EXHIBIT 4.4
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INDENTURE
among
XXXXXX XXXXXXX LTD.
As the Company
XXXXXX XXXXXXX LLC
As the Guarantor
and
BNY MIDWEST TRUST COMPANY,
as Trustee
6.50% CONVERTIBLE SUBORDINATED NOTES DUE 2007
Dated as of May 31, 2001
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CROSS-REFERENCE TABLE*
Trust Indenture Indenture
Act Section Section
----------- -----------
310(a)(1)........................................................ 5.11
(a)(2)...................................................... 5.11
(a)(3)...................................................... N/a
(a)(4)...................................................... N/a
(a)(5)...................................................... 5.11
(b)......................................................... 5.3; 5.5; 5.11
(c)......................................................... N/a
311(a)........................................................... 5.12
(b)......................................................... 5.12
(c)......................................................... N/a
312(a)........................................................... 2.10
(b)......................................................... 15.3
(c)......................................................... 15.3
313(a)........................................................... 5.7
(b)(1)...................................................... n/a
(b)(2)...................................................... 5.7
(c)......................................................... 5.7; 15.2
(d)......................................................... 5.7
314(a)(1), (2), (3).............................................. 9.4; 15.6
(a)(4)...................................................... 9.4; 9.5; 15.6
(b)......................................................... N/a
(c)(1)...................................................... 13.5
(c)(2)...................................................... 13.5
(c)(3)...................................................... N/a
(d)......................................................... N/a
(e)......................................................... 15.6
(f)......................................................... N/a
315(a)........................................................... 5.1(a)
(b)......................................................... 5.6; 15.2
(c)......................................................... 5.1(b)
(d)......................................................... 5.1(c)
(e)......................................................... 4.14
316(a)(last sentence)............................................ 2.13
(a)(1)(A)................................................... 4.5
(a)(1)(B)................................................... 4.4
i
(a)(2)...................................................... N/a
(b)......................................................... 4.7
(c)......................................................... 7.4
317(a)(1)........................................................ 4.8
(a)(2)...................................................... 4.9
(b)......................................................... 2.5
318(a)........................................................... 15.1
(b)......................................................... N/a
(c)......................................................... 15.1
------------------
"n/a" means not applicable.
* This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
Page
Article I DEFINITIONS AND INCORPORATION BY REFERENCE..........................1
Section 1.1 Definitions..................................................1
Section 1.2 Incorporation by Reference of Trust Indenture Act...........14
Section 1.3 Rules of Construction.......................................15
Article II THE SECURITIES....................................................15
Section 2.1 Title and Terms.............................................15
Section 2.2 Form of Securities..........................................17
Section 2.3 Legends.....................................................17
Section 2.4 Execution, Authentication, Delivery and
Dating of the Securities..................................23
Section 2.5 Registrar and Paying Agent..................................23
Section 2.6 Paying Agent to Hold Assets in Trust........................24
Section 2.7 General Provisions Relating to Transfer and Exchange........24
Section 2.8 Book-Entry Provisions for the Global Securities.............25
Section 2.9 Special Transfer Provisions.................................27
Section 2.10 Holder Lists................................................29
Section 2.11 Persons Deemed Owners.......................................29
Section 2.12 Mutilated, Destroyed, Lost or Stolen Securities.............29
Section 2.13 Treasury Securities.........................................30
Section 2.14 Temporary Securities........................................30
Section 2.15 Cancellation................................................31
Section 2.16 CUSIP Numbers...............................................31
Section 2.17 Defaulted Interest..........................................31
Article III SATISFACTION AND DISCHARGE.......................................32
Section 3.1 Satisfaction and Discharge of Indenture.....................32
Section 3.2 Deposited Monies to be Held in Trust........................33
Section 3.3 Return of Unclaimed Monies..................................33
Article IV DEFAULTS AND REMEDIES.............................................34
Section 4.1 Events of Default...........................................34
Section 4.2 Acceleration of Maturity; Rescission and Annulment..........35
Section 4.3 Other Remedies..............................................36
Section 4.4 Waiver of Past Defaults.....................................36
Section 4.5 Control by Majority.........................................37
Section 4.6 Limitation on Suit..........................................37
Section 4.7 Unconditional Rights of Holders to Receive
Payment and to Convert....................................38
Section 4.8 Collection of Indebtedness and Suits for
Enforcement by the Trustee................................38
Section 4.9 Trustee May File Proofs of Claim............................38
Section 4.10 Restoration of Rights and Remedies..........................39
Section 4.11 Rights and Remedies Cumulative..............................39
Section 4.12 Delay or Omission Not Waiver................................40
Section 4.13 Application of Money Collected..............................40
Section 4.14 Undertaking for Costs.......................................40
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Page
Section 4.15 Waiver of Stay or Extension Laws............................41
Article V THE TRUSTEE....................................................... 41
Section 5.1 Certain Duties and Responsibilities.........................41
Section 5.2 Certain Rights of Trustee...................................43
Section 5.3 Individual Rights of Trustee................................44
Section 5.4 Money Held in Trust.........................................44
Section 5.5 Trustee's Disclaimer........................................44
Section 5.6 Notice of Defaults..........................................44
Section 5.7 Reports by Trustee to Holders...............................44
Section 5.8 Compensation and Indemnification............................45
Section 5.9 Replacement of Trustee......................................45
Section 5.10 Successor Trustee by Merger, Etc............................46
Section 5.11 Corporate Trustee Required; Eligibility.....................46
Section 5.12 Collection of Claims Against the Company....................47
Article VI CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE..............47
Section 6.1 Company and Guarantor May Consolidate, Etc.,
Only on Certain Terms.....................................47
Section 6.2 Successor Corporation Substituted...........................48
Article VII AMENDMENTS, SUPPLEMENTS AND WAIVERS..............................49
Section 7.1 Without Consent of Holders of Securities....................49
Section 7.2 With Consent of Holders of Securities.......................50
Section 7.3 Compliance with Trust Indenture Act.........................51
Section 7.4 Revocation of Consents and Effect of Consents or Votes......51
Section 7.5 Notation on or Exchange of Securities.......................51
Section 7.6 Trustee to Sign Amendment, Etc..............................52
Article VIII MEETING OF HOLDERS OF SECURITIES................................52
Section 8.1 Purposes for Which Meetings May Be Called...................52
Section 8.2 Call Notice and Place of Meetings...........................52
Section 8.3 Persons Entitled to Vote at Meetings........................53
Section 8.4 Quorum; Action..............................................53
Section 8.5 Determination of Voting Rights; Conduct and
Adjournment of Meetings...................................54
Section 8.6 Counting Votes and Recording Action of Meetings.............54
Article IX COVENANTS.........................................................55
Section 9.1 Payment of Principal, Premium and Interest..................55
Section 9.2 Maintenance of Offices or Agencies..........................55
Section 9.3 Corporate Existence.........................................56
Section 9.4 Reports.....................................................56
Section 9.5 Compliance Certificate......................................56
Section 9.6 Resale of Certain Securities................................57
Article X REDEMPTION OF SECURITIES...........................................57
Section 10.1 Optional Redemption.........................................57
Section 10.2 Notice to Trustee...........................................58
Section 10.3 Selection of Securities to Be Redeemed......................58
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Page
Section 10.4 Notice of Redemption........................................58
Section 10.5 Effect of Notice of Redemption..............................59
Section 10.6 Deposit of Redemption Price.................................60
Section 10.7 Securities Redeemed in Part.................................60
Article XI REPURCHASE AT THE OPTION OF A HOLDER..............................60
Section 11.1 Repurchase Rights...........................................60
Section 11.2 Notices; Method of Exercising Repurchase Right, Etc.........61
Article XII CONVERSION OF SECURITIES.........................................63
Section 12.1 Conversion Right and Conversion Price.......................63
Section 12.2 Exercise of Conversion Right................................64
Section 12.3 Fractions of Common Shares..................................65
Section 12.4 Adjustment of Conversion Price..............................65
Section 12.5 Notice of Adjustments of Conversion Price...................74
Section 12.6 Notice Prior to Certain Actions.............................74
Section 12.7 Company to Reserve Common Shares............................75
Section 12.8 Covenant as to Common Shares................................75
Section 12.9 Taxes on Conversions........................................75
Section 12.10 Cancellation of Converted Securities........................76
Section 12.11 Effect of Reclassification, Consolidation, Merger or Sale...76
Section 12.12 Responsibility of Trustee for Conversion Provisions.........77
Article XIII GUARANTEE.......................................................77
Section 13.1 Guarantee...................................................78
Section 13.2 Execution and Delivery of Guarantee.........................79
Section 13.3 Guarantee Obligations Subordinated to
Guarantor Senior Debt.......................................80
Section 13.4 Payment Over of Proceeds upon Dissolution, etc.,
of the Guarantor............................................80
Section 13.5 Suspension of Guarantee Obligations When
Guarantor Senior Debt in Default............................81
Section 13.6 Waiver of Subrogation.......................................82
Section 13.7 Guarantee Subordination Provisions Solely To
Define Relative Rights....................................82
Section 13.8 Trustee To Effectuate Subordination of
Guarantee Obligations.....................................83
Section 13.9 No Waiver of Guarantee Subordination Provisions.............83
Section 13.10 Guarantor To Give Notice to Trustee.........................84
Section 13.11 Reliance on Judicial Order or Certificate of Liquidating
Agent Regarding Dissolution, etc., of Guarantor...........85
Section 13.12 Rights of Trustee as a Holder of Guarantor Senior Debt;
Preservation of Trustee's Rights..........................85
Section 13.13 Article Thirteen Applicable to Paying Agents................85
Section 13.14 No Suspension of Remedies Subject to Rights of
Holders of Guarantor Senior Debt..........................85
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Page
Section 13.15 Trustee's Relation to Guarantor Senior Debt.................86
Section 13.16 Subrogation.................................................86
Article XIV SUBORDINATION OF NOTES...........................................87
Section 14.1 Notes Subordinate to Senior Debt............................87
Section 14.2 Payment Over of Proceeds upon Dissolution, etc..............87
Section 14.3 Suspension of Payment When Designated Senior Debt
is in Default.............................................88
Section 14.4 Trustee's Relation to Senior Debt...........................89
Section 14.5 Subrogation to Rights of Holders of Senior Debt.............89
Section 14.6 Provisions Solely To Define Relative Rights.................90
Section 14.7 Trustee To Effectuate Subordination.........................90
Section 14.8 No Waiver of Subordination Provisions.......................91
Section 14.9 Notice to Trustee...........................................91
Section 14.10 Reliance on Judicial Order or Certificate of
Liquidating Agent.........................................92
Section 14.11 Rights of Trustee as a Holder of Senior Debt;
Preservation of Trustee's Rights..........................92
Section 14.12 Article Applicable to Paying Agents.........................92
Section 14.13 No Suspension of Remedies...................................93
Article XV OTHER PROVISIONS OF GENERAL APPLICATION...........................93
Section 15.1 Trust Indenture Act Controls................................93
Section 15.2 Notices.....................................................93
Section 15.3 Communication by Holders with Other Holders.................94
Section 15.4 Acts of Holders of Securities...............................94
Section 15.5 Certificate and Opinion as to Conditions Precedent..........95
Section 15.6 Statements Required in Certificate or Opinion...............96
Section 15.7 Effect of Headings and Table of Contents....................96
Section 15.8 Successors and Assigns......................................96
Section 15.9 Separability Clause.........................................96
Section 15.10 Benefits of Indenture.......................................96
Section 15.11 Section Governing Law.......................................96
Section 15.12 Submission to Jurisdiction; Consent to Service; Waivers.....97
Section 15.13 Counterparts................................................97
Section 15.14 Legal Holidays..............................................97
Section 15.15 Recourse Against Others.....................................97
vi
EXHIBITS
EXHIBIT A:.............................................Form of Security A-1
EXHIBIT B:.............................................Form of Guarantee B-1
vii
INDENTURE, dated as of May 31, 2001, among (i) Xxxxxx Xxxxxxx Ltd., a
company duly organized and existing under the laws of Bermuda, having its
principal office at Xxxxxxxxxx Xxxxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx 00000-0000
(the "Company"), (ii) Xxxxxx Xxxxxxx LLC, a Delaware limited liability company
having its principal office at Xxxxxxxxxx Xxxxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx
00000-0000 (the "Guarantor"), and (iii) BNY Midwest Trust Company, an Illinois
banking corporation, not in its individual capacity but solely as Trustee (the
"Trustee"), having its principal corporate trust office at Corporate Trust
Division 0 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, XX 00000, attn: Corporate Trust
Administration.
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 6.50%
Convertible Subordinated Notes due 2007 (herein called the "Securities") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
All things necessary to make the Securities, when the Securities are
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, and to make this
Indenture a valid and legally binding agreement of the Company, in accordance
with their and its terms, have been done.
RECITALS OF THE GUARANTOR
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide, with respect to each Security issued hereunder, the
Guarantee provided for herein.
All things necessary to constitute this Indenture and the Guarantee
herein a valid and legally binding agreement of the Guarantor, in accordance
with their terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
Article I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
1
For all purposes of this Indenture and the Securities, the following
terms are defined as follows:
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 15.4(a).
"Additional Amounts" means all amounts, if any, payable pursuant to
Section 3 of the Registration Rights Agreement.
"Adjusted Interest Rate" means, with respect to any Reset Transaction,
the rate per annum that is the arithmetic average of the rates quoted by
two Reference Dealers selected by the Company as the rate at which interest
on the Securities should accrue so that the fair market value, expressed in
dollars, of a Security immediately after the later of:
(1) the public announcement of such Reset Transaction; or
(2) the public announcement of a change in dividend policy in
connection with such Reset Transaction;
will equal the average Trading Price of a Security for the 20 Trading Days
preceding the date of such public announcement; provided that the Adjusted
Interest Rate shall not be less than 6.50% per annum.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power
to direct 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.
"Agent Members" has the meaning stated in Section 2.8.
"Bankruptcy Law" means Chapter 11 of Title 11 of the United States
Code or any similar federal or state law for the relief of debtors.
"Board of Directors" means the board of managers of the Company or any
committee of that board empowered to act for it with respect to this
Indenture.
"Board Resolution" means a resolution duly adopted by a Board of
Directors or such committee of the Board of Directors as officers of the
Company to which authority to act on behalf of the Board of Directors has
been delegated, a copy of which, certified by the Secretary or an Assistant
Secretary of the Company, to be in full force and effect on the date of
such certification, shall have been delivered to the Trustee.
"Business Day", when used with respect to (i) any Place of Payment or
Place of Conversion, means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not
2
a day on which banking institutions in that Place of Payment or Place of
Conversion, as the case may be, are authorized or obligated by law to
close, and (ii) the Trustee, each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the city and
state in which the Corporate Trust Office is located are authorized by law
to close.
