make
further distributions of such funds to the Holders according to the provisions
of this Indenture and the Security Documents, but subject in all cases to the
terms of the Intercreditor Agreement.
-98-
SECTION 17.7. INTERCREDITOR AGREEMENT. The Trustee and each and every
holder of any Note or any person otherwise entitled to the benefit of any
Subsidiary Guarantee hereby acknowledges and agrees that the provisions of this
Section 17 and the Security Documents shall, in all cases, be subject to the
terms and conditions set forth in the Intercreditor Agreement.
ARTICLE 18.
GUARANTEE OF NOTES
SECTION 18.1. SUBSIDIARY GUARANTEE. Subject to the provisions of this
Article 18 each Subsidiary Guarantor hereby jointly and severally, fully and
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors, irrespective of the
validity and enforceability of this Indenture, the Notes or the obligations of
the Company or any other Subsidiary Guarantors to the Holders or the Trustee
hereunder or thereunder, that: (a) the principal of, premium, if any, and
interest on the Notes will be duly and punctually paid in full when due, whether
at maturity, by acceleration, call for redemption, upon an Excess Proceeds
Offer, a Change of Control Offer or otherwise, and interest on the overdue
principal and (to the extent permitted by law) interest on the Notes and all
other obligations of the Company or the Subsidiary Guarantors to the Holders or
the Trustee hereunder or thereunder (including amounts due the Trustee
hereunder) and all other obligations of the Company under this Indenture,
including to the Trustee or under the Notes (including fees, expenses or other)
will be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, the same will be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, whether at stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed, or failing performance of any
other obligation of the Company to the Holders, for whatever reason, each
Subsidiary Guarantor will be obligated to pay, or to perform or cause the
performance of, the same immediately. An Event of Default under this Indenture
or the Notes shall constitute an event of default under this Subsidiary
Guarantee, and shall entitle the Holders of Notes or the Trustee to accelerate
the obligations of the Subsidiary Guarantors hereunder in the same manner and to
the same extent as the obligations of the Company.
Each of the Subsidiary Guarantors hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes, the Security Documents or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any holder
of the Notes with respect to any provisions hereof or thereof, any release of
any other Subsidiary Guarantor, the recovery of any judgment against the
Company, any action to enforce the same, whether or not a Subsidiary Guarantee
is affixed to any particular Note, or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
Each of the Subsidiary Guarantors hereby waives the benefit of diligence,
presentment, demand for payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenants
that its Subsidiary
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Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes, this Indenture and this Subsidiary
Guarantee. This Subsidiary Guarantee is a guarantee of payment and not of
collection. If any Holder or the Trustee is required by any court or otherwise
to return to the Company or to any Subsidiary Guarantor, or any custodian,
trustee, liquidator or other similar official acting in relation to the Company
or such Subsidiary Guarantor, any amount paid by the Company or such Subsidiary
Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Subsidiary Guarantor further agrees that, as between it, on the one hand,
and the Holders of Notes and the Trustee, on the other hand, (a) subject to this
Article 18, the maturity of the obligations guaranteed hereby may be accelerated
as provided herein for the purposes of this Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (b) in the
event of any acceleration of such obligations as provided herein, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Subsidiary Guarantors for the purpose of this Subsidiary
Guarantee.
This Subsidiary Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Company
for liquidation or reorganization, should the Company become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Notes are
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on the Notes, whether as a "voidable
preference," "fraudulent transfer" or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Notes shall, to the
fullest extent permitted by law, be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
The obligations of each Subsidiary Guarantor are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Subsidiary Guarantee or pursuant to its contribution obligations under this
Indenture, result in the obligations of such Subsidiary Guarantor under the
Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under federal or state law. Each Subsidiary Guarantor that makes a
payment or distribution under a Subsidiary Guarantee shall be entitled to a
contribution from each other Subsidiary Guarantor in a pro rata amount based on
the net assets of each Subsidiary Guarantor, determined in accordance with GAAP.
A Subsidiary Guarantor shall be released from all of its obligations
under its Subsidiary Guarantee if it merges with or into or consolidates with,
or transfers all or substantially all of its assets in compliance with Section
16.1 hereof, or the Subsidiary Guarantor is designated an Unrestricted
Subsidiary in compliance with the other terms of this Indenture, and such
Subsidiary Guarantor has delivered to the Trustee an Officers' Certificate and
an Opinion of
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Counsel, each stating that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 18.2. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEE. This
Indenture or a supplemental indenture in the form attached hereto as EXHIBIT B
shall be executed on behalf of each Subsidiary Guarantor by the Chairman of the
Board, any Vice Chairman, the President or one of the Vice Presidents of such
Subsidiary Guarantor. A notation of Subsidiary Guarantee may, but need not, be
placed on each Note. Any such notation may, but need not, be executed by one or
more Subsidiary Guarantors. The validity and enforceability of any Subsidiary
Guarantee shall not be affected by the fact that it is not affixed to any
particular Note.