"Change of Control" means the occurrence of any of the following after
the original issuance of the Securities:
(3) the acquisition by any Person, including any syndicate or
group deemed to be a "person" under Section 13(d)(3) of the Exchange
Act, of beneficial ownership, directly or indirectly, through a
purchase, merger or other acquisition transaction or series of
transactions of shares of the Company's capital stock entitling that
Person to exercise 50% or more of the total voting power of all shares
of the Company's capital stock entitled to vote generally in elections
of directors, other than any acquisition by the Company, any of its
subsidiaries, or any of its employee benefit plans (except that such
Person shall be deemed to have beneficial ownership of all securities
that such Person has the right to acquire, whether such right is
currently exercisable or is exercisable only upon the occurrence of a
subsequent condition); or
(4) the first day on which a majority of the members of the board
of directors of the Company are not continuing directors or directors
nominated by continuing directors; or
(5) any consolidation or merger of the Company with or into any
other Person, any merger of another Person into the Company, or any
conveyance, transfer, sale, lease or other disposition of all or
substantially all of the properties and assets of the Company to
another Person, other than in each case (i) any such transaction (x)
that does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of capital stock of the Company and
(y) pursuant to which holders of capital stock of the Company
immediately prior to such transaction have the entitlement to
exercise, directly or indirectly, 50% or more of the total voting
power of all shares of capital stock of the Company entitled to vote
generally in the election of directors of the continuing or surviving
Person immediately after such transaction; or (ii) any merger solely
for the purpose of changing the jurisdiction of incorporation and
resulting in a reclassification, conversion or exchange of outstanding
shares of common shares solely into shares of common shares of the
surviving entity.
provided, however, that a Change of Control shall not be deemed to have
occurred if (A) at least 90% of the consideration in the transaction or
transactions constituting a Change of Control consists of securities traded
or to be traded immediately following such Change of Control on a U.S.
national securities exchange or the Nasdaq National Market and, as a result
of such transaction or transactions, the Securities become convertible
solely into such securities; or (B) the Trading Price per share of Common
3
Shares for any five Trading Days within the period of 10 consecutive
Trading Days ending immediately after the later of the Change of Control or
the public announcement of the Change of Control, in the case of a Change
of Control described in clause (1) of this definition of Change of Control,
or the period of 10 consecutive Trading Days ending immediately before the
Change of Control, in the case of a Change of Control described in clause
(2) of this definition of Change of Control, shall equal or exceed 110% of
the Conversion Price of the Securities in effect on each such Trading Day.
As used in this definition, the term "beneficial ownership" shall have the
same meaning as such term has in Rule 13d-3 promulgated by the SEC under
the Exchange Act, and the term "Person" shall include any syndicate or
group which would be deemed to be a "person" under Section 13(d)(3) of the
Exchange Act.
"Clearstream" means Clearstream Banking, societe anonyme (formerly
Cedelbank).
"Closing Date" means May 31, 2001 or such later date on which the
Securities may be delivered pursuant to the Purchase Agreement.
"Common Shares" means any and all equity securities 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; provided, however, that shares issuable on
conversion of Securities shall include only common shares, $1.00 par value,
of the Company 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, however, that
if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from
all such reclassifications bears to the total number of shares of all such
classes resulting from all such reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Notice" has the meaning specified in Section 11.2.
"Company Order" means a written order signed in the name of the
Company by both (1) the Chairman of the Board, the Chief Executive Officer,
the President or a Vice President and (2) so long as not the same as the
officer signing pursuant to clause (1), the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Secretary or the Assistant
Secretary of the Company, and delivered to the Trustee.
4
"Conversion Agent" means any Person authorized by the Company to
convert Securities in accordance with Article 12.
"Conversion Price" has the meaning specified in Section 12.1.
"Corporate Trust Office" means for purposes of presentation or
surrender of Securities for payment, registration, transfer, exchange or
conversion or for service of notices or demands upon the Company or for any
other purpose of this Indenture, the office of the Trustee located in
Chicago, Illinois at which at any particular time its corporate trust
business shall be administered (which at the date of this Indenture is
located at Chicago, Illinois).
"corporation" means corporations, associations, limited liability
companies, companies and business trusts.
"Current Market Price" has the meaning set forth in Section 12.4(g).
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means an event which is, or after notice or lapse of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.17.
"Depositary" means The Depository Trust Company, its nominees and
their respective successors.
"Designated Guarantor Senior Debt" means the Senior Bank Debt and
other Guarantor Senior Debt permitted to be incurred the principal amount
of which is $25 million or more at the time of the designation of such
Senior Debt as "Designated Guarantor Senior Debt" by the Guarantor in a
written instrument delivered to the Trustee.
"Designated Senior Debt" means Senior Debt of the Company permitted to
be incurred the principal amount of which is $25 million or more at the
time of the designation of such Senior Debt as "Designated Senior Debt" by
the Company in a written instrument delivered to the Trustee.
"Dividend Yield" on any security for any period means the dividends
paid or proposed to be paid pursuant to an announced dividend policy on
such security for such period divided by, if with respect to dividends paid
on such security, the average Trading Price of such security during such
period and, if with respect to dividends proposed to be paid on such
security, the Trading Price of such security on the effective date of the
related Reset Transaction.
5
"Dollar," "U.S. Dollar" or "U.S. $" means a dollar or other equivalent
unit in such coin or currency of the United States as at the time shall be
legal tender for the payment of public and private debts.
"Euroclear" means Euroclear Bank S.A/N.V., as operator of the
Euroclear System.
"Event of Default" has the meaning specified in Section 4.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expiration Time" has the meaning specified in Section 12.4(f).
"fair market value" has the meaning set forth in Section 12.4(g).
"Global Security" has the meaning specified in Section 2.2(b).
"Guarantee" means the guarantee of the Guarantor endorsed on the
Securities and shall include the guarantee set forth in Section 13.1.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument.
"Guarantor Senior Debt" means the principal of, premium, if any,
interest (including all interest accruing subsequent to the commencement of
any bankruptcy or similar proceeding, whether or not a claim for
post-petition interest is allowable as a claim in any such proceeding) and
rent payable on or termination payment with respect to or in connection
with, and all fees, costs, expenses and other amounts accrued or due on or
in connection with, the Indebtedness of the Guarantor, including without
limitation Indebtedness under (i) the Senior Bank Debt, (ii) Xxxxxxx
Facility Debt; and (iii) the Senior Notes, whether outstanding on the date
of this Indenture or subsequently created, incurred, assumed, guaranteed or
in effect guaranteed by the Guarantor (including all deferrals, renewals,
extensions or refundings of, or amendments, modifications or supplements
to, the foregoing), unless in the case of any particular Indebtedness, the
instrument creating or evidencing such Indebtedness or the assumption or
guarantee thereof expressly provides that the Indebtedness shall not be
senior in right of payment to the Securities or expressly provides that
such Indebtedness ranks pari passu with or junior to the Securities;
provided, however, the term "Guarantor Senior Debt" does not include (i)
the Indebtedness of the Guarantor to any of its Subsidiaries, including
without limitation, Indebtedness pursuant to those certain 9.00% junior
subordinated notes due January 15, 2029; (ii) the guarantee of the
Guarantor in respect of the 9.00% Preferred Securities of FW Preferred
Capital Trust I; or (iii) any other Indebtedness of the Guarantor, which by
its terms ranks junior to or pari passu with the Guarantee.
"Holder", when used with respect to any Security, including any Global
Security, means the Person in whose name the Security is registered in the
Register.
6
"Indebtedness" of any Person means, without duplication:
(1) all indebtedness, obligations and other liabilities (contingent
or otherwise) of that Person for borrowed money (including
obligations in respect of overdrafts, foreign exchange contracts,
currency exchange agreements, interest rate protection
agreements, and any loans or advances from banks, whether or not
evidenced by notes or similar instruments) or evidenced by bonds,
notes, notes or other instruments for the payment of money, or
incurred in connection with the acquisition of any property,
services or assets (whether or not the recourse of the lender is
to the whole of the assets of such Person or to only a portion
thereof), other than any account payable or other accrued current
liability or obligation to trade creditors incurred in the
ordinary course of business in connection with the obtaining of
materials or services;
(2) all reimbursement obligations and other liabilities (contingent
or otherwise) of that Person with respect to letters of credit,
bank guarantees, bankers' acceptances, surety bonds, performance
bonds or other guaranty of contractual performance;
(3) all obligations and liabilities (contingent or otherwise) in
respect of (A) leases of such Person required, in conformity with
generally accepted accounting principles, to be accounted for as
capitalized lease obligations on the balance sheet of such
Person, and (B) any lease or related documents (including a
purchase agreement) in connection with the lease of real property
which provides that such Person is contractually obligated to
purchase or cause a third party to purchase the leased property
and thereby guarantee a minimum residual value of the leased
property to the landlord and the obligations of such Person under
such lease or related document to purchase or to cause a third
party to purchase the leased property;
(4) all obligations of such Person (contingent or otherwise) with
respect to an interest rate or other swap, cap or collar
agreement or other similar instrument or agreement or foreign
currency hedge, exchange, purchase or similar instrument or
agreement;
(5) all direct or indirect guaranties or similar agreements by that
Person in respect of, and obligations or liabilities (contingent
or otherwise) of that Person to purchase or otherwise acquire or
otherwise assure a creditor against loss in respect of,
indebtedness, obligations or liabilities of another Person of the
kind described in clauses (1) through (4);
(6) any indebtedness or other obligations described in clauses (1)
through (4) secured by any mortgage, pledge, lien or other
encumbrance existing on property which is owned or held by such
Person, regardless of whether the
7
indebtedness or other obligation secured thereby shall have been
assumed by such Person; and
(7) any and all deferrals, renewals, extensions and refundings of, or
amendments, modifications or supplements to, any indebtedness,
obligation or liability of the kind described in clauses (1)
through (6).
"Indemnitees" has the meaning specified in Section 5.8.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof.
"Initial Purchasers" mean Xxxxxx Brothers Inc., Banc of America
Securities LLC, and First Union Securities, Inc.
"Interest Payment Date" means June 1 and December 1 of each year;
provided, however, that if any such date is not a Business Day, the
Interest Payment Date shall be the next succeeding Business Day.
"Interest Rate" means, (a) prior to the occurrence of any Reset
Transaction, 6.50% per annum, and (b) following the occurrence of a Reset
Transaction, the Adjusted Interest Rate related to such Reset Transaction
to, but not including the effective date of any succeeding Reset
Transaction.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
"Maturity" means the date on which the principal of a Security becomes
due and payable as therein or herein provided, whether at the Stated
Maturity or by acceleration, conversion, call for redemption, exercise of a
Repurchase Right or otherwise.
"Nasdaq National Market" means the National Association of Securities
Dealers Automated Quotation National Market or any successor national
securities exchange or automated over-the-counter trading market in the
United States.
"Non-payment Default" means, for purposes of Article Fourteen hereof,
any default (other than a Payment Default) with respect to any Designated
Senior Debt of the Company or the Guarantor pursuant to which the maturity
thereof may be accelerated.
"Officer" means, with respect to any Person. the Chairman of the
Board, the President, the Chief Financial Officer, the Treasurer, any
Assistant Treasurer, any Vice President, the Secretary or any Assistant
Secretary or any other officer designated by the Board of Directors serving
in a similar capacity.
"Officers' Certificate" means, with respect to the Company, a
certificate signed by both (1) the Chairman of the Board, the President or
a Vice President and (2) so long as not the same as the officer signing
pursuant to clause (1), the Chief Financial Officer, the
8
Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel to the Company (and may include directors or employees of the
Company).
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except Securities:
(6) previously canceled by the Trustee or delivered to the
Trustee for cancellation;
(7) for the payment or redemption of which money in the necessary
amount has been previously deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities; provided, however, that if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture;
(8) in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company; and
(4) converted into Common Shares in accordance with Section 12.2.
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities are present at a meeting of
Holders of Securities for quorum purposes or have consented to or voted in
favor of any request, demand, authorization, direction, notice, consent,
waiver, amendment or modification hereunder, Securities held for the
account of the Company or of any of its affiliates shall be disregarded and
deemed not to be Outstanding, except that in determining whether the
Trustee shall be protected in making such a determination or relying upon
any such quorum, consent or vote, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned that have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any Affiliate of the
Company.
"Paying Agent" has the meaning specified in Section 2.5.
"Payment Default" means any default in the payment when due (whether
at Stated Maturity, by acceleration or otherwise) of principal or interest
on, or of unreimbursed amounts under drawn letters of credit or fees
relating to letters of credit constituting, any Senior Debt or Guarantor
Senior Debt, as applicable, of the Company or the Guarantor.
9
"Person" means any individual, corporation, partnership, joint
venture, joint-stock company, trust, estate, unincorporated organization or
government or any agency or political subdivision thereof.
"Physical Securities" means Securities issued in definitive, fully
registered form without interest coupons, substantially in the form of
Exhibit A hereto, with the applicable legends as provided in Section 2.3.
"Place of Conversion" means any city in which any Conversion Agent is
located.
"Place of Payment" means any city in which any Paying Agent is
located.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 2.12 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed
to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"Purchase Agreement" means the Purchase Agreement, dated as of May 22,
2001, between the Company and the Initial Purchasers.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Record Date" means either a Regular Record Date or a Special Record
Date, as the case may be; provided that, for purposes of Section 12.4,
Record Date has the meaning specified in 12.4(g).
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which such Security is to be redeemed pursuant
to this Indenture.
"Reference Dealer" means a dealer engaged in the trading of
convertible securities.
"Reference Period" has the meaning set forth in Section 12.4(d).
"Register" has the meaning specified in Section 2.5.
"Registrar" has the meaning specified in Section 2.5.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of May 31, 2001, among the Company, the Guarantor and
the Initial Purchasers.
"Regular Record Date" for the interest on the Securities (including
Additional Amounts, if any) payable means the May 15 (whether or not a
Business Day) next
10
preceding an Interest Payment Date on the June 1 and the November 15
(whether or not a Business Day) next preceding an Interest Payment Date on
December 1.
"Regulation S" means Regulation S under the Securities Act (including
any successor regulation thereof), as the same may be amended from time to
time.
"Repurchase Date" has the meaning specified in Section 11.1.
"Repurchase Price" has the meaning specified in Section 11.1.
"Repurchase Right" has the meaning specified in Section 11.7.
"Reset Transaction" means a merger, consolidation or statutory share
exchange to which the issuer of the shares of Common Shares into which the
Securities are then convertible is a party, a sale of all or substantially
all the assets of that entity, a recapitalization of those shares of Common
Shares or a distribution described in Section 12.4(d), after the effective
date of which transaction or distribution the Securities would be
convertible into:
(9) shares of an entity the common shares of which had a Dividend
Yield for the four fiscal quarters of such entity immediately
preceding the public announcement of such transaction or distribution
that was more than 2.5 percentage points higher then the Dividend
Yield on the Common Shares for the four fiscal quarters preceding the
public announcement of such transaction or distribution; or
(10) shares of an entity that announces a dividend policy prior
to the effective date of such transaction or distribution which
policy, if implemented, would result in a Dividend Yield on such
entity's Common Shares for the next four fiscal quarters that would
result in such a 2.5 percentage points increase.
"Responsible Officer" when used with respect to the Trustee, means any
officer assigned by it to administer corporate trust matters and who shall
have the direct responsibility for the administration of this Indenture.
"Restricted Securities" means the Securities defined as such in
Section 2.3.
"Restricted Securities Legend" has the meaning set forth in Section
2.3.
"Xxxxxxx Facility Debt" means Indebtedness of the Guarantor under that
certain Exit Funding Agreement dated as of October 15, 1999.
"Rule 144" means Rule 144 under the Securities Act (including any
successor rule thereof), as the same may be amended from time to time.
"Rule 144A" means Rule 144A as promulgated under the Securities Act
(including any successor rule thereof), as the same may be amended from
time to time.
11
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning ascribed to it in the first paragraph
under the caption "Recitals of the Company".
"Senior Bank Debt" means Indebtedness of the Company under that
certain Second Amended and Restated Revolving Credit Agreement dated as of
May 25, 2001, among Xxxxxx Xxxxxxx Corporation, the Guarantors signatory
thereto, the Lenders signatory thereto, and Bank of America, N.A., as
administrative agent, as amended from time to time.