Each of the Subsidiary Guarantors hereby agrees that its Subsidiary
Guarantee set forth in Section 18.1 hereof shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
If an officer of a Subsidiary Guarantor whose signature is on this
Indenture or a Subsidiary Guarantee no longer holds that office at the time the
Trustee authenticate the Note on which such Subsidiary Guarantee is endorsed or
at any time thereafter, such Subsidiary Guarantor's Subsidiary Guarantee of such
Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Subsidiary Guarantee set
forth in this Indenture on behalf of the Subsidiary Guarantor.
SECTION 18.3. LIMITATION OF SUBSIDIARY GUARANTEE. The obligations of
each Subsidiary Guarantor are limited to the maximum amount as will, after
giving effect to all other contingent and fixed liabilities of such Subsidiary
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Subsidiary Guarantor in respect of the obligations of
such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to
its contribution obligations under this Indenture, result in the obligations of
such Subsidiary Guarantor under the Subsidiary Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under federal or state law. Each
Subsidiary Guarantor that makes a payment or distribution under a Subsidiary
Guarantee shall be entitled to a contribution from each other Subsidiary
Guarantor in a pro rata amount based on the net assets of each Subsidiary
Guarantor, determined in accordance with GAAP.
SECTION 18.4. ADDITIONAL SUBSIDIARY GUARANTORS. The Company covenants
and agrees that it shall cause any Person which becomes a Restricted Subsidiary
(other than a Restricted Subsidiary which is a Foreign Subsidiary) to execute a
supplemental indenture and any other documentation requested by the Trustee
satisfactory in form and substance to the Trustee pursuant to which such
Restricted Subsidiary shall guarantee the obligations of the Company under the
Notes and this Indenture in accordance with this Article 18 with the same effect
and to the same extent as if such Person had been named herein as a Subsidiary
Guarantor.
-101-
SECTION 18.5. RELEASE OF SUBSIDIARY GUARANTOR. A Subsidiary Guarantor
shall be released from all of its obligations under its Subsidiary Guarantee if:
(f) the Subsidiary Guarantor has sold all of its assets or the Company
and its Restricted Subsidiaries have sold all of the Capital Stock of the
Subsidiary Guarantor owned by them, in each case in a transaction in compliance
with the terms of this Indenture (including Section 16.1 hereof); PROVIDED, that
the Net Cash Proceeds of such sale are applied in accordance with this
Indenture;
(g) the Subsidiary Guarantor merges with or into or consolidates with,
or transfers all or substantially all of its assets to, the Company or another
Subsidiary Guarantor in a transaction in compliance with the terms of this
Indenture (including Section 16.1 hereof); or
(h) the Subsidiary Guarantor is designated an Unrestricted Subsidiary
in compliance with the terms of this Indenture;
and in each such case, the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with and that such release is authorized and permitted hereunder.
The Trustee shall execute any documents reasonably requested by the
Company or a Subsidiary Guarantor in order to evidence the release of such
Subsidiary Guarantor from its obligations under its Subsidiary Guarantee
endorsed on the Notes and under this Article 18.
SECTION 18.6. WAIVER OF SUBROGATION. Until all sums due under this
Indenture and the Notes have been indefeasibly paid in full, each Subsidiary
Guarantor hereby waives any claim or other rights which it may now or hereafter
acquire against the Company that arise from the existence, payment, performance
or enforcement of such Subsidiary Guarantor's obligations under this Subsidiary
Guarantee and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, indemnification, and any right to
participate in any claim or remedy of any Holder of Notes against the Company,
whether or not such claim, remedy or right arises in equity, or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Company, directly or indirectly, in Cash or other property or
by set-off or in any other manner, payment or Note on account of such claim or
other rights. If any amount shall be paid to any Subsidiary Guarantor in
violation of the preceding sentence and the Notes shall not have been paid in
full, such amount shall have been deemed to have been paid to such Subsidiary
Guarantor for the benefit of, and held in trust for the benefit of, the Holders
of the Notes, and shall forthwith be paid to the Trustee for the benefit of such
Holders to be credited and applied upon the Notes, whether matured or unmatured,
in accordance with the terms of this Indenture. Each Subsidiary Guarantor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that the waiver set
forth in this Section 18.6 is knowingly made in contemplation of such benefits.
-102-
ARTICLE 19.
MISCELLANEOUS PROVISIONS
SECTION 19.1. PROVISIONS BINDING ON COMPANY'S SUCCESSORS. All the
covenants, stipulations, promises and agreements of the Company in this
Indenture contained shall bind its successors and assigns whether so expressed
or not.
SECTION 19.2. OFFICIAL ACTS BY SUCCESSOR CORPORATION. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful sole successor
of the Company.
SECTION 19.3. ADDRESSES FOR NOTICES, ETC. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the holders of Notes on the Company shall be deemed to have
been sufficiently given or made, for all purposes if given or served by being
deposited postage prepaid by registered or certified mail in a post office
letter box addressed (until another address is filed by the Company with the
Trustee) to 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Chief
Financial Officer. Any notice, direction, request or demand hereunder to or upon
the Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or served by being deposited postage prepaid by registered or
certified mail in a post office letter box addressed to the Corporate Trust
Office.
The Trustee, by notice to the Company, may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed to
him by first class mail, postage prepaid, at his address as it appears on the
Note Register and shall be sufficiently given to him if so mailed within the
time prescribed.
Failure to mail a notice or communication to a Noteholder or any defect
in it shall not affect its sufficiency with respect to other Noteholders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 19.4. GOVERNING LAW. This Indenture and each Note shall be
deemed to be a contract made under the laws of New York, and for all purposes
shall be construed in accordance with the laws of New York (without regard to
the conflict of laws provisions thereof).
SECTION 19.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT;
CERTIFICATES TO TRUSTEE. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with,
-103-
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Each certificate or opinion provided for by or on behalf of the Company
in this Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture shall include (1) a
statement that the person making such certificate or opinion has read such
covenant or condition; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion contained in
such certificate or opinion is based; (3) a statement that, in the opinion of
such person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
SECTION 19.6. LEGAL HOLIDAYS. In any case where the date of maturity of
interest on or principal of the Notes or the date fixed for redemption of any
Note will not be a Business Day, then payment of such interest on or principal
of the Notes need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period from and after such date.
SECTION 19.7. TRUST INDENTURE ACT. This Indenture is hereby made
subject to, and shall be governed by, the provisions of the Trust Indenture Act
required to be part of and to govern indentures qualified under the Trust
Indenture Act. If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in an indenture
qualified under the Trust Indenture Act, such required provision shall control.
SECTION 19.8. BENEFITS OF INDENTURE. Nothing in this Indenture or in
the Notes, expressed or implied, shall give to any person, other than the
parties hereto, any paying agent, any authenticating agent, any Note Registrar
and their successors hereunder, the holders of Notes and the holders of Senior
Indebtedness, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 19.9. TABLE OF CONTENTS, HEADINGS, ETC. The table of contents
and the titles and headings of the articles and sections of this Indenture have
been inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 19.10. AUTHENTICATING AGENT. The Trustee may appoint an
authenticating agent which shall be authorized to act on its behalf and subject
to its direction in the authentication and delivery of Notes in connection with
the original issuance thereof and transfers and exchanges of Notes hereunder,
including under Sections 2.4, 2.5, 2.6, 2.7 and 3.3 hereof, as fully to all
intents and purposes as though the authenticating agent had been expressly
authorized by this Indenture and those Sections to authenticate and deliver
Notes. For all purposes of this Indenture, the authentication and delivery of
Notes by the authenticating agent shall be deemed to be authentication and
delivery of such Notes "by the Trustee" and a certificate
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of authentication executed on behalf of the Trustee by an authenticating agent
shall be deemed to satisfy any requirement hereunder or in the Notes for the
Trustee's certificate of authentication. Such authenticating agent shall at all
times be a person eligible to serve as trustee hereunder pursuant to Section 8.9
hereof.
Any corporation into which any authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any authenticating agent
shall be a party, or any corporation succeeding to the corporate trust business
of any authenticating agent, shall be the successor of the authenticating agent
hereunder, if such successor corporation is otherwise eligible under this
Section 19.10, without the execution or filing of any paper or any further act
on the part of the parties hereto or the authenticating agent or such successor
corporation.
Any authenticating agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any authenticating agent by giving written notice
of termination to such authenticating agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any authenticating agent shall cease to be eligible under this Section 19.10,
the Trustee shall promptly appoint a successor authenticating agent (which may
be the Trustee), shall give written notice of such appointment to the Company
and shall mail notice of such appointment to all holders of Notes as the names
and addresses of such holders appear on the Note Register.
The Company agrees to pay to the authenticating agent from time to time
reasonable compensation for its services (to the extent pre-approved by the
Company in writing).