"Senior Debt" means the principal of, premium, if any, interest
(including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for postpetition
interest is allowable as a claim in any such proceeding) and rent payable
on or termination payment with respect to or in connection with, and all
fees, costs, expenses and other amounts accrued or due on or in connection
with, the Indebtedness of the Company, including without limitation,
Indebtedness under (i) its guarantees in respect of the Senior Bank Debt;
and (ii) its guarantee in respect of the Senior Notes, whether outstanding
on the date of this Indenture or subsequently created, incurred, assumed,
guaranteed or in effect guaranteed by the Company (including all deferrals,
renewals, extensions or refundings of, or amendments, modifications or
supplements to, the foregoing), unless in the case of any particular
Indebtedness, the instrument creating or evidencing such Indebtedness or
the assumption or guarantee thereof expressly provides that the
Indebtedness shall not be senior in right of payment to the Securities or
expressly provides that such Indebtedness ranks pari passu with or junior
to the Securities. However, the term "Senior Debt" does not include (i) the
Indebtedness of the Company to any of its subsidiaries; or (ii) any
Indebtedness of the Company which by its terms ranks junior to or pari
passu with the Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" has the meaning specified in the
Registration Rights Agreement.
"Senior Notes" means those certain 6.75% Notes due November 15, 2005
issued pursuant to that certain indenture, dated as of November 15, 1995
between Xxxxxx Xxxxxxx Corporation and Xxxxxx Trust and Savings Bank.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 2.17.
"Stated Maturity" means the date specified in any Security as the
fixed date for the payment of principal on such Security or on which an
installment of interest (including Additional Amounts, if any) on such
Security is due and payable.
12
"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 only, "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.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S. Code
Section 77aaa-77bbbb), as in effect on the date of this Indenture;
provided, however, that in the event the TIA is amended after such date,
"TIA" means, to the extent such amendment is applicable to this Indenture,
the Trust Indenture Act of 1939, as so amended, or any successor statute.
"Trading Day" means:
(11) if the applicable security is listed or admitted for trading
on the New York Stock Exchange, a day on which the New York Stock
Exchange is open for business;
(12) if the applicable security is not listed or admitted for
trading on the New York Stock Exchange but is quoted on the Nasdaq
National Market, a day on which trades may be made on the Nasdaq
National Market;
(13) if the applicable security is not so listed or admitted for
trading on the New York Stock Exchange and not quoted on the Nasdaq
National Market, a day on which the principal U.S. securities exchange
on which the securities are listed is open for business; or
(14) 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.
"Trading Price" of a security on any date of determination means:
(15) the closing sale price (or, if no closing sale price is
reported, the last reported sale price) of that security (regular way)
on the New York Stock Exchange on that date;
(16) if that security is not listed on the New York Stock
Exchange on that date, the closing sale price as reported on that date
in the composite transactions for the principal U.S. securities
exchange on which that security is listed;
(17) if that security is not so listed on a U.S. national or
regional securities exchange, the closing sale price as reported on
that date by the Nasdaq National Market;
13
(18) if that security is not so reported, the last price quoted
by Interactive Data Corporation for that security on that date or, if
Interactive Data Corporation is not quoting such price, a similar
quotation service selected by the Company;
(19) if that security is not so quoted, the average of the
mid-point of the last bid and ask prices for that security on that
date from at least two dealers recognized as market-makers for that
security selected by the Company for this purpose; or
(20) if that security is not so quoted, the average of that last
bid and ask prices for that security on that date from a dealer
engaged in the trading of convertible securities selected by the
Company for this purpose.
"Transfer Agent" means any Person, which may be the Company or a
Subsidiary, authorized by the Company to exchange or register the transfer
of Securities.
"Trigger Event" has the meaning specified in Section 12.4(d).
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, not in its individual capacity but solely as
Trustee hereunder, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the U.S. for the payment of which its full faith and credit
is pledged or (ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the U.S. the timely payment of
which is unconditionally guaranteed as a full faith and credit obligation
by the U.S., that, in either case under clause (i) or (ii), are not
callable or redeemable at the option of the issuer thereof.
"Vice President", when used with respect to the Company, means any
vice president, whether or not designated by a number or a word or words
added before or after the title "vice president".
Section 1.2 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
14
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Securities means the Company.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
Section 1.3 Rules of Construction.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with accounting principles
generally accepted in the United States prevailing at the time of any
relevant computation hereunder; and
(3) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Article II
THE SECURITIES
Section 2.1 Title and Terms.
(a) The Securities shall be known and designated as the "6.50%
Convertible Subordinated Notes due 2007" of the Company. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is limited to $240,000,000, except for Securities authenticated and
delivered upon registration of, transfer of, or in exchange for, or in lieu of
other Securities pursuant to Section 2.7, 2.8, 2.9, 2.12, 7.5, 10.7, 11.1 or
Securities converted into Common Shares pursuant to Section 12.2. The Securities
shall be issuable in denominations of $1,000 or integral multiples thereof.
(b) The Securities shall mature on June 1, 2007, unless earlier
redeemed at the option of the Company pursuant to Article 10, repurchased by the
Company at the option of the Holder pursuant to Article 11 or converted by the
Holder pursuant to Article 12.
(c) Interest on the Securities shall accrue from May 31, 2001 at the
Interest Rate until the principal of the Securities is paid or made available
for payment. Interest shall be payable semiannually in arrears on each Interest
Payment Date.
15
(d) Interest on the Securities shall be computed (i) for any full
semi-annual period for which a particular Interest Rate is applicable, on the
basis of a 360-day year of twelve 30-day months and (ii) for any period for
which a particular Interest Rate is applicable for less than a full semiannual
period for which interest is calculated, on the basis of a 30-day month and, for
such periods of less than a month, the actual number of days elapsed over a
30-day month. For purposes of determining the Interest Rate, the Trustee may
assume that a Reset Transaction has not occurred unless the Trustee has received
an Officers' Certificate stating that a Reset Transaction has occurred and
specifying the Adjusted Interest Rate then in effect.
(e) A Holder of any Security at the Registrar's close of business on a
Regular Record Date shall be entitled to receive interest (including Additional
Amounts, if any) on such Security on the corresponding Interest Payment Date. A
Holder of any Security which is converted after the close of business on a
Regular Record Date and prior to the corresponding Interest Payment Date (other
than any Security whose Maturity is prior to such Interest Payment Date) shall
be entitled to receive interest (including Additional Amounts, if any) on the
principal amount of such Security, notwithstanding the conversion of such
Security prior to such Interest Payment Date. However, any such Holder which
surrenders any such Security for conversion during the period beginning at the
Registrar's close of business on such Regular Record Date and ending with the
opening of business on the corresponding Interest Payment Date shall be required
to pay the Company an amount equal to the interest (including Additional
Amounts, if any) on the principal amount of such Security so converted, which is
payable by the Company to such Holder on such Interest Payment Date, at the time
such Holder surrenders such Security for conversion. Notwithstanding the
foregoing, any such Holder which surrenders for conversion any Security which
has been called for redemption by the Company in a notice of redemption given by
the Company pursuant to Section 10.4 shall be entitled to receive (and retain)
such interest (including Additional Amounts, if any) and need not pay the
Company an amount equal to the interest (including Additional Amounts, if any)
on the principal amount of such Security so converted at the time such Holder
surrenders such Security for conversion.
(f) Principal of, and premium, if any, and interest on, Global
Securities shall be payable to the Depositary in immediately available funds.
(g) Principal and premium, if any, on Physical Securities shall be
payable at the office or agency of the Company maintained for such purpose,
initially the Corporate Trust Office of the Trustee. Interest (including
Additional Amounts, if any) on Physical Securities will be payable by (i) U.S.
Dollar check drawn on a bank in The City of New York mailed to the address of
the Person entitled thereto as such address shall appear in the Register, or
(ii) upon application to the Registrar not later than the relevant Record Date
by a Holder of an aggregate principal amount of Securities in excess of
$5,000,000, wire transfer in immediately available funds, which application
shall remain in effect until the Holder notifies, in writing, the Registrar to
the contrary.
(h) The Securities shall be redeemable at the option of the Company as
provided in Article 10.
(i) The Securities shall be repurchaseable by the Company at the
option of Holders as provided in Article 11.
16
(j) The Securities shall be convertible at the option of the Holders
as provided in Article 12.
Section 2.2 Form of Securities.
(a) Except as otherwise provided pursuant to this Section 2.2, the
Securities are issuable in fully registered form without coupons in
substantially the form of Exhibit A hereto, with such applicable legends as are
provided for in Section 2.3. The Securities are not issuable in bearer form. The
terms and provisions contained in the form of Security shall constitute, and are
hereby expressly made, a part of this Indenture and to the extent applicable,
the Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. Any of the
Securities 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 Securities may be listed or designated for
issuance, or to conform to usage.
(b) The Securities are being offered and sold by the Company pursuant
to the Purchase Agreement. Securities offered and sold (i) to QIBs in accordance
with Rule 144A and (ii) in reliance on Regulation S, each as provided in the
Purchase Agreement, shall be issued initially in the form of one or more
permanent global Securities in fully registered form without interest coupons,
substantially in the form of Exhibit A hereto, with the applicable legends as
provided in Section 2.3 (each a "Global Security" and collectively the "Global
Securities"). Each Global Security shall be duly executed by the Company and
authenticated and delivered by the Trustee, and shall be registered in the name
of the Depositary or its nominee and retained by the Trustee, as Custodian, at
its Corporate Trust Office, for credit to the accounts of the Agent Members
holding the Securities evidenced thereby (or in the case of Securities held for
purchasers who acquired such Securities in accordance with Regulation S,
registered with the Depositary for credit to the accounts of the Agent Members
then holding such Securities on behalf of Euroclear or Clearstream, as the case
may be). The aggregate principal amount of the Global Securities may from time
to time be increased or decreased by adjustments made on the records of the
Trustee, as Custodian, and of the Depositary or its nominee, as hereinafter
provided.
Physical Securities acquired by QIBs in accordance with Rule 144A or
in reliance on Regulation S may be exchanged for interests in Global Securities
pursuant to Section 2.9(a).
Section 2.3 Legends.
(a) Restricted Securities Legends.
Each Security issued hereunder shall, upon issuance, bear the legend
set forth in Section 2.3(a)(i), and each certificate representing Common Shares
issued upon conversion of any Security issued hereunder, shall, upon issuance,
bear the legend set forth in Section 2.3(a)(ii) (each such legend, a "Restricted
Securities Legend"), and such legend shall not be removed
17
except as provided in Section 2.3(a)(iii). Each Security that bears or is
required to bear the Restricted Securities Legend set forth in Section 2.3(a)(i)
(together with each certificate representing Common Shares issued upon
conversion of such Security that bears or is required to bear the Restricted
Securities Legend set forth in Section 2.3(a)(ii), collectively, the "Restricted
Securities") shall be subject to the restrictions on transfer set forth in this
Section 2.3(a) (including the Restricted Securities Legend set forth below), and
the Holder of each such Restricted Security, by such Holder's acceptance
thereof, shall be deemed to have agreed to be bound by all such restrictions on
transfer.
As used in Section 2.3(a), the term "transfer" encompasses any sale,
pledge, transfer or other disposition whatsoever of any Restricted Security.
(i) Restricted Securities Legend for Securities.
Except as provided in Section 2.3(a)(iii), until two years after the
original issuance date of any Security, any certificate evidencing such Security
(and all Securities issued in exchange therefor or substitution thereof, other
than certificates representing Common Shares, if any, issued upon conversion
thereof which shall bear the legend set forth in Section 2.3(a)(ii), if
applicable) shall bear a Restricted Securities Legend in substantially the
following form:
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET
FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER (1) (A)
REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT OR (B) REPRESENTS THAT IT IS NOT A U.S.
PERSON AND IS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN
ACCOUNT SATISFYING THE REQUIREMENTS OF) PARAGRAPH (K)(2) OF RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT WITHIN
TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE
TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON SHARES ISSUABLE UPON
CONVERSION OF SUCH SECURITY EXCEPT (A) TO XXXXXX XXXXXXX LTD. OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (C) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND
WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED
HEREBY IS TRANSFERRED (OTHER THAN A
18
TRANSFER PURSUANT TO CLAUSE 2(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITY
EVIDENCED HEREBY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH
SECURITY (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(D) ABOVE), THE HOLDER
MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO
THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE (OR
ANY SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFER IS PURSUANT
TO CLAUSE 2(C) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE) SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS XXXXXX XXXXXXX LTD. MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE
EARLIER OF THE TRANSFER OF THE SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE
2(D) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE
SECURITY EVIDENCED HEREBY. AS USED HEREIN, THE TERMS "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
(ii) Restricted Securities Legend for Common Shares Issued Upon
Conversion of the Securities.
Until two years after the original issuance date of any Security, each
certificate representing Common Shares issued upon conversion of such Security
shall bear a Restricted Securities Legend in substantially the following form:
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES THAT UNTIL THE EXPIRATION
OF TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE SECURITY UPON THE
CONVERSION OF WHICH THE COMMON SHARES EVIDENCED HEREBY WAS ISSUED, (1) IT
WILL NOT RESELL OR OTHERWISE TRANSFER THE SECURITY EXCEPT (A) TO XXXXXX
XXXXXXX LTD. OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE),
(C) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903
19
OR 904 OF REGULATION S UNDER THE SECURITIES ACT OR (D) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER; (2) PRIOR TO ANY SUCH TRANSFER OTHER THAN A TRANSFER PURSUANT TO
CLAUSE l(C) ABOVE, IT WILL FURNISH TO SUCH TRANSFER AGENT (OR ANY SUCCESSOR
TRANSFER AGENT, AS APPLICABLE) SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS XXXXXX XXXXXXX LTD. MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT; AND (3) IT WILL DELIVER TO EACH PERSON TO WHOM THE COMMON SHARES
EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE
1(C) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS
LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE COMMON
SHARES EVIDENCED HEREBY PURSUANT TO CLAUSE 1(C) ABOVE OR THE EXPIRATION OF
TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE SECURITY UPON THE CONVERSION OF
WHICH THE COMMON SHARES EVIDENCED HEREBY WAS ISSUED. AS USED HEREIN, THE
TERMS "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH SECURITY (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE (2)(E) ABOVE), THE HOLDER MUST CHECK THE APPROPRIATE BOX
SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS
APPLICABLE). IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE 2(C) OR 2(D)
ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE (OR
ANY SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS
OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.
THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE
SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE (2)(E) ABOVE OR THE EXPIRATION
OF TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE SECURITY EVIDENCED HEREBY.
AS USED HEREIN, THE TERMS "UNITED STATES" AND "U.S. PERSON" HAVE THE
20
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT."
(iii) Removal of the Restricted Securities Legends.
Each Security and certificate representing Common Shares issued upon
conversion of any Security (other than a certificate representing Common Shares
issued upon conversion of a Security that previously has been sold pursuant to a
registration statement that has been declared effective under the Securities Act
and which continues to be effective at the time of such sale) shall bear the
applicable Restricted Securities Legend set forth in Section 2.3(a)(i) or
2.3(a)(ii), as the case may be, until the earlier of:
(1) the date which is two years after the original issuance date
of such Security; and
(2) the date such Security or such Common Shares has been sold
pursuant to a registration statement that has been declared effective
under the Securities Act (and which continues to be effective at the
time of such sale).
The Holder must give notice thereof to the Trustee or any Depositary for the
Common Shares, as applicable.