The provisions of Sections 8.2, 8.3, 8.4, 9.3 hereof and this Section
19.10 shall be applicable to any authenticating agent.
SECTION 19.11. EXECUTION IN COUNTERPARTS. This Indenture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
The Bank of New York hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
COMPANY:
-------
IBASIS, INC.
By: /s/ Xxxxxx X. XxxxxxXxxx
------------------------------
Name: Xxxxxx X. XxxxxxXxxx
Title: Executive Vice President
SUBSIDIARY GUARANTORS:
---------------------
IBASIS GLOBAL, INC.
By: /s/ Xxxxxx X. XxxxxxXxxx
-------------------------------
Name: Xxxxxx X. XxxxxxXxxx
Title: Executive Vice President
IBASIS SECURITIES CORPORATION
By: /s/ Xxxxxx X. XxxxxxXxxx
-------------------------------
Name: Xxxxxx X. XxxxxxXxxx
Title: Executive Vice President
TRUSTEE:
--------
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------
Authorized Signatory
[8% Secured Convertible Note Indenture]
ADDITIONAL SUBSIDIARY GUARANTOR:
-------------------------------
IBASIS HOLDINGS, INC.
By: /s/ Xxxx Xxxxxx
------------------------------
Name: Xxxx Xxxxxx
Title: President
[8% Secured Convertible Note Indenture]
SCHEDULE 1.1
EXISTING INDEBTEDNESS
-----------------------------------------------------------------------------------
DEBTOR MAXIMUM AMOUNT MATURITY DATE
-----------------------------------------------------------------------------------
Silicon Valley Bank (1) $15,000,000 January 2005
-----------------------------------------------------------------------------------
11 1/2% Senior Secured Notes $25,175,000 January 2005
-----------------------------------------------------------------------------------
63/4% Convertible Subordinated $38,180,000 March 2005
Notes
-----------------------------------------------------------------------------------
Cisco Systems Capital Corp. $ 853,000 January 2005
-----------------------------------------------------------------------------------
XXX Xxxxxxxxxxx $ 68,000 March 2005
-----------------------------------------------------------------------------------
Enavis Networks Inc. $ 5,000 June 2004
-----------------------------------------------------------------------------------
Total $79,281,000
-----------------------------------------------------------------------------------
(1) REPRESENTS AMOUNT OUTSTANDING UNDER STANDBY LETTERS OF CREDIT.
EXHIBIT A
FORM OF NOTE
[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL NOTE:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A
NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND
ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS NOTE FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED TO IN THE
INDENTURE, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.]
A-1
IBASIS, INC.
8% SECURED CONVERTIBLE NOTE
DUE 2007
No. 1 U.S. $29,000,000
CUSIP NO. 000000XX0
IBASIS, INC., a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company," which term includes any
successor person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to CEDE & CO., the principal sum of
Twenty-nine Million United States Dollars (U.S. $29,000,000) (which principal
amount may from time to time be increased or decreased to such other principal
amounts (which, taken together with the principal amounts of all other
outstanding Notes under the Indenture, shall not exceed U.S. $29,000,000 in the
aggregate at any time) by adjustments made on the records of the Trustee
hereinafter referred to in accordance with the Indenture) on June 18, 2007 and
to pay interest thereon, from June 18, 2004, or from the most recent Interest
Payment Date (as defined below) to which interest has been paid or duly provided
for, semi-annually in arrears on June 15 and December 15 in each year (each, an
"Interest Payment Date"), commencing December 15, 2004, at the rate of 8% per
annum, until the principal hereof is due, and at the rate of 10.00% per annum on
any overdue principal and premium, if any, and, to the extent permitted by law,
on any overdue interest. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Note (or one or more Predecessor Notes)
is registered at the close of business on the record date with respect to any
Interest Payment Date, which shall be the June 1 or December 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Except as otherwise provided in the Indenture, any such interest not so
punctually paid or duly provided for ("Defaulted Interest") will forthwith cease
to be payable to the Noteholder on the relevant record date by virtue of his
having been such Noteholder and may either be paid to the Person in whose name
this Note (or one or more Predecessor Note) is registered at the close of
business on a special record date for the payment of such Defaulted Interest to
be fixed in accordance with the Indenture or be paid at any time in any other
lawful manner not inconsistent with the requirements of any automated quotation
system or securities exchange on which the Notes may be quoted or listed, and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture. Payments of principal shall be made upon the surrender of this
Note at the Corporate Trust Office of the Trustee, or at such other office or
agency of the Company as may be designated by the Company for such purpose in
the Borough of Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment shall be legal tender for the
payment of public and private debts, by United States Dollar check drawn on, or
transfer to, a United States Dollar account. Payments of interest on this Note
may be made by United States Dollar check, drawn on a United States Dollar
Account, mailed to the address of the Person entitled thereto as such address
shall appear in the Note Registry, or, upon written application by the
Noteholder to the Trustee setting forth wire instructions not later than two
days prior to the applicable record date,
A-2
by transfer to a United States Dollar account; PROVIDED, HOWEVER, that transfers
to United States Dollar accounts will be made only to Noteholders of an
aggregate principal amount of Notes in excess of $2,000,000; PROVIDED FURTHER,
that any payment to the Depositary or its nominee shall be made by wire transfer
of immediately available funds to the account of the Depositary or its nominee.
Except as specifically provided herein and in the Indenture, the
Company shall not be required to make any payment with respect to any tax,
assessment or other governmental charge imposed by any government or any
political subdivision or taxing authority thereof or therein.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof or an authenticating agent by the
manual signature of one of their respective authorized signatories, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
A-3
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed and delivered under its corporate seal.
COMPANY:
-------
IBASIS, INC.
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
Attest:
By:
----------------------------
Name:
Title:
(Trustee's Certificate of Authentication)
This is one of the 8% Secured Convertible Notes due 2007 referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:
----------------------------
Authorized Signatory
A-4
[FORM OF REVERSE]
This Note is one of a duly authorized issue of securities of the
Company designated as its "8% Secured Convertible Notes due 2007" (herein called
the "Notes"), limited in aggregate principal amount to U.S. $29,000,000, issued
and to be issued under an Indenture, dated as of June 18, 2004 (herein called
the "Indenture"), between the Company, the Subsidiary Guarantors named therein
and The Bank of New York, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture) to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee, the holders of the Notes and of the terms upon which
the Notes are, and are to be, authenticated and delivered. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of any authorized
denominations as requested by the holder surrendering the same upon surrender of
the Note or Notes to be exchanged, initially, at the Corporate Trust Office of
the Trustee. The Trustee upon such surrender by the holder will issue the new
Notes in the requested denominations.
No sinking fund is provided for the Notes.
The Notes are subject to Provisional Redemption by the Company, in
whole or in part, at any time on or after June 18, 2005, upon notice as set
forth in Section 3.2 of the Indenture, at a redemption price equal to $1,000 per
Note to be redeemed plus accrued and unpaid interest, if any, to the Provisional
Redemption Date if the Closing Price of the Common Stock shall have exceeded
150% of the Conversion Price then in effect for at least 20 Trading Days in any
consecutive 30-Trading Day period ending on the Trading Day prior to the Notice
Date; PROVIDED, that in no event shall the Company be entitled to cause a
Provisional Redemption to occur in accordance with Section 3.1(b) of the
Indenture unless, at the time such Provisional Redemption occurs, all of the
shares of Common Stock then issuable upon conversion of the Notes to be so
redeemed may then be sold in the open market by the holders of such Notes
(assuming such conversion) without requiring registration under the Securities
Act.
The Notes are also subject to redemption at the option of the Company
at any time on or after June 18, 2006, in whole or in part, upon not less than
20 nor more than 60 days' notice to the holders prior to the date fixed for
redemption at the following optional redemption prices (expressed as percentages
of the principal amount) for the twelve-month period beginning on June 18 of the
following years:
YEAR REDEMPTION PRICE
2006 102%
together with accrued and unpaid interest to (but excluding) the date fixed for
redemption; provided, however, that interest installments on Notes will be
payable to the holders of such Notes, or one or more Predecessor Notes, of
record at the close of business on the relevant record dates referred to on the
face hereof, all as provided in the Indenture.
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None of the Company, the Trustee, the Note Registrar or any
co-registrar shall be required to exchange or register a transfer of (a) any
Notes for a period of fifteen (15) days next preceding any selection of Notes to
be redeemed or (b) any Notes called for redemption or, if a portion of any Note
is selected or called for redemption, such portion thereof selected or called
for redemption or (c) any Notes surrendered for conversion or, if a portion of
any Note is surrendered for conversion, such portion thereof surrendered for
conversion or (d) any Notes, or a portion of any Note, surrendered for
repurchase (and not withdrawn) in connection with a Repurchase Event.
In any case where the due date for the payment of the principal of,
premium, if any, or interest on any Note or the last day on which a holder of a
Note has a right to convert his Note shall not be a Business Day, then payment
of principal, premium, if any, interest or delivery for conversion of such Note
need not be made on or by such date at such place but may be made on or by the
next succeeding Business Day, with the same force and effect as if made on the
date for such payment or the date fixed for redemption or repurchase, or by such
last day for conversion, and no interest shall accrue on the amount so payable
for the period after such date.