In the event Rule 144(k) as promulgated under the Securities Act is
amended to shorten the two-year period under Rule 144(k), then, the references
in the restrictive legends set forth above to "TWO YEARS", and in the
corresponding transfer restrictions described above, the Securities and the
Common Shares will be deemed to refer to such shorter period, from and after
receipt by the Trustee of both an Officers' Certificate and an Opinion of
Counsel in accordance with the sentence immediately following. As soon as
practicable after the Company knows of the effectiveness of any such amendment
to shorten the two-year period under Rule 144(k), unless such changes would
otherwise be prohibited by, or would cause a violation of, the federal
securities laws applicable at the time, the Company will provide to the Trustee
an Officers' Certificate and an Opinion of Counsel as to the effectiveness of
such amendment and the effectiveness of such change to the restrictive legends
and transfer restrictions.
Notwithstanding the foregoing, the Restricted Securities Legend may be
removed from any Security or any certificate representing Common Shares issued
upon conversion of any Security if there is delivered to the Company such
satisfactory evidence, which may include an opinion of independent counsel, as
may be reasonably required by the Company, that neither such legend nor the
restrictions on transfer set forth therein are required to ensure that transfers
of such Security or Common Shares issued upon conversion of Securities, as the
case may be, will not violate the registration requirements of the Securities
Act. Upon provision of such satisfactory evidence, at the written direction of
the Company, (i) in the case of a Security, the Trustee shall authenticate and
deliver in exchange for such Security another Security or Securities having an
equal aggregate principal amount that does not bear such legend or (ii) in the
case of a certificate representing Common Shares, the Company's transfer agent
for the Common Shares shall deliver in exchange for the certificate or
certificates representing such Common Shares bearing such
21
legend, one or more new certificates representing a like aggregate number of
shares of Common Shares that do not bear such legend. If the Restricted
Securities Legend has been removed from a Security or certificates representing
Common Shares issued upon conversion of any Security as provided above, no other
Security issued in exchange for all or any part of such Security or certificates
representing Common Shares issued upon conversion of such Security shall bear
such legend, unless the Company has reasonable cause to believe that such other
Security is a "restricted security" (or such Common Shares is a "restricted
security") within the meaning of Rule 144 or Regulation S and instructs the
Trustee in writing to cause a Restricted Securities Legend to appear thereon.
Any Security (or Security issued in exchange or substitution therefor)
as to which such restrictions on transfer shall have expired in accordance with
their terms or as to which the conditions for removal of the Restricted
Securities Legend set forth in Section 2.3(a)(i) as set forth therein have been
satisfied may, upon surrender of such Security for exchange to the Registrar in
accordance with the provisions of Section 2.7, be exchanged for a new Security
or Securities, of like tenor and aggregate principal amount, which shall not
bear the Restricted Securities Legend required by Section 2.3(a)(i).
Any certificate representing Common Shares issued upon conversion of
any Security as to which such restrictions on transfer shall have expired in
accordance with their terms or as to which the conditions for removal of the
Restricted Securities Legend set forth in Section 2.3(a)(ii) as set forth
therein have been satisfied may, upon surrender of the certificates representing
such Common Shares for exchange in accordance with the procedures of the
Company's transfer agent for the Common Shares, be exchanged for a new
certificate or certificates representing a like aggregate number of shares of
Common Shares, which shall not bear the Restricted Securities Legend required by
Section 2.3(a)(ii).
(b) Global Security Legend.
Each Global Security shall also bear the following legend on the face
thereof:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE REFERRED
TO HEREIN. BENEFICIAL INTERESTS IN THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT IN ACCORDANCE WITH THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, TO XXXXXX XXXXXXX LTD.
(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
22
IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Section 2.4 Execution, Authentication, Delivery and Dating of the
Securities.
An Officer of the Company shall execute the Securities on behalf of
the Company by manual or facsimile signature. If the Officer whose signature is
on a Security no longer holds that office at the time the Security is
authenticated, the Security shall be valid nevertheless.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture, or
be valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by or on behalf of the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
The Trustee may appoint an authenticating agent or agents reasonably
acceptable to the Company with respect to the Securities. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent.
Section 2.5 Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange (the "Registrar") and an
office or agency where Securities may be presented for payment (the "Paying
Agent"). The Registrar shall keep a register of the Securities (the "Register")
and of their transfer and exchange. The Company may appoint one or more
co-Registrars and one or more additional Paying Agents for the Securities. The
term "Paying Agent" includes any additional paying agent and the term
"Registrar" includes any additional registrar. The Company may change any Paying
Agent or Registrar without prior notice to any Holder.
The Company will cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
and premium, if any, or interest (including Additional Amounts, if
any) on Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as provided in this Indenture;
23
(2) give the Trustee notice of any Default by the Company in the
making of any payment of principal and premium, if any, or interest
(including Additional Amounts, if any); and
(3) at any time during the continuance of any such Default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company shall give prompt written notice to the Trustee of the
name and address of any Agent who is not a party to this Indenture. If the
Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Company or any Affiliate of the
Company may act as Paying Agent or Registrar; provided, however, that none of
the Company, its subsidiaries or the Affiliates of the foregoing shall act:
(4) as Paying Agent in connection with redemptions, offers to
purchase and discharges, except as otherwise specified in this
Indenture, and
(5) as Paying Agent or Registrar if a Default or Event of Default
has occurred and is continuing.
The Company hereby initially appoints the Trustee as Registrar and
Paying Agent for the Securities.
Section 2.6 Paying Agent to Hold Assets in Trust.
Not later than 10:00 a.m. (New York City time) on each due date of the
principal, premium, if any, and interest (including Additional Amounts, if any)
on any Securities, the Company shall deposit with one or more Paying Agents
money in immediately available funds in an aggregate amount sufficient to pay
the principal, premium, if any, and interest (including Additional Amounts, if
any) due on such date. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company) shall have no further liability for the
money so paid over to the Trustee.
If the Company shall act as a Paying Agent, it shall, prior to or on
each due date of the principal of and premium, if any, or interest (including
Additional Amounts, if any) on any of the Securities, segregate and hold in
trust for the benefit of the Holders a sum sufficient with monies held by all
other Paying Agents, to pay the principal and premium, if any, or interest
(including Additional Amounts, if any) so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as provided in this Indenture, and
shall promptly notify the Trustee of its action or failure to act.
Section 2.7 General Provisions Relating to Transfer and Exchange.
The Securities are issuable only in registered form. A Holder may
transfer a Security only by written application to the Registrar stating the
name of the proposed transferee and otherwise complying with the terms of this
Indenture. No such transfer shall be effected until,
24
and such transferee shall succeed to the rights of a Holder only upon, final
acceptance and registration of the transfer by the Registrar in the Register.
Furthermore, any Holder of a Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book-entry system maintained by the Holder of
such Global Security (or its agent) and that ownership of a beneficial interest
in the Global Security shall be required to be reflected in a book-entry.
Notwithstanding the foregoing, in the case of a Restricted Security, a
beneficial interest in a Global Security being transferred in reliance on an
exemption from the registration requirements of the Securities Act other than in
accordance with Rule 144, Regulation S or Rule 144A may be transferred only for
a Physical Security.
When Securities are presented to the Registrar with a request to
register the transfer or to exchange them for an equal aggregate principal
amount of Securities of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested if the requirements
hereunder for such transactions are met (including that such Securities are duly
endorsed or accompanied by a written instrument of transfer duly executed by the
Holder thereof or by an attorney who is authorized in writing to act on behalf
of the Holder). Subject to Section 2.4, to permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Registrar's request. No service charge shall be made for any
registration of transfer or exchange or redemption of the Securities, but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any such
transfer taxes or other similar governmental charge payable upon exchanges
pursuant to Section 2.14, 7.5 or 10.7).
Neither the Company nor the Registrar shall be required to exchange or
register a transfer of any Securities:
(1) for a period of 15 Business Days prior to the day of any
selection of Securities for redemption under Article 10;
(2) so selected for redemption or, if a portion of any Security
is selected for redemption, the portion thereof selected for
redemption; or
(3) surrendered for conversion or, if a portion of any Security
is surrendered for conversion, the portion thereof surrendered for
conversion.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Agent Members or
beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
Section 2.8 Book-Entry Provisions for the Global Securities.
(a) The Global Securities initially shall:
25
(1) be registered in the name of the Depositary (or a nominee
thereof);
(2) be delivered to the Trustee as custodian for such Depositary;
and
(3) bear the Restricted Securities Legend set forth in Section
2.3(a)(i).
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under such
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
contained herein shall prevent the Company, the Trustee or any agent of the
Company or Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or impair, as between the
Depositary and the Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Security. With respect to any
Global Security deposited on behalf of the subscribers for the Securities
represented thereby with the Trustee as custodian for the Depositary for credit
to their respective accounts (or to such other accounts as they may direct) at
Euroclear or Clearstream, the provisions of the "Operating Procedures of the
Euroclear System" and the "Terms and Conditions Governing Use of Euroclear" and
the "Management Regulations" and "Instructions to Participants" of Clearstream,
respectively, shall be applicable to the Global Securities.
(b) The Holder of a Global Security may grant proxies and otherwise
authorize any Person, including DTC Participants and Persons that may hold
interests through DTC Participants, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
(c) A Global Security may not be transferred, in whole or in part, to
any Person other than the Depositary (or a nominee thereof), and no such
transfer to any such other Person may be registered. Beneficial interests in a
Global Security may be transferred in accordance with the rules and procedures
of the Depositary and the provisions of Section 2.9.
(d) If at any time:
(1) the Depositary notifies the Company in writing that it is no
longer willing or able to continue to act as Depositary for the Global
Securities, or the Depositary ceases to be a "clearing agency"
registered under the Exchange Act and a successor depositary for the
Global Securities is not appointed by the Company within 90 days of
such notice or cessation;
(2) the Company, at its option, notifies the Trustee in writing
that it elects to cause the issuance of the Physical Securities under
this Indenture in exchange for all or any part of the Securities
represented by a Global Security or Global Securities; or
26
(3) an Event of Default has occurred and is continuing and the
Registrar has received a request from the Depositary for the issuance
of Physical Securities in exchange for such Global Security or Global
Securities;
the Depositary shall surrender such Global Security or Global Securities to the
Trustee for cancellation and the Company shall execute, and the Trustee, upon
receipt of an Officers' Certificate and Company Order for the authentication and
delivery of Securities, shall authenticate and deliver in exchange for such
Global Security or Global Securities, Physical Securities in an aggregate
principal amount equal to the aggregate principal amount of such Global Security
or Global Securities. Such Physical Securities shall be registered in such names
as the Depositary shall identify in writing as the beneficial owners of the
Securities represented by such Global Security or Global Securities (or any
nominee thereof).
(e) Notwithstanding the foregoing, in connection with any transfer of
beneficial interests in a Global Security to the beneficial owners thereof
pursuant to Section 2.8(d), the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of such Global Security in an
amount equal to the principal amount of the beneficial interests in such Global
Security to be transferred.
Section 2.9 Special Transfer Provisions.
Unless a Security is (i) transferred after the time period referred to
in Rule 144(k) under the Securities Act or (ii) sold pursuant to a registration
statement that has been declared effective under the Securities Act (and which
continues to be effective at the time of such sale), the following provisions
shall apply to any sale, pledge or other transfer of Securities:
(a) Transfer of Securities to a QIB or to a Non-U.S. Person in
Accordance with Regulation S.
The following provisions shall apply with respect to the registration
of any proposed transfer of Securities to (x) a QIB or (y) a Non-U.S. Person in
Accordance with Regulation S:
(i) If the Securities to be transferred consist of a beneficial
interest in the Global Securities, the transfer of such interest may be
effected only through the book-entry systems maintained by Euroclear and
Clearstream, if applicable, and the Depositary.
(ii) If the Securities to be transferred consist of Physical
Securities, the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for on
the form of Security stating (or has otherwise advised the Company and the
Registrar in writing) that the sale has been made:
(A) in compliance with the provisions of Rule 144A to a transferee who
has signed the certification provided for on the form of Security stating
or has otherwise advised the Company and the Registrar in writing that:
27
(1) it is purchasing the Securities for its own account or an
account with respect to which it exercises sole investment discretion,
in each case for investment and not with a view to distribution;
(2) it and any such account is a QIB within the meaning of Rule
144A;
(3) it is aware that the sale to it is being made in reliance on
Rule 144A;
(4) it acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or has
determined not to request such information; and
(5) it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A, or
(B) in compliance with Regulation S to a transferee who has signed a
certification provided for on the form of Security stating (or has
otherwise advised the Company and the Registrar in writing) that it is not
a "U.S. person" as defined in Regulation S.
In addition, the Registrar shall reflect on its books and records the
date and an increase in the principal amount of the Global Securities in an
amount equal to the aggregate principal amount of the Physical Securities to be
transferred, and the Trustee shall cancel the Physical Securities so
transferred.
(b) Other Exchanges.
In the event that Global Securities are exchanged for Securities in
definitive registered form pursuant to Section 2.8 prior to the
effectiveness of a Shelf Registration Statement with respect to such
Securities, such Securities may be exchanged only in accordance with the
provisions of clause (a) above (including the certification requirements
intended to ensure that such transfers comply with Rule 144A or Regulation
S, as the case may be) and such other procedures as may from time to time
be adopted by the Company.
(c) General.
By its acceptance of any Security bearing the Restricted Securities
Legend, each Holder of such a Security acknowledges the restrictions on
transfer of such Security set forth in this Indenture and agrees that it
will transfer such Security only as provided in this Indenture. The
Registrar shall not register a transfer of any Security unless such
transfer complies with the restrictions on transfer of such Security set
forth in this Indenture. The Registrar shall be entitled to receive and
conclusively rely on written instructions from the Company verifying that
such transfer complies with such restrictions on transfer. In connection
with any transfer of Securities, each Holder agrees by its acceptance of
the Securities to furnish the Registrar or the Company such certifications,
legal opinions or
28
other information as either of them may reasonably require to confirm that
such transfer is being made pursuant to an exemption from, or a transaction
not subject to, the registration requirements of the Securities Act;
provided that the Registrar shall not be required to determine (but may
conclusively rely on a determination made by the Company with respect to)
the sufficiency of any such certifications, legal opinions or other
information.
The Registrar shall retain copies of all certifications, letters,
notices and other written communications received pursuant to Section 2.8 hereof
or this Section 2.9 in accordance with its customary procedures for the
retention of records relating to the transfer of securities. The Company shall
have the right to inspect and make copies of all such certifications, letters,
notices or other written communications at any reasonable time upon the giving
of reasonable prior written notice to the Registrar.
Section 2.10 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with Section 312(a) of the TIA. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee prior to
or on each Interest Payment Date and at such other times as the Trustee may
request in writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Holders relating to such
Interest Payment Date or request, as the case may be.
Section 2.11 Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Holder as the owner of such Security for the purpose of receiving
payment of principal of and premium, if any, and interest (including Additional
Amounts, if any) on such Security and for all other purposes whatsoever, whether
or not such Security be overdue, and notwithstanding any notice of ownership or
writing thereon, or any notice of previous loss or theft or other interest
therein.
Section 2.12 Mutilated, Destroyed, Lost or Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there is delivered to the Company and the Trustee:
(1) evidence to their satisfaction of the destruction, loss or
theft of any Security, and
(2) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the
absence
29
of actual notice to the Company that such Security has been acquired
by a bona fide purchaser, the Company shall execute and, upon written
request and in the absence of actual notice of a Responsible Officer
of the Trustee that such Security has been acquired by a bona fide
purchaser, the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of like tenor
and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion, but
subject to any conversion rights, may, instead of issuing a new Security, pay
such Security, upon satisfaction of the condition set forth in the preceding
paragraph.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 2.12 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and such new Security shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities duly issued
hereunder.