Subject to and upon compliance with the provisions of the Indenture,
the holder of this Note is entitled, at his option, at any time following the
original issue date of the Notes and on or before the close of business on the
Business Day immediately preceding June 18, 2007, or in case this Note or a
portion hereof is called for redemption or the holder hereof has exercised his
right to require the Company to repurchase this Note or such portion hereof,
then in respect of this Note until but (unless the Company defaults in making
the payment due upon redemption or repurchase, as the case may be) not after,
the close of business on Business Day immediately preceding the any optional
redemption date or Provisional Redemption Date or the date fixed for repurchase,
as the case may be, to convert this Note (or any portion of the principal amount
hereof that is an integral multiple of U.S. $1,000, PROVIDED, that the
unconverted portion of such principal amount is U.S. $1,000 or any integral
multiple of U.S. $1,000 in excess thereof) into fully paid and nonassessable
shares of Common Stock of the Company at an initial Conversion Price of $1.85
per share of Common Stock (or at the current adjusted Conversion Price if an
adjustment has been made as provided in the Indenture, including pursuant to
Section 15.5 of the Indenture) by surrender of this Note, duly endorsed and, in
case such surrender shall be made during the period from the close of business
on any record date next preceding any interest payment date to the opening of
business on such Interest Payment Date (except if this Note or portion thereof
has been called for redemption on a Provisional Redemption Date or optional
redemption date or is repurchasable on a date fixed for repurchase), also
accompanied by payment in New York Clearing House or other funds acceptable to
the Company of an amount equal to the interest payable on such interest payment
date on the principal amount of this Note then being converted, and also the
conversion notice hereon duly executed, to the Company at the Corporate Trust
Office of the Trustee, or at such other office or agency of the Company, subject
to any laws or regulations applicable thereto and subject to the right of the
Company to terminate the appointment of any Conversion Agent (as defined below)
as may be designated by it for such purpose in the Borough of Manhattan, The
City of New York, or at such other offices or agencies as the Company may
designate (each, a "Conversion Agent"), PROVIDED, HOWEVER, that if this Note or
portion hereof has been called for redemption on a
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Provisional Redemption Date or optional redemption date or is repurchasable on a
repurchase rate, then the holder of this Note on such record date will be
entitled to receive the interest accruing hereon from the interest payment date
next preceding the date of such conversion to such succeeding interest payment
date and the holder of this Note who converts this Note or a portion hereof
during such period shall not be required to pay such interest upon surrender of
this Note for conversion. Subject to the provisions of the preceding sentence,
no Cash payment or adjustment is to be made on conversion for interest accrued
hereon from the interest payment date next preceding the day of conversion, or
for dividends on the Common Stock issued on conversion hereof. The Company shall
thereafter deliver to the holder the fixed number of shares of Common Stock
(together with any Cash adjustment, as provided in the Indenture) into which
this Note is convertible and such delivery will be deemed to satisfy the
Company's obligation to pay the principal amount of this Note. No fractions of
shares or scrip representing fractions of shares will be issued on conversion,
but instead of any fractional interest (calculated to the nearest 1/100th of a
share) the Company shall pay a Cash adjustment as provided in the Indenture. The
Conversion Price is subject to adjustment as provided in the Indenture. In
addition, the Indenture provides that in case of certain consolidations or
mergers to which the Company is a party (other than a consolidation or merger
that does not result in any reclassification, conversion, exchange or
cancellation of the Common Stock) or the conveyance, transfer, sale or lease of
all or substantially all of the property and assets of the Company, the
Indenture shall be amended, without the consent of any holders of Notes, so that
this Note, if then outstanding, will be convertible thereafter, during the
period this Note shall be convertible as specified above, only into the kind and
amount of securities, Cash and other property receivable upon such
consolidation, merger, conveyance, transfer, sale or lease by a holder of the
number of shares of Common Stock of the Company into which this Note could have
been converted immediately prior to such consolidation, merger, conveyance,
transfer, sale or lease (subject to the provisions of, and as more explicitly
set forth in, the Indenture). No adjustment in the Conversion Price will be made
until such adjustment would require an increase or decrease of at least one
percent of such price, PROVIDED, that any adjustment that would otherwise be
made will be carried forward and taken into account in the computation of any
subsequent adjustment.
If a Repurchase Event occurs, the holder of this Note, at the holder's
option, shall have the right, in accordance with the provisions of the
Indenture, to require the Company to repurchase this Note (or any portion of the
principal amount hereof that is at least $1,000 or an integral multiple) for
Cash at a price equal to 105% of the principal amount thereof plus interest
accrued to the Repurchase Date. Whenever in this Note there is a reference, in
any context, to the principal of any Note as of any time, such reference shall
be deemed to include reference to the Repurchase Price payable in respect of
such Note to the extent that such Repurchase Price is, was or would be so
payable at such time, and express mention of the Repurchase Price in any
provision of this Note shall not be construed as excluding the Repurchase Price
so payable in those provisions of this Note when such express mention is not
made.
If the Company or any Restricted Subsidiary consummates an Asset Sale,
the Company shall when Excess Proceeds exceed $10,000,000 promptly commence a
pro rata offer to all Holders of Notes and all holders of other Indebtedness
that is PARI PASSU with the Notes
3
containing provisions similar to those set forth in the Indenture with respect
to offers to purchase or redeem with the proceeds of sales of assets (an "EXCESS
PROCEEDS OFFER") pursuant to Section 5.17 of the Indenture to purchase the
maximum principal amount of Notes and such other PARI PASSU Indebtedness that
may be purchased out of the Excess Proceeds at an offer price in Cash in an
amount equal to 100% of the principal amount thereof plus accrued and unpaid
interest, if any, thereon, to the date of purchase in accordance with the
procedures set forth in the Indenture. If the aggregate principal amount of
Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds
allocated for repurchase of Notes, the Trustee shall select the Notes to be
purchased on a pro rata basis. Holders of Notes that are the subject of an offer
to purchase will receive an Excess Proceeds Offer from the Company prior to any
related purchase date and may elect to have such Notes purchased by completing
the form entitled "Option of Holder to Elect Purchase" on the reverse of the
Notes.
Subject to certain conditions, the Company at any time may terminate
some of or all its obligations under the Notes and the Indenture if the Company
deposits with the Trustee money or U.S. Government Obligations for the payment
of principal of, premium, if any, and interest on the Notes to redemption or
maturity, as the case may be.
[The following paragraph shall appear in each Global Security:
In the event of a deposit or withdrawal of an interest in this Note,
including an exchange, transfer, redemption, repurchase or conversion of this
Note in part only, the Trustee, as custodian of the Depositary, shall make an
adjustment on its records to reflect such deposit or withdrawal in accordance
with the rules and procedures of The Depository Trust Company applicable to, and
as in effect at the time of, such transaction.]
[The following paragraph shall appear in each Note that is not a Global
Security:
In the event of redemption, repurchase or conversion of this Note in
part only, a new Note or Notes for the unredeemed, unrepurchased or unconverted
portion hereof will be issued in the name of the holder hereof.]
The indebtedness evidenced by this Note is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full in Cash of all senior indebtedness of the Company, and
this Note is issued subject to such provisions of the Indenture and the
Collateral Agency Agreement and the Intercreditor Agreement referred to therein
with respect thereto. Each holder of this Note, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes.
If an Event of Default shall occur and be continuing, the principal of
all the Notes, together with accrued interest to the date of declaration, may be
declared due and payable in the manner and with the effect provided in the
Indenture. Upon payment (i) of the amount of principal so declared due and
payable, together with accrued interest to the date of declaration, and (ii) of
interest on any overdue principal and, to the extent permitted by applicable
law,
4
overdue interest, all of the Company's obligations in respect of the payment of
the principal of and interest on the Notes shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the holders of the Notes under the Indenture at any
time by the Company and the Trustee with either (a) the written consent of the
holders of not less than a majority in principal amount of the Notes at the time
outstanding, or (b) by the adoption of a resolution, at a meeting of holders of
the Outstanding Notes at which a quorum is present, by the holders of at least
66-2/3% in aggregate principal amount of the Outstanding Notes represented and
entitled to vote at such meeting. The Indenture also contains provisions
permitting the holders of specified percentages in principal amount of the Notes
at the time outstanding, on behalf of the holders of all the Notes, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the holder of this Note shall be conclusive and binding upon such
holder and upon all future holders of this Note and of any Note issued in
exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note or such other Note.
As provided in and subject to the provisions of the Indenture, the
holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such holder shall have previously given the
Trustee written notice of a continuing Event of Default, the holders of not less
than 25% in principal amount of the outstanding Notes shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the holders of a majority in principal amount of
the outstanding Notes a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the holder of this Note for the enforcement of any payment of
principal hereof, premiums if any, or interest hereon on or after the respective
due dates expressed herein or for the enforcement of the right to convert this
Note as provided in the Indenture.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note at the times, places and rate, and in the coin or
currency, herein prescribed or to convert this Note as provided in the
Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable on the Note Register upon
surrender of this Note for registration of transfer at the Corporate Trust
Office of the Trustee or at such other office or agency of the Company as may be
designated by it for such purpose in the Borough of Manhattan, The City of New
York (which shall initially be an office or agency of the Trustee), or at such
other offices or agencies as the Company may designate, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note Registrar duly executed by, the holder thereof or his
attorney duly authorized in writing,
5
and thereupon one or more new Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees by the Note Registrar. No service charge shall be made for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to recover any tax or other governmental charge payable in
connection therewith, other than as provided in the Indenture.