The provisions of this Section 2.12 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Securities so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any Affiliate of the Company.
Section 2.13 Treasury Securities.
In determining whether the Holders of the requisite principal amount
of Outstanding Securities are present at a meeting of Holders for quorum
purposes or have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Securities owned by the Company or any Affiliate of
the Company shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in relying upon any such
determination as to the presence of a quorum or upon any such request, demand,
authorization, direction, notice, consent or waiver, only such Securities of
which a Responsible Officer of the Trustee has actually received written notice
and are so owned shall be so disregarded.
Section 2.14 Temporary Securities.
Pending the preparation of Securities in definitive form, the Company
may execute and the Trustee shall, upon written request of the Company,
authenticate and deliver temporary Securities (printed or lithographed).
Temporary Securities shall be issuable in any authorized denomination, and
substantially in the form of the Securities in definitive form but with such
30
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every such temporary
Security shall be executed by the Company and authenticated by the Trustee upon
the same conditions and in substantially the same manner, and with the same
effect, as the Securities in definitive form. Without unreasonable delay, the
Company will execute and deliver to the Trustee Securities in definitive form
(other than in the case of Securities in global form) and thereupon any or all
temporary Securities (other than any such Securities in global form) may be
surrendered in exchange therefor, at each office or agency maintained by the
Company pursuant to Section 9.3 and the Trustee shall authenticate and deliver
in exchange for such temporary Securities an equal aggregate principal amount of
Securities in definitive form. Such exchange shall be made by the Company at its
own expense and without any charge therefor. Until so exchanged, the temporary
Securities shall in all respects be entitled to the same benefits and subject to
the same limitations under this Indenture as Securities in definitive form
authenticated and delivered hereunder.
Section 2.15 Cancellation.
All securities surrendered for payment, redemption, repurchase,
conversion, registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All Securities so
delivered shall be canceled promptly by the Trustee, and no Securities 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
dispose of canceled Securities in accordance with its procedures for the
disposition of cancelled securities in effect as of the date of such disposition
and, after such disposition, shall deliver a certificate of such disposition to
the Company. If the Company shall acquire any of the Securities, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Securities unless the same are delivered to the
Trustee for cancellation.
Section 2.16 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and the Trustee shall use CUSIP numbers in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice shall state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any such notice
and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers. The Company shall promptly notify the Trustee of
any change in the CUSIP numbers.
Section 2.17 Defaulted Interest.
If the Company fails to make a payment of interest (including
Additional Amounts, if any) on any Security when due and payable ("Defaulted
Interest"), it shall pay such Defaulted Interest plus (to the extent lawful) any
interest payable on the Defaulted Interest, in any lawful manner. It may elect
to pay such Defaulted Interest, plus any such interest payable on it, to the
Persons who are Holders of such Securities on which the interest is due on a
subsequent Special Record Date. The Company shall notify the Trustee in writing
of the amount of Defaulted
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Interest proposed to be paid on each such Security. The Company shall fix any
such Special Record Date and payment date for such payment. At least 15 days
before any such Special Record Date, the Company shall mail to Holders affected
thereby a notice that states the Special Record Date, the Interest Payment Date,
and amount of such interest (and such Additional Amounts, if any) to be paid.
Article III
SATISFACTION AND DISCHARGE
Section 3.1 Satisfaction and Discharge of Indenture.
When:
(a) the Company shall deliver to the Trustee for cancellation all
Securities previously authenticated (other than any Securities which have been
mutilated, destroyed, lost or stolen and in lieu of, or in substitution for
which, other Securities shall have been authenticated and delivered) and not
previously canceled;
or
(b) (i) all the Securities not previously 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;
(i) the Company shall deposit with the Trustee, in trust, cash in
U.S. dollars and/or U.S. Government Obligations which through the
payment of interest and principal in respect thereof, in
accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on
such Trustee), not later than one Business Day before the due
date of any payment of money, an amount in cash, sufficient, in
the opinion of a firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to
pay principal of, premium, if any, or interest (including
Additional Amounts, if any) on all of the Securities (other than
any Securities which shall have been mutilated, destroyed, lost
or stolen and in lieu of or in substitution for which other
Securities shall have been authenticated and delivered) not
previously canceled or delivered to the Trustee for cancellation,
on the dates such payments of principal, premium, if any, or
interest (including Additional Amounts, if any) are due to such
date of maturity or redemption, as the case may be;
(ii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent in this Indenture relating to the
satisfaction and discharge of the Indenture have been complied
with; and
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(iii) the Company shall 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:
(1) remaining rights of registration of transfer, substitution
and exchange and conversion of Securities;
(2) rights hereunder of Holders to receive payments of principal
of and premium, if any, and interest (including Additional
Amounts, if any) on, the Securities and the other rights,
duties and obligations of Holders, as beneficiaries hereof
with respect to the amounts, if any, so deposited with the
Trustee; and
(3) 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 and at the cost and expense of the
Company, shall execute instruments acknowledging satisfaction of and discharging
this Indenture; provided, however, that the Company shall reimburse the Trustee
for all amounts due the Trustee under Section 5.8 and for any costs or expenses
thereafter reasonably incurred by the Trustee and to compensate the Trustee for
any services thereafter reasonably rendered by the Trustee in connection with
this Indenture or the Securities.
Section 3.2 Deposited Monies to be Held in Trust.
Subject to Section 3.3, all monies deposited with the Trustee pursuant
to Section 3.1 shall be held in trust and applied by it to the payment,
notwithstanding the provisions of Article 13, either directly or through any
Paying Agent (including the Company if acting as its own Paying Agent), to the
Holders of the particular Securities for the payment or redemption of which such
monies have been deposited with the Trustee, of all sums due and to become due
thereon for principal, premium, if any, and interest (including Additional
Amounts, if any). All monies deposited with the Trustee pursuant to Section 3.1
(and held by it or any Paying Agent) for the payment of Securities subsequently
converted shall be returned to the Company upon written request of the Company.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charges imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 3.1 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Section 3.3 Return of Unclaimed Monies.
The Trustee and the Paying Agent shall pay to the Company any money
held by them for the payment of principal or premium, if any, or interest
(including Additional Amounts, if any) that remains unclaimed for 2 years after
the date upon which such payment shall have become due. After payment to the
Company, Holders entitled to the money must look to the Company for payment as
general creditors unless an applicable abandoned property law
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designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
Article IV
DEFAULTS AND REMEDIES
Section 4.1 Events of Default.
An "Event of Default" with respect to the Securities occurs when any
of the following occurs (whatever the reason for such Event of Default and
whether it 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):
(a) the Company defaults in the payment of the principal of or
premium, if any, on any of the Securities when it becomes due and payable at
Maturity, upon redemption or exercise of a Repurchase Right or otherwise,
whether or not such payment prohibited by the subordination provisions of this
Indenture; or
(b) the Company defaults in the payment of interest (including
Additional Amounts, if any) on any of the Securities when it becomes due and
payable and such default continues for a period of 30 day, whether or not such
payment prohibited by the subordination provisions of this Indentures; or
(c) the Company fails to perform or observe any other term, covenant
or agreement contained in the Securities or this Indenture and the default
continues for a period of 60 days after written notice of such failure,
requiring the Company to remedy the same, shall have been given to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Outstanding Securities; or
(d) the Company or the Guarantor fails to make any payment (whether of
principal or interest and regardless of amount) in respect of any Indebtedness
aggregating $15,000,000 or more, when and as the same shall become due and
payable (beyond any applicable grace period expressly set forth in the governing
documents), unless such Indebtedness is discharged; or any event or condition
occurs that results in any such Indebtedness becoming due prior to its scheduled
maturity or that enables or permits (with or without the giving of notice, the
lapse of time or both) the holder or holders of any such Indebtedness or any
trustee or agent on its or their behalf to cause any such Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity, unless such acceleration is waived, cured,
rescinded or annulled, and such failure or such event or condition shall
continue for a period of 30 days after written notice of such failure shall have
been given to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in aggregate principal amount of the Outstanding
Securities; or
(e) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company or the Guarantor, in an
involuntary case or proceeding under
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any applicable U.S. federal or state bankruptcy, insolvency, reorganization or
other similar law or (ii) a decree or order adjudging the Company or, a bankrupt
or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or the
Guarantor, under any applicable U.S. federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or the Guarantor, or of any substantial part of
its property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 60 consecutive days; or
(f) the commencement by the Company or the Guarantor, of a voluntary
case or proceeding under any applicable U.S. federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by the
Company to the entry of a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable U.S. federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against the
Company or the Guarantor, or the filing by the Company the Guarantor of a
petition or answer or consent seeking reorganization or relief under any
applicable U.S. federal or state law, or the consent by the Company or the
Guarantor, to the filing of such petition or to the appointment of or the taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its
property, or the making by the Company or the Guarantor, of an assignment for
the benefit of creditors, or the admission by the Company or the Guarantor in
writing of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company expressly in furtherance of any such
action; or
(g) the Guarantee ceases to be in full force and effect (other than as
expressly provided for under this Indenture) or is declared null and void, or
the Guarantor denies that it has any further liability under the Guarantee, or
gives notice to such effect (other than by reason of termination of this
Indenture or release of the Guarantee in accordance with this Indenture).
Section 4.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Outstanding Securities (other
than an Event of Default specified in Section 4.1(e) or 4.1(f)) occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities, by written notice to the Company, may
declare due and payable 100% of the principal amount of all Outstanding
Securities plus any accrued and unpaid interest (including Additional Amounts,
if any) to the date of payment. Upon a declaration of acceleration, such
principal and accrued and unpaid interest (including Additional Amounts, if any)
to the date of payment shall be immediately due and payable.
If an Event of Default specified in Section 4.1(e) or 4.1(f) occurs,
all unpaid principal and accrued and unpaid interest (including Additional
Amounts, if any) on the Outstanding Securities shall become and be immediately
due and payable, without any declaration or other act on the part of the Trustee
or any Holder.
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The Holders either (a) through written notice to the Trustee of not
less than a majority in aggregate principal amount of the Outstanding
Securities, or (b) by the adoption of a resolution, at a meeting of Holders of
the Outstanding Securities at which a quorum is present, by the Holders of at
least a majority in aggregate principal amount of the Outstanding Securities
represented at such meeting, may, on behalf of the Holders of all of the
Securities, rescind and annul an acceleration and its consequences if:
(1) all existing Events of Default, other than the nonpayment of
principal of or interest on the Securities which have become due
solely because of the acceleration, have been remedied, cured or
waived, and
(2) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction.
Section 4.3 Other Remedies.
If an Event of Default with respect to Outstanding Securities occurs
and is continuing, the Trustee may pursue any available remedy by proceeding at
law or in equity to collect the payment of principal of or interest on the
Securities or to enforce the performance of any provision of the Securities.
The Trustee may maintain a proceeding in which it may prosecute and
enforce all rights of action and claims under this Indenture or the Securities,
even if it does not possess any of the Securities or does not produce any of
them in the proceeding.
Section 4.4 Waiver of Past Defaults.
The Holders, either (a) through the written consent of not less than a
majority in aggregate principal amount of the Outstanding Securities, or (b) by
the adoption of a resolution, at a meeting of Holders of the Outstanding
Securities at which a quorum is present, by the Holders of at least a majority
in aggregate principal amount of the Outstanding Securities represented at such
meeting, may, on behalf of the Holders of all of the Securities, waive an
existing Default or Event of Default, except a Default or Event of Default:
(1) in the payment of the principal of or premium, if any, or
interest (including Additional Amounts, if any) on any Security
(provided, however, that subject to Section 4.7, the Holders of a
majority in aggregate principal amount of the Outstanding Securities
may rescind an acceleration and its consequences, including any
related payment default that resulted from such acceleration); or
(2) in respect of a covenant or provision hereof which, under
Section 7.2, cannot be modified or amended without the consent of the
Holders of each Outstanding Security affected.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; provided,
36
however, that no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
Section 4.5 Control by Majority.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities (or such lesser amount as shall have acted at a meeting
pursuant to the provisions of this Indenture) shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that:
(1) conflicts with any law or with this Indenture;
(2) the Trustee determines may be unduly prejudicial to the
rights of the Holders not joining therein; or
(3) may expose the Trustee to personal liability.
The Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 4.6 Limitation on Suit.
No Holder of any Security shall have any right to pursue any remedy
with respect to this Indenture or the Securities (including, instituting any
proceeding, judicial or otherwise, with respect to this Indenture or for the
appointment of a receiver or trustee) unless:
(1) such Holder has previously given written notice to the
Trustee of an Event of Default that is continuing;
(2) the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities shall have made written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to it against any costs, expenses and liabilities
incurred in complying with such request;
(4) the Trustee has failed to comply with the request for 60 days
after its receipt of such notice, request and offer of indemnity; and
(5) during such 60-day period, no direction inconsistent with
such written request has been given to the Trustee by the Holders of a
majority in aggregate principal amount of the Outstanding Securities
(or such amount as shall have acted at a meeting pursuant to the
provisions of this Indenture);
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provided, however, that no one or more of such Holders may use this Indenture to
prejudice the rights of another Holder or to obtain preference or priority over
another Holder.
Section 4.7 Unconditional Rights of Holders to Receive Payment and to
Convert.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and premium, if any, and interest (including
Additional Amounts, if any) on such Security on the Stated Maturity expressed in
such Security (or, in the case of redemption, on the Redemption Date, or in the
case of the exercise of a Repurchase Right, on the Repurchase Date) and to
convert such Security in accordance with Article 12, and to bring an action for
the enforcement of any such payment on or after such respective dates and such
right to convert, and such rights shall not be impaired or affected without the
consent of such Holder.
Section 4.8 Collection of Indebtedness and Suits for Enforcement by
the Trustee.
The Company covenants that if an Event of Default described in
Sections 4.1(a) or 4.1(b) occurs with respect to any Securities, the Company
will, upon demand of the Trustee, pay to it, for the benefit of the Holders of
such Securities, the whole amount then due and payable (as expressed therein or
as a result of any acceleration effected pursuant to Section 4.2) on such
Securities for principal and premium, if any, and interest (including Additional
Amounts, if any) and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and premium, if any, and
on any overdue interest (including Additional Amounts, if any), calculated using
the Interest Rate, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Company, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities by such appropriate judicial proceedings as the Trustee
shall deem necessary to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
Section 4.9 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the
38
Company or the property of the Company or its creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
overdue principal or interest (including Additional Amounts, if any)) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(1) to file and prove a claim for the whole amount of principal
and premium, if any, and interest (including Additional Amounts, if
any) owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements, advances and indemnification,
of the Trustee, its agents and counsel) and of the Holders of
Securities allowed in such judicial proceeding; and
(2) to collect and receive any monies or other property payable
or deliverable on any such claim and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceedings is hereby authorized by
each Holder of Securities to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders of Securities, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 5.8.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept, or adopt on behalf of any Holder of a
Security, any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder of a Security in any such
proceeding.
Section 4.10 Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Securities 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 4.11 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 2.12, no right or remedy conferred in this Indenture upon or reserved
to the Trustee or to the Holders of Securities is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
39
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 4.12 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
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
any acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders of Securities may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders
of Securities, as the case may be.
Section 4.13 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or premium, if
any, or interest (including Additional Amounts, if any), upon presentation of
the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee;
SECOND: To the payment of the amounts then due and unpaid for
principal of and premium, if any, and interest (including Additional
Amounts, if any) on the Securities, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and premium, if any, and interest (including
Additional Amounts, if any), respectively; and
THIRD: Any remaining amounts shall be repaid to the Company.
Section IV.14 Undertaking for Costs.