Prior to due presentation of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered, as the owner thereof for all
purposes, whether or not such Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse for the payment of the principal (and premium, if any) or
interest on this Note and no recourse under or upon any obligation, covenant or
agreement of the Company in the Indenture or any indenture supplemental thereto
or in any Note, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, employee, agent,
officer or director or subsidiary, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, whether by virtue of any constitution, statute or
rule of law or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of consideration for
the issue hereof, expressly waived and released.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA
(WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF).
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
6
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT - _________________ Custodian _____________
(Minor) under Uniform Gifts to Minors Act _________
(State)
Additional abbreviations may also be used though not in the above list.
7
ELECTION OF HOLDER TO REQUIRE REPURCHASE
(1) Pursuant to Article 16 of the Indenture, the undersigned hereby
elects to have this Note repurchased by the Company.
(2) The undersigned hereby directs the Trustee or the Company to pay to
the undersigned an amount in Cash equal to 105% of the principal amount to be
repurchased (as set forth below), plus interest accrued to the Repurchase Date,
as provided in the Indenture.
Dated:
--------------------------------------
---------------------------------------------
---------------------------------------------
Signature(s)
Signature(s) must be guaranteed by an Eligible
Guarantor Institution with membership in an
approved signature guarantee program pursuant
to Rule 17Ad-15 under the Securities Exchange
Act of 1934.
---------------------------------------------
Signature Guaranteed
Principal amount to be repurchased (at least U.S. $1,000 or an integral multiple
thereof $1,000):
-------------------------------
Remaining principal amount following such repurchase:
-------------------------
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.
8
CONVERSION NOTICE
The undersigned holder of this Note hereby irrevocably exercises the
option to convert this Note, or any portion of the principal amount hereof
(which is U.S. $1,000 or an integral multiple of U.S. $1,000 in excess thereof,
PROVIDED, that the unconverted portion of such principal amount is U.S. $1,000
or any integral multiple of U.S. $1,000 in excess thereof) below designated,
into shares of Common Stock in accordance with the terms of the Indenture
referred to in this Note, and directs that such shares, together with a check in
payment for any fractional share and any Notes representing any unconverted
principal amount hereof, be delivered to and be registered in the name of the
undersigned unless a different name has been indicated below. If shares of
Common Stock or Notes are to be registered in the name of a Person other than
the undersigned, (a) the undersigned will pay all transfer taxes payable with
respect thereto and (b) signature(s) must be guaranteed by an Eligible Guarantor
Institution with membership in an approved signature guarantee program pursuant
to Rule 17Ad-15 under the Securities Exchange Act of 1934. Any amount required
to be paid by the undersigned on account of interest accompanies this Note.
Dated:
------------------------------ ----------------------------------
----------------------------------
Signature(s)
If shares or Notes are to be registered in the name of a Person other than the
holder, please print such Person's name and address:
---------------------------------------
Name
---------------------------------------
Address
---------------------------------------
Social Security or other Identification
Number, if any
---------------------------------------
Signature Guaranteed
If only a portion of the Notes is to be converted, please indicate:
1. Principal amount to be converted:
U.S. $ ___________
9
2. Principal amount and denomination of Notes representing unconverted
principal amount to be issued: Amount U.S. $___________ (U.S. $1,000 or
any integral multiple of U.S. $1,000 in excess thereof, PROVIDED, that
the unconverted portion of such principal amount is U.S. $1,000 or any
integral multiple of U.S. $1,000 in excess thereof)
10
FORM OF ASSIGNMENT
For value received ________________ hereby sell(s), assign(s) and
transfer(s) unto ________________ (Please insert social security or other
identifying number of assignee) the within Note, and hereby irrevocably
constitutes and appoints ____________________ as attorney to transfer the said
Note on the books of the Company, with full power of substitution in the
premises.
Dated:
---------------------------- --------------------------------------
--------------------------------------
Signature(s)
Signature(s) must be guaranteed by an
Eligible Guarantor Institution with
membership in an approved signature
guarantee program pursuant to Rule
17Ad-15 under the Securities Exchange
Act of 1934.
11