The parties to this Indenture agree, and each Holder of any Security
by such Holder's acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in aggregate principal amount of the Outstanding Securities, or to any
suit instituted by any Holder of any Security for the enforcement of the payment
of the principal of or premium, if any, or interest (including Additional
Amounts, if any) on any Security on or after the Stated Maturity expressed in
40
such Security (or, in the case of redemption, on the Redemption Date, or in the
case of the exercise of a Repurchase Right, on or after the Repurchase Date) or
for the enforcement of the right to convert any Security in accordance with
Article 12. For avoidance of doubt, the parties to this Indenture hereby confirm
that this Section 4.14 shall be of no force and effect as against the Trustee.
Section 4.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
to take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Article V
THE TRUSTEE
Section 5.1 Certain Duties and Responsibilities.
(a) The Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture or the TIA, and no implied
covenants or obligations shall be read into this Indenture against the Trustee.
(b) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; provided, however,
that in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall examine the certificates or opinions to determine whether or not, on their
face, they conform to the requirements to this Indenture (but need not
investigate or confirm the accuracy of any facts stated therein).
(c) In case an Event of Default actually known to a Responsible
Officer of the Trustee has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(d) 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:
41
(1) This paragraph (c) shall not be construed to limit the effect
of paragraph (a) or (b) of this Section 5.1;
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) The Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with a
direction received by it of the Holders of a majority in principal
amount of the Outstanding Securities (or such lesser amount as shall
have acted at a meeting pursuant to the provisions of this Indenture)
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.
(e) Whether or not herein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 5.1.
(f) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers. The
Trustee may refuse to perform any duty or exercise any right or power, whether
requested by the Company, the Holders or any other Person, unless it receives
indemnity satisfactory to it against any loss, liability, cost or expense
(including, without limitation, reasonable fees of counsel).
(g) The Trustee shall not be obligated to pay interest on any money or
other assets received by it unless otherwise agreed in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(h) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon, other evidence of Indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, 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
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation.
(i) The Trustee shall not be deemed to have notice or actual knowledge
of any 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 a
Default is received by the Trustee pursuant to Section 15.2 and such notice
references the Securities and this Indenture.
(j) The rights, privileges, protections, immunities and benefits given
to the Trustee hereunder, including, without limitation, its right to be
indemnified, are extended to, and
42
shall be enforceable by, the Trustee in each of its capacities hereunder, and
each Paying Agent, authenticating agent, Conversion Agent or Registrar acting
hereunder.
(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.
Section 5.2 Certain Rights of Trustee.
Subject to the provisions of Section 5.1 and subject to Section 315(a)
through (d) of the TIA:
(1) The Trustee may conclusively rely on any document believed by
it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in
the document.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both.
The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on the Officers' Certificate or Opinion
of Counsel.
(3) The Trustee may act through attorneys and agents and shall
not be responsible for the misconduct or negligence of any attorney or
agent appointed with due care.
(4) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith which it believed to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture, unless the Trustee's conduct constitutes
negligence.
(5) The Trustee may consult with counsel of its selection and the
advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion
of such counsel.
(6) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(7) The permissive rights of the Trustee to do things enumerated
in this Indenture shall not be construed as a duty unless so specified
herein.
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Section 5.3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest (as such term is defined in Section 310(b) of the TIA), it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee (to the extent permitted under Section 310(b) of the TIA) or
resign. Any agent may do the same with like rights and duties. The Trustee is
also subject to Sections 5.11 and 5.12.
Section V.4 Money Held in Trust.
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
otherwise expressly agreed with the Company.
Section 5.5 Trustee's Disclaimer.
The recitals contained herein and in the Securities (except for those
in the certificate of authentication) shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity, sufficiency or priority of
this Indenture or of the Securities. The Trustee shall not be accountable for
the use or application by the Company of Securities or the proceeds thereof.
Section 5.6 Notice of Defaults.
Within 90 days after the occurrence of any Default or Event of Default
hereunder of which a Responsible Officer of the Trustee has received written
notice, the Trustee shall give notice to Holders pursuant to Section 15.2,
unless such Default or Event of Default shall have been cured or waived;
provided, however, that, except in the case of a Default or Event of Default in
the payment of the principal of or premium, if any, or interest (including
Additional Amounts, if any), or in the payment of any redemption or repurchase
obligation on any Security, the Trustee shall be protected in withholding such
notice if and so long as Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of the Holders.
Section 5.7 Reports by Trustee to Holders.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required by Section 313
of the TIA at the times and in the manner provided by the TIA.
A copy of each report at the time of its mailing to Holders shall be
filed with the SEC, if required, and each stock exchange, if any, on which the
Securities are listed. The Company shall promptly notify the Trustee if the
Securities become listed on any stock exchange or delisted therefrom.
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Section 5.8 Compensation and Indemnification.
The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, such compensation as the Company and
the Trustee shall from time to time agree in writing (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 covenants and agrees to pay or reimburse the Trustee upon
its request for all reasonable expenses, disbursements and advances incurred or
made by or on behalf of it in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ), except to the extent that any such expense, disbursement or
advance is due to its negligence or bad faith. When the Trustee incurs expenses
or renders services in connection with an Event of Default specified in Section
4.1, the expenses (including the reasonable charges and expenses of its counsel)
and the compensation for the services are intended to constitute expenses of
administration under any bankruptcy law. The Company also covenants to indemnify
the Trustee and its officers, directors, employees and agents (collectively, the
"Indemnitees") for, and to hold such Persons harmless against, any loss,
liability or expense incurred by them, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder or the
performance of their duties hereunder, including the costs and expenses of
defending themselves against or investigating any claim of liability in the
premises, except to the extent that any such loss, liability or expense was due
to the negligence or willful misconduct of the Indemnitees. The obligations of
the Company under this Section 5.8 to compensate and indemnify the Indemnitees
and to pay or reimburse such Persons for expenses, disbursements and advances
shall constitute additional Indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture or the earlier resignation or
removal of the Trustee. Such additional Indebtedness shall be a lien prior to
that of the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the Holders of
particular Securities, and the Securities are hereby subordinated to such senior
claim. "Trustee" for purposes of this Section 5.8 shall include any predecessor
Trustee, but the negligence or willful misconduct of any Trustee shall not
affect the indemnification of any other Trustee.
Section 5.9 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 5.9.
The Trustee may resign and be discharged from the trust hereby created
by so notifying the Company in writing. The Holders of at least a majority in
aggregate principal amount of Outstanding Securities may remove the Trustee by
so notifying the Trustee and the Company in writing. The Company must remove the
Trustee if:
(i) the Trustee fails to comply with Section 5.10 or Section 310 of
the TIA;
(ii) the Trustee becomes incapable of acting;
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(iii) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any
Bankruptcy Law; or
(iv) Custodian or public officer takes charge of the Trustee or its
property.
If the Trustee resigns or is removed or if a vacancy exists in the
office of the Trustee for any reason, the Company shall promptly appoint a
successor Trustee. The Trustee shall be entitled to payment of its fees and
reimbursement of its expenses while acting as Trustee. Within one year after the
successor Trustee takes office, the Holders of at least a majority in aggregate
principal amount of Outstanding Securities may appoint a successor Trustee to
replace the successor Trustee appointed by the Company.
Any Holder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee if the Trustee
fails to comply with Section 5.10.
If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation or removal, the resigning or removed Trustee, as the case may be,
may petition, at the expense of the Company, any court of competent jurisdiction
for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The Company shall issue a notice of the successor
Trustee's succession to the Holders. Upon payment of its charges, the retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject nevertheless to its lien, if any, provided for in
Section 5.8. Notwithstanding replacement of the Trustee pursuant to this Section
5.9, the Company's obligations under Section 5.8 shall continue for the benefit
of the retiring Trustee with respect to expenses, losses and liabilities
incurred by it prior to such replacement.
Section 5.10 Successor Trustee by Merger, Etc.
Subject to Section 5.11, if the Trustee consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another Person, corporation or national banking association, the
successor entity without any further act shall be the successor Trustee as to
the Securities.
Section 5.11 Corporate Trustee Required; Eligibility.
The Trustee shall at all times satisfy the requirements of Section
310(a)(1), (2) and (5) of the TIA. The Trustee shall at all times have (or, in
the case of a corporation included in a bank holding company system, the related
bank holding company shall at all times have), a combined capital and surplus of
at least $25 million as set forth in its (or its related bank holding company's)
most recent published annual report of condition. The Trustee is subject to
Section 310(b) of the TIA.
46
Section 5.12 Collection of Claims Against the Company.
The Trustee is subject to Section 311(a) of the TIA, excluding any
creditor relationship listed in Section 311(b) of the TIA. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the TIA to the
extent indicated therein.
Article VI
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 6.1 Company and Guarantor May Consolidate, Etc., Only on Certain
Terms.
(a) Without the consent of the Holders, the Company shall not
consolidate with or merge into any other Person or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or
trust organized and validly existing under the laws of (i) the United
States of America, (ii) any State thereof (iii) the District of
Columbia or (iv) Bermuda;
(2) in the event that the entity surviving such transaction or
transferee entity is not the Company, such surviving or transferee
entity shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form reasonably satisfactory
to the Trustee, the due and punctual payment of the principal of and
premium, if any and interest (including Additional Amounts, if any),
on all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed and
shall have provided for conversion rights in accordance with Section
12.11;
(3) at the time of consummation of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be
continuing; and
(4) the Company shall have 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 and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
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(b) Without the consent of the Holders, the Guarantor shall not
consolidate with or merge into any other Person or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the
Guarantor is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Guarantor
substantially as an entirety shall be a corporation, partnership or
trust organized and validly existing under the laws of (i) the United
States of America, (ii) any State thereof (iii) the District of
Columbia or (iv) Bermuda;
(2) in the event that the entity surviving such transaction or
transferee entity is not the Guarantor, such surviving or transferee
entity shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form reasonably satisfactory
to the Trustee, the due and punctual payment of the principal of and
premium, if any and interest (including Additional Amounts, if any),
on all the Securities and the performance of every covenant of this
Indenture on the part of the Guarantor to be performed or observed;
(3) at the time of consummation of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be
continuing; and
(4) the Guarantor shall have 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 and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 6.12 Successor Corporation Substituted.
Upon any consolidation or merger by the Company or the Guarantor with
or into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company or the Guarantor substantially as an
entirety to any Person, in accordance with Section 6.1, the successor
corporation formed by such consolidation or into which the Company or Guarantor
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company or the Guarantor under this Indenture with the same effect as if such
successor corporation had been named as the Company or Guarantor herein, and
thereafter, except in the case of a lease to another Person, the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
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Article VII
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 7.1 Without Consent of Holders of Securities.
Without the consent of any Holders of Securities, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may jointly amend this Indenture and the Securities to:
(a) add to the covenants of the Company for the benefit of the Holders
of Securities;
(b) surrender any right or power herein conferred upon the Company;
(c) provide for the conversion rights of Holders of Securities
pursuant to Article 12 if any reclassification or change of the Common Shares or
any consolidation, merger or sale of all or substantially all of the Company's
assets occurs;
(d) provide for the assumption of the Company's obligations to the
Holders of Securities in the case of a merger, consolidation, conveyance,
transfer or lease pursuant to Article 6;
(e) reduce the Conversion Price; provided, however, that such
reduction in the Conversion Price shall not adversely affect the interest of the
Holders of Securities (after taking into account tax and other consequences of
such reduction);
(f) comply with the requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(g) make any changes or modifications to this Indenture necessary in
connection with the registration of any Securities under the Securities Act as
contemplated in the Registration Rights Agreement; provided, however, that such
action pursuant to this clause (g) does not, in the good faith opinion of the
Board of Directors of the Company (as evidenced by a Board Resolution) and the
Trustee, adversely affect the interests of the Holders of Securities in any
material respect;
(h) cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein or which is otherwise
defective, or to make any other provisions with respect to matters or questions
arising under this Indenture which the Company and the Trustee may deem
necessary or desirable and which shall not be inconsistent with the provisions
of this Indenture; provided, however, that such action pursuant to this clause
(h) does not, in the good faith opinion of the Board of Directors of the Company
(as evidenced by a Board Resolution) and the Trustee, adversely affect the
interests of the Holders of Securities in any material respect; or
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(i) add or modify any other provisions with respect to matters or
questions arising under this Indenture which the Company and the Trustee may
deem necessary or desirable and which shall not be inconsistent with the
provisions of this Indenture; provided, however, that such action pursuant to
this clause (i) does not, in the good faith opinion of the Board of Directors of
the Company (as evidenced by a Board Resolution) and the Trustee, adversely
affect the interests of the Holders of Securities in any material respect.
Section 7.2 With Consent of Holders of Securities.
Except as provided below in this Section 7.2, this Indenture or the
Securities may be amended or supplemented, and noncompliance in any particular
instance with any provision of this Indenture or the Securities may be waived,
in each case (i) with the written consent of the Holders of at least a majority
in aggregate principal amount of the Outstanding Securities or (ii) by the
adoption of a resolution, at a meeting of Holders of the Outstanding Securities
at which a quorum is present, by the Holders of a majority in aggregate
principal amount of the Outstanding Securities represented at such meeting.
Without the written consent or the affirmative vote of each Holder of
Securities affected thereby, an amendment or waiver under this Section 7.2 may
not:
(A) change the Maturity of the principal of, or any installment
of interest (including Additional Amounts, if any) on, any Security;
(B) reduce the principal amount of, or premium, if any, on any
Security;
(C) reduce the Interest Rate or interest (including Additional
Amounts, if any) on any Security;
(D) change the currency of payment of principal of, premium, if
any, or interest (including Additional Amounts, if any) on any
Security;
(E) impair the right of any Holder to institute suit for the
enforcement of any payment on or with respect to any Security;
(F) modify the obligation of the Company to maintain an office or
agency in The City of New York pursuant to Section 9.2;
(G) except as permitted by Section 12.11, adversely affect the
Repurchase Right or the right to convert any Security as provided in
Article 12;
(H) modify the provisions in Article 10 relating to the
redemption of the Securities in a manner adverse to the Holders of
Securities;
(I) modify the provisions in Article 13 relating to the Guarantee
in a manner adverse to the Holders of Securities;
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(J) modify the provisions in Article 14 relating to the
subordination provisions of the Securities in a manner adverse to the
Holders of Securities;
(K) modify any of the provisions of this Section, Section 4.4,
Section 15.11 or Section 15.12, except to increase any percentage
contained herein or therein or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby;
or
(L) reduce the requirements of Section 8.4 for quorum or voting,
or reduce the percentage in aggregate principal amount of the
Outstanding Securities the consent of whose Holders is required for
any such supplemental indenture or the consent of whose Holders is
required for any waiver provided for in this Indenture.
It shall not be necessary for any Act of Holders of Securities under
this Section 7.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 7.3 Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities shall be set forth
in a supplemental indenture that complies with the TIA as then in effect.
Section 7.4 Revocation of Consents and Effect of Consents or Votes.
Until an amendment, supplement or waiver becomes effective, a written
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security; provided, however, that unless a record date shall have
been established, any such Holder or subsequent Holder may revoke the consent as
to its Security or portion of a Security if the Trustee receives written notice
of revocation before the date the amendment, supplement or waiver becomes
effective.
An amendment, supplement or waiver becomes effective on receipt by the
Trustee of written consents from or affirmative votes by, as the case may be,
the Holders of the requisite percentage of aggregate principal amount of the
Outstanding Securities, and thereafter shall bind every Holder of Securities;
provided, however, if the amendment, supplement or waiver makes a change
described in any of the clauses (a) through (j) of Section 7.2, the amendment,
supplement or waiver shall bind only each Holder of a Security which has
consented to it or voted for it, as the case may be, and every subsequent Holder
of a Security or portion of a Security that evidences the same Indebtedness as
the Security of the consenting or affirmatively voting Holder, as the case may
be.
Section 7.5 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security:
51
(A) the Trustee may require the Holder of a Security to deliver such
Securities to the Trustee, the Trustee may place an appropriate notation on
the Security about the changed terms and return it to the Holder and the
Trustee may place an appropriate notation on any Security thereafter
authenticated; or
(B) if the Company so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security that
reflects the changed terms.
Failure to make the appropriate notation or issue a new Security shall
not affect the validity and effect of such amendment, supplement or waiver.
Section 7.6 Trustee to Sign Amendment, Etc.
The Trustee shall sign any amendment authorized pursuant to this
Article 7 if the amendment does not adversely affect in any material respect the
rights, duties, liabilities or immunities of the Trustee. If the amendment does
adversely affect in any material respect the rights, duties, liabilities or
immunities of the Trustee, the Trustee may but need not sign the amendment. In
signing or refusing to sign such amendment, the Trustee shall be entitled to
receive and shall be fully protected in relying upon an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that such amendment is
authorized or permitted by this Indenture.
Article VIII
MEETING OF HOLDERS OF SECURITIES
Section 8.1 Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities may be called at any time and from
time to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities.
Section 8.2 Call Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities for any purpose specified in Section 8.1, to be held at such time and
at such place in The City of New York as may be specified in accordance with
this Section 8.2(a). Notice of every meeting of Holders of Securities, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner provided in
Section 15.2, not less than 21 nor more than 180 days prior to the date fixed
for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Securities
shall have requested the Trustee to call a meeting of the Holders of Securities
for any purpose specified in Section 8.1, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have made the first publication of the notice of such meeting
within 21
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days after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Securities in the amount specified, as the case may be, may determine the time
and the place in The City of New York for such meeting and may call such meeting
for such purposes by giving notice thereof as provided in paragraph (a) of this
Section 8.2.
Section 8.3 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities, a
Person shall be (a) a Holder of one or more Outstanding Securities, or (b) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities by such Holder or Holders. The only Persons
who shall be entitled to be present or to speak at any meeting of Holders shall
be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
Section 8.4 Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities 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 Holders of Securities, 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 of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 8.2(a), except that such notice need be given only
once and 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
Securities 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 Securities 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 7.2) shall be effectively passed and decided
if passed or decided by the Persons entitled to vote not less than a majority in
principal amount of Outstanding Securities represented and voting at such
meeting.
Any resolution passed or decisions taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities, whether or not present or represented at the meeting.
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Section 8.5 Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities in regard to proof of the holding of Securities
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 deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities shall
be proved in the manner specified in Section 15.4 and the appointment of any
proxy shall be proved in the manner specified in Section 15.4. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 15.4 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be the Trustee) of the meeting, unless the meeting
shall have been called by the Company or by Holders of Securities as provided in
Section 8.2(b), in which case the Company or the Holders of Securities 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 Persons entitled to vote a majority in principal amount
of the Outstanding Securities represented at the meeting.
(c) At any meeting, each Holder of a Security or proxy shall be
entitled to one vote for each $1,000 principal amount of Securities held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Security 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, except as a Holder of a Security or proxy.
(d) Any meeting of Holders of Securities duly called pursuant to
Section 8.2 at which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in principal amount of the Outstanding
Securities represented at the meeting, and the meeting may be held as so
adjourned without further notice.
Section 8.6 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding Securities 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, at least in duplicate, of the proceedings of each meeting of Holders of
Securities 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
54
was given as provided in Section 8.2 and, if applicable, Section 8.4. Each copy
shall be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one such copy shall be delivered to the Company and
another 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.
Article IX
COVENANTS
Section 9.1 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of and premium,
if any, and interest (including Additional Amounts, if any) in respect of the
Securities in accordance with the terms of the Securities and this Indenture.
The Company will deposit or cause to be deposited with the Trustee as directed
by the Trustee, no later than the day of the Stated Maturity of any Security or
installment of interest (including Additional Amounts, if any), all payments so
due.
Section 9.2 Maintenance of Offices or Agencies.
The Company hereby appoints the Trustee's Corporate Trust Office, or
the office or agency of the Trustee's correspondent in The City of New York, as
its office in The City of New York, where Securities may be:
(i) presented or surrendered for payment;
(ii) surrendered for registration of transfer or exchange;
(iii) surrendered for conversion;
and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served.
The Company may at any time and from time to time vary or terminate
the appointment of any such office or appoint any additional offices for any or
all of such purposes; provided, however, that until all of the Securities have
been delivered to the Trustee for cancellation, or monies sufficient to pay the
principal of and premium, if any, and interest (including Additional Amounts, if
any) on the Securities have been made available for payment and either paid or
returned to the Company pursuant to the provisions of Section 3.3, the Company
will maintain in The City of New York, an office or agency where Securities may
be presented or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange, where Securities may be surrendered for
conversion and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee, and notice to the Holders in accordance with
Section 15.2, of the appointment or termination of any such agents and of the
location and any change in the location of any such office or agency.
55
If at any time the Company shall fail to maintain any such required
office or agency in The City of New York, or shall fail to furnish the Trustee
with the address thereof, presentations and surrenders may be made at, and
notices and demands may be served on, the Corporate Trust Office of the Trustee,
or the office or agency of the Trustee's correspondent in New York City.
Section 9.3 Corporate Existence.
Subject to Article 6, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Company determines that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
Section 9.4 Reports.
(a) The Company shall deliver to the Trustee within 15 days after it
files them with the SEC copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act;
provided, however, the Company shall not be required to deliver to the Trustee
any materials for which the Company has sought and received confidential
treatment by the SEC. The Company also shall comply with the other provisions of
Section 314(a) of the TIA.
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).
(b) If at any time the Company is not subject to Section 13 or 15(d)
of the Exchange Act, upon the request of a Holder of a Security, the Company
will promptly furnish or cause to be furnished to such Holder or to a
prospective purchaser of such Security designated by such Holder, as the case
may be, the information, if any, required to be delivered by it pursuant to Rule
144A(d)(4) under the Securities Act to permit compliance with Rule 144A in
connection with the resale of such Security; provided, however, that the Company
shall not be required to furnish such information in connection with any request
made on or after the date which is two years from the later of the date such
security was last acquired from the Company or an "affiliate" (as defined under
Rule 144 under the Securities Act) of the Company.
Section 9.5 Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company (which as of the date hereof is December
31), an Officers' Certificate stating that in the course of the performance by
the signers of their duties as Officers of the
56
Company, they would normally have knowledge of any failure by the Company to
comply with all conditions, or any Default by the Company with respect to any
covenants, under this Indenture, and further stating whether or not they have
knowledge of any such failure or Default and, if so, specifying each such
failure or Default and the nature thereof.
The Company shall deliver to the Trustee, as soon as possible and in
any event within five days after the Company becomes aware of the occurrence of
any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or default and the action which the
Company proposes to take with respect thereto.
Section 9.6 Resale of Certain Securities.
During the period of two years after the last date of original
issuance of any Securities, the Company shall not, and shall not permit any of
its "affiliates" (as defined under Rule 144 under the Securities Act) to, resell
any Securities, or Common Shares issuable upon conversion of the Securities,
which constitute "restricted securities" under Rule 144, that are acquired by
any of them, within the United States or to "U.S. persons" (as defined in
Regulation S) except pursuant to an effective registration statement under the
Securities Act or an applicable exemption therefrom. The Trustee shall have no
responsibility or liability in respect of the Company's performance of its
agreement in the preceding sentence.
Article X
REDEMPTION OF SECURITIES
Section 10.1 Optional Redemption.
At any time on or after June 1, 2004, the Company may, at its option
and so long as the Trading Price of the Common Shares (multiplied by 100) equals
or exceeds 120% of the then prevailing Conversion Price (as defined in Section
12.1) for at least 20 Trading Days in any consecutive 30-day trading period,
including the last Trading Day of such 30-day period, ending on the Trading Day
prior to the issuance of the Notice of Redemption announcing such redemption
referred to in Section 10.4, redeem the Securities in whole or from time to time
in part, on any date prior to maturity, upon notice as set forth in Section
10.4, at the Redemption Price (expressed as percentages of the principal amount)
set forth below if redeemed on a Redemption Date occurring during the 12-month
period beginning June 1 of the years indicated and ending May 31 of the
following year:
During the Twelve Months Commencing Redemption Price
----------------------------------- ----------------
June 1, 2004 103.90%
June 1, 2005 102.60%
June 1, 2006 101.30%
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plus any interest (including Additional Amounts, if any) accrued and unpaid to,
but excluding, the Redemption Date.
Section 10.2. Notice to Trustee.
If the Company elects to redeem Securities pursuant to the provisions
of Section 10.1, it shall notify the Trustee at least 30 days prior to the
intended Redemption Date of (i) such intended Redemption Date, (ii) the
principal amount of Securities to be redeemed and (iii) the CUSIP numbers of the
Securities to be redeemed.
Section 10.3. Selection of Securities to Be Redeemed.
If fewer than all the Securities are to be redeemed, the Trustee shall
select the particular Securities to be redeemed from the Outstanding Securities
by a method that complies with the requirements of any exchange on which the
Securities are listed, or, if the Securities are not listed on an exchange, on a
pro rata basis or by lot or in accordance with any other method the Trustee
considers fair and appropriate. Securities and portions thereof that the Trustee
selects shall be in amounts equal to the minimum authorized denominations for
Securities to be redeemed or any integral multiple thereof.
If any Security selected for partial redemption is converted or
elected to be repurchased in part before termination of the conversion right or
repurchase right with respect to the portion of the Security so selected, the
converted or repurchased portion of such Security shall be deemed to be the
portion selected for redemption; provided, however, that the Holder of such
Security so converted and deemed redeemed shall not be entitled to any
additional interest payment as a result of such deemed redemption than such
Holder would have otherwise been entitled to receive upon conversion of such
Security. Securities which have been converted during a selection of Securities
to be redeemed may be treated by the Trustee as Outstanding for the purpose of
such selection.
The Trustee shall promptly notify the Company and the Registrar in
writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 10.4. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
15.2 to the Holders of Securities to be redeemed. Such notice shall be given not
less than 20 nor more than 60 days prior to the intended Redemption Date.
All notices of redemption shall state:
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(A) such intended Redemption Date;
(1) the Redemption Price and interest (including Additional
Amounts, if any) accrued and unpaid to, but excluding, the Redemption
Date, if any;
(2) if fewer than all the Outstanding Securities are to be
redeemed, the aggregate principal amount of Securities to be redeemed
and the aggregate principal amount of Securities which will be
Outstanding after such partial redemption;
(3) that on the Redemption Date the Redemption Price and interest
accrued and unpaid to, but excluding, the Redemption Date, if any,
will become due and payable upon each such Security to be redeemed,
and that interest (including Additional Amounts, if any) thereon shall
cease to accrue on and after such date;
(4) the Conversion Price, the date on which the right to convert
the principal of the Securities to be redeemed will terminate and the
places where such Securities may be surrendered for conversion;
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued and unpaid
interest, if any; and
(6) the CUSIP number of the Securities.
The notice given shall specify the last date on which exchanges or
transfers of Securities may be made pursuant to Section 2.7, and shall specify
the serial numbers of Securities and the portions thereof called for redemption.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's written request
delivered at least 15 days prior to the date of the mailing of such Notice
(unless a shorter period shall be acceptable to the Trustee), by the Trustee in
the name of and at the expense of the Company.
Section 10.5 Effect of Notice of Redemption.
Notice of redemption having been given as provided in Section 10.4,
the Securities to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued and unpaid interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with such notice,
such Security shall be paid by the Company at the Redemption Price; provided,
however, the installments of interest on Securities whose Stated Maturity is
prior to or on the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such on the
relevant Record Date according to their terms and the provisions of Section 2.7.
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If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the Interest Rate.
Section 10.6 Deposit of Redemption Price.
Prior to or on any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent an amount of money sufficient to pay the
Redemption Price and accrued and unpaid interest (including Additional Amounts,
if any), in respect of all the Securities to be redeemed on that Redemption
Date, other than any Securities called for redemption on that date which have
been converted prior to the date of such deposit.
If any Security called for redemption is converted, any money
deposited with the Trustee or with a Paying Agent or so segregated and held in
trust for the redemption of such Security shall (subject to any right of the
Holder of such Security or any Predecessor Security to receive interest as
provided in Section 2.1(e)) be paid to the Company upon request by the Company
or, if then held by the Company, shall be discharged from such trust.
Section 10.7 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company designated for that purpose pursuant to
Section 9.2 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or the Holder's attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of any authorized denomination as requested by such
Holder in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
Article XI
REPURCHASE AT THE OPTION OF A HOLDER
Section 11.1 Repurchase Rights.
(a) In the event that a Change in Control shall occur, each Holder
shall have the right (the "Repurchase Right"), at the Holder's option, to
require the Company to repurchase, and upon the exercise of such right the
Company shall repurchase, all of such Holder's Securities not theretofore called
for redemption, or any portion of the principal amount thereof that is equal to
any integral multiple of $1,000 (provided that no single Security may be
repurchased in part unless the portion of the principal amount of such Security
to be Outstanding after such repurchase is equal to an integral multiple of
$1,000), on the date (the "Repurchase Date") that is 45 days after the date of
the Company Notice given pursuant to Section 11.2 in connection with such Change
of Control at the 100% of the principal amount of the Securities to be
repurchased (the "Repurchase Price"), plus interest (including Additional
Amounts, if any) accrued and unpaid
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to, but excluding, the Repurchase Date; provided, however, that installments of
interest on Securities whose Stated Maturity is prior to or on the Repurchase
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such on the relevant Record Date according
to their terms and the provisions of Section 2.1.
(b) Whenever in this Indenture (including Sections 2.1, 4.1(a) and
4.7) or Exhibit A annexed hereto there is a reference, in any context, to the
principal of any Security as of any time, such reference shall be deemed to
include reference to the Repurchase Price payable in respect to such Security 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
Indenture shall not be construed as excluding the Repurchase Price in those
provisions of this Indenture when such express mention is not made.
Section 11.2 Notices; Method of Exercising Repurchase Right, Etc.
(a) Unless the Company shall have theretofore called for redemption
all of the Outstanding Securities, prior to or on the 30th day after the
occurrence of a Change in Control, the Company, or, at the written request and
expense of the Company prior to or on the 30th day after such occurrence, the
Trustee, shall give to all Holders of Securities notice, in the manner provided
in Section 15.2, of the occurrence of the Change of Control and of the
Repurchase Right set forth herein arising as a result thereof (the "Company
Notice"). The Company shall also deliver a copy of such Company Notice of the
Repurchase Right to the Trustee. Each Company Notice of a Repurchase Right shall
state:
(1) the applicable Repurchase Date;
(2) the date by which the Repurchase Right must be exercised;
(3) the Repurchase Price and accrued and unpaid interest
(including Additional Amounts, if any);
(4) a description of the procedure which a Holder must follow to
exercise its Repurchase Right, and the place or places where such
Securities are to be surrendered for payment of the Repurchase Price
and accrued and unpaid interest;
(5) that on the applicable Repurchase Date the Repurchase Price
and accrued and unpaid interest, will become due and payable in cash
upon each such Security designated by the Holder to be repurchased,
and that interest thereon shall cease to accrue on and after said
date;
(6) the Conversion Rate then in effect, the date on which the
right to convert the principal amount of the Securities to be
repurchased will terminate and the place where such Securities may be
surrendered for conversion, and
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(7) the place or places where such Securities, together with the
Option to Elect Repayment certificate included in Exhibit A annexed
hereto are to be delivered for payment of the Repurchase Price and
accrued and unpaid interest.
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 Securities.
If any of the foregoing provisions or other provisions of this Article
11 are inconsistent with applicable law, such law shall govern.
(b) To exercise its Repurchase Right, a Holder shall deliver to the
Trustee on or prior to the close of business on the Business Day immediately
preceding the Repurchase Date:
(1) written notice of the Holder's exercise of such right, which
notice shall set forth the name of the Holder; the certificate numbers
of the Securities to be delivered for repurchase; the portion of the
principal amount of the Securities to be repurchased, which portion
must be $1,000 or an integral multiple of $1,000; that such Securities
are to be repurchased by the Company pursuant to the applicable
provisions of the Securities; and a statement that an election to
exercise the applicable Repurchase Right is being made thereby; and
(2) the Securities with respect to which the Repurchase Right is
being exercised (and, if any Security is to be repurchased in part,
the serial number thereof, and the portion of the principal amount
thereof to be repurchased).
The right of the Holder to convert the Securities with respect to which the
Repurchase Right is being exercised shall continue until the close of business
on the Business Day immediately preceding the Repurchase Date.
(c) Each Holder may withdraw a repurchase notice by delivering to the
Paying Agent a notice (the "Notice of Withdrawal") prior to the close of
business on the Business Day immediately preceding the Repurchase Date. The
notice of withdrawal must state:
(1) the portion of the principal amount of Securities being
withdrawn;
(2) the certificate numbers of the Securities being withdrawn;
and
(3) the portion of the principal amount, if any, of the
Securities that remains subject to the Repurchase Right.
(d) In the event the Repurchase Right shall be exercised in accordance
with the terms hereof, the Company shall pay or cause to be paid to the Trustee
the Repurchase Price in cash, as provided above, for payment to the Holder on
the Repurchase Date, together with accrued and unpaid interest to, but
excluding, the Repurchase Date payable in cash with respect to the Securities as
to which the Repurchase Right has been exercised; provided, however, that
installments of interest that mature prior to or on the Repurchase Date shall be
payable in cash to
62
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Regular Record Date.
(e) If any Security (or portion thereof) surrendered for repurchase
shall not be so paid on the Repurchase Date, the principal amount of such
Security (or portion thereof, as the case may be) shall, until paid, bear
interest to the extent permitted by applicable law from the Repurchase Date at
the Interest Rate, and each Security shall remain convertible into Common Shares
until the principal of such Security (or portion thereof, as the case may be)
shall have been paid or duly provided for.
(f) Any Security which is to be repurchased only in part shall be
surrendered to the Trustee (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form 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 make available for delivery to the Holder of such Security
without service charge, a new Security or Securities, containing identical terms
and conditions, each in an authorized denomination in aggregate principal amount
equal to and in exchange for the unrepurchased portion of the principal of the
Security so surrendered.
(g) All Securities delivered for repurchase shall be delivered to the
Trustee to be canceled at the direction of the Trustee, which shall dispose of
the same as provided in Section 2.15.
Article XII
CONVERSION OF SECURITIES
Section 12.1 Conversion Right and Conversion Price.
Subject to and upon compliance with the provisions of this Article, at
the option of the Holder thereof, any Security or any portion of the principal
amount thereof which is a whole multiple of $1,000 may be converted at the
principal amount thereof, or of such portion thereof, into duly authorized,
fully paid and nonassessable shares of Common Shares, at the Conversion Price,
determined as hereinafter provided, in effect at the time of conversion. Such
conversion right shall expire at the close of business on the Business Day
immediately preceding June 1, 2007.
In case a Security or portion thereof is called for redemption, such
conversion right in respect of the Security or the portion so called, shall
expire at the close of business on the second Business Day preceding the
Redemption Date, unless the Company defaults in making the payment due upon
redemption. In the case of a Change of Control for which the Holder exercises
its Repurchase Right with respect to a Security or portion thereof, such
conversion right in respect of the Security or portion thereof shall expire at
the close of business on the Business Day immediately preceding the Repurchase
Date.
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The price at which the shares of Common Shares shall be delivered upon
conversion (the "Conversion Price") shall be initially equal to $16.05 per
share. The Conversion Price shall be adjusted in certain instances as provided
in paragraphs (a), (b), (c), (d), (e), (f), and (h) of Section 12.4.
Section 12.2 Exercise of Conversion Right.
To exercise the conversion right, the Holder of any Security to be
converted shall surrender such Security duly endorsed or assigned to the Company
or in blank, at the office of any Conversion Agent, accompanied by a duly
completed and signed conversion notice substantially in the form attached to the
Security (or a facsimile thereof) to the Company stating that the Holder elects
to convert such Security or, if less than the entire principal amount thereof is
to be converted, the portion thereof to be converted and pay all taxes or
duties, if any, described in Section 12.9.
Securities surrendered for conversion during the period from the close
of business on any Regular Record Date to the opening of business on the next
succeeding Interest Payment Date (except in the case of any Security whose
Maturity is prior to such Interest Payment Date) shall be accompanied by payment
in New York Clearing House funds or other funds acceptable to the Company of an
amount equal to the interest to be received on such Interest Payment Date on the
principal amount of Securities being surrendered for conversion.
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Shares issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Shares at such
time. As promptly as practicable on or after the conversion date, the Company
shall cause to be issued and delivered to such Conversion Agent a certificate or
certificates representing the number of shares of Common Shares issuable upon
conversion of such Securities, together with payment in lieu of any fraction of
a share as provided in Section 12.3.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Securities.
If Common Shares to be issued upon conversion of a Restricted
Security, or Securities to be issued upon conversion of a Restricted Security in
part only, are to be registered in a name other than that of the Holder of such
Restricted Security, such Holder must deliver to the Conversion Agent a
certificate in substantially the form set forth in the form of Security set
forth in Exhibit A annexed hereto, dated the date of surrender of such
Restricted Security and signed by such Holder, as to compliance with the
restrictions on transfer applicable to such Restricted Security. Neither the
Trustee nor any Conversion Agent, Registrar or Transfer Agent shall be required
to register in a name other than that of the Holder of any Common Shares or
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Securities issued upon conversion of any such Restricted Security not so
accompanied by a properly completed certificate.
The Company hereby initially appoints the Trustee as the Conversion
Agent.
Section 12.3 Fractions of Common Shares.
No fractional shares of Common Shares shall be issued upon conversion
of any Security or Securities. If more than one Security shall be surrendered
for conversion at one time by the same Holder, the number of full shares of
Common Shares which shall be issued upon conversion thereof shall be computed on
the basis of the aggregate principal amount of the Securities (or specified
portions thereof) so surrendered. Instead of any fractional shares which would
otherwise be issued upon conversion of any Security or Securities (or specified
portions thereof), the Company shall pay a cash adjustment in respect of such
fraction (calculated to the nearest one-100th of a share) in an amount equal to
the same fraction of the Trading Price of the Common Shares as of the Trading
Day preceding the date of conversion.
Section 12.4 Adjustment of Conversion Price.
The Conversion Price shall be subject to adjustment, calculated by the
Company, from time to time as follows:
(a) In case the Company shall hereafter pay a dividend or make a
distribution to all holders of the outstanding Common Shares in Common Shares,
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:
(1) the numerator of which shall be the number of shares of
Common Shares outstanding at the close of business on the Record Date
(as defined in Section 12.4(g)) fixed for such determination; and
(2) the denominator of which shall be the sum of such number of
shares and the total number of shares constituting such dividend or
other distribution.
Such reduction shall become effective immediately after the opening of business
on the day following the Record Date. If any dividend or distribution of the
type described in this Section 12.4(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 outstanding Common Shares shall be subdivided into a
greater number of shares, 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
Common Shares shall be combined into a smaller number of shares, 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,
65
such reduction or increase, as the case may be, to become effective immediately
after the opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(c) In case the Company shall issue rights or warrants (other than any
rights or warrants referred to in Section 12.4(d) to all holders of its
outstanding Common Shares entitling them to subscribe for or purchase Common
Shares (or securities convertible into Common Shares) at a price per share (or
having a conversion price per share) less than the Current Market Price (as
defined in Section 12.4(g)) on the Record Date fixed for the determination of
stockholders entitled to receive such rights or warrants, the Conversion Price
shall be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect at the opening of business on the
date after such Record Date by a fraction:
(1) the numerator of which shall be the number of shares of
Common Shares 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 (or the
aggregate conversion price of the convertible securities so offered)
would purchase at such Current Market Price; and
(2) the denominator of which shall be the number of shares of
Common Shares outstanding on the close of business on the Record Date,
plus the total number of additional shares so offered for subscription
or purchase (or into which the convertible securities so offered are
convertible).
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
Common Shares (or securities convertible into Common Shares) is not delivered
pursuant to such rights or warrants, upon the expiration or termination of such
rights or warrants, the Conversion Price shall be readjusted to 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 the delivery of only the
number of shares (or securities convertible into Common Shares) 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
Common Shares at less than such Current Market Price, and in determining the
aggregate offering price of such Common Shares, 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.
(d) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Shares of any class of capital stock of the Company
(other than any dividends or distributions to which Section 12.4(a) applies) or
evidences of its Indebtedness, cash or other assets, including securities, but
excluding (1) any rights or warrants referred to in Section 12.4(c), (2)
dividends or distributions of stock, securities or other property or assets
(including cash) in connection with a reclassification, change, merger,
consolidation, statutory share
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exchange, combination, sale or conveyance to which Section 12.11 applies or (3)
any dividends and distributions paid exclusively in cash (such capital stock,
evidence of its Indebtedness, cash, other assets or securities being distributed
hereinafter in this Section 12.4(d) called the "distributed assets"), then, in
each such case, subject to the third succeeding paragraph of this Section
12.4(d), 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 12.4(g)) with respect to such distribution by a fraction:
(1) the numerator of which shall be the Current Market Price
(determined as provided in Section 12.4(g)) on such date, less the
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and set forth in a Board Resolution)
on such date of the portion of the distributed assets so distributed
applicable to one share of Common Shares (determined on the basis of
the number of shares outstanding on the Record Date); and
(2) the denominator of which shall be such Current Market Price.
Such reduction shall become effective immediately prior to the opening of
business on the day following the Record Date. However, in the event that the
then fair market value (as so determined) of the portion of the distributed
assets so distributed applicable to one share of Common Shares 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 Holder shall
have the right to receive upon conversion of a Security (or any portion thereof)
the amount of distributed assets such Holder would have received had such Holder
converted such Security (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 12.4(d) by reference to the actual or
when issued trading market for any distributed assets 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 12.4(g) 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 Holders.
In the event any such distribution consists of shares of capital stock
of, or similar equity interests in, one or more of the Company's Subsidiaries or
other business units (a "Spin-Off"), the fair market value of the securities to
be distributed shall equal the average of Trading Prices of those securities for
the five consecutive Trading Days commencing on and including the sixth day of
trading of those securities after the effectiveness of the Spin-Off, and the
Current Market Price shall be measured for the same period. In the event,
however, that an underwritten initial public offering
67
of the securities in the Spin-Off occurs simultaneously with the Spin-Off, the
fair market value of the securities distributed in the Spin-Off shall mean the
initial public offering price of such securities and the Current Market Price
shall mean the Trading Price for the Common Shares on the same Trading Day
Rights or warrants distributed by the Company to all holders of Common
Shares entitling the holders thereof to subscribe for or purchase shares of the
Company's capital stock (either initially or under certain circumstances), which
rights or warrants, until the occurrence of a specified event or events
("Trigger Event"):
(3) are deemed to be transferred with such Common Shares;
(4) are not exercisable; and
(5) are also issued in respect of future issuances of Common
Shares;
shall be deemed not to have been distributed for purposes of this Section
12.4(d) (and no adjustment to the Conversion Price under this Section 12.4(d)
will be required) until the occurrence of the earliest Trigger Event. If such
right or warrant is subject to subsequent events, upon the occurrence of which
such right or warrant shall become exercisable to purchase different distributed
assets, 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 or warrant (and a termination or expiration of the existing right or
warrant without exercise by the holder thereof). In addition, in the event of
any distribution (or deemed distribution) of rights or warrants, or any Trigger
Event 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 12.4(d):
(6) in the case of any such rights or warrants which shall all
have been redeemed or repurchased without exercise by any holders
thereof, the Conversion Price shall be readjusted upon such final
redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price
received by a holder of Common Shares with respect to such rights or
warrants (assuming such holder had retained such rights or warrants),
made to all holders of Common Shares as of the date of such redemption
or repurchase; and
(7) in the case of such rights or warrants 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.
For purposes of this Section 12.4(d) and Sections 12.4(a), 12.4(b) and
12.4(c), any dividend or distribution to which this Section 12.4(d) is
applicable that also includes Common Shares, a subdivision or
combination of Common Shares to which Section 12.4(b) applies, or
rights or warrants to subscribe for or purchase Common Shares to which
Section 12.4(c) applies (or any combination thereof), shall be deemed
instead to be:
68
(8) a dividend or distribution of the evidences of Indebtedness,
assets, shares of capital stock, rights or warrants, other than such
Common Shares, such subdivision or combination or such rights or
warrants to which Sections 12.4(a), 12.4(b) and 12.4(c) apply,
respectively (and any Conversion Price reduction required by this
Section 12.4(d) with respect to such dividend or distribution shall
then be made), immediately followed by
(9) a dividend or distribution of such Common Shares, such
subdivision or combination or such rights or warrants (and any further
Conversion Price reduction required by Sections 12.4(a), 12.4(b) and
12.4(c) 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 (x) "the date fixed for the determination of stockholders
entitled to receive such dividend or other distribution", "Record Date
fixed for such determinations" and "Record Date" within the meaning of
Section 12.4(a), (y) "the day upon which such subdivision becomes
effective" and "the day upon which such combination becomes effective"
within the meaning of Section 12.4(b), and (z) as "the date fixed for the
determination of stockholders entitled to receive such rights or warrants",
"the Record Date fixed for the determination of the stockholders entitled
to receive such rights or warrants" and such "Record Date" within the
meaning of Section 12.4(c); and
(B) any Common Shares included in such dividend or distribution shall
not be deemed "outstanding at the close of business on the date fixed for
such determination" within the meaning of Section 12.4(a) and any reduction
or increase in the number of shares of Common Shares resulting from such
subdivision or combination shall be disregarded in connection with such
dividend or distribution.
(e) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Shares cash (excluding any cash that is distributed
upon a reclassification, change, merger, consolidation, statutory share
exchange, combination, sale or conveyance to which Section 12.11 applies or as
part of a distribution referred to in Section 12.4(d)), in an aggregate amount
that, combined together with:
(1) the aggregate amount of any other such distributions to all
holders of Common Shares made exclusively in cash within the 12 months
preceding the date of payment of such distribution, and in respect of
which no adjustment pursuant to this Section 12.4(e) has been made;
plus
(2) the aggregate of any cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and set forth 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 Shares concluded
within the 12 months preceding the date of such distribution, and in
respect of which no adjustment pursuant to Section 12.4(f) has been
made;
69
exceeds 15% of the product of the Current Market Price of the Common Shares
(determined as provided in Section 12.4(g)) on the Record Date with respect to
such distribution times the number of shares of Common Shares 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:
(3) 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 15% and (y) the number of
shares of Common Shares outstanding on the Record Date, and
(4) the denominator of which shall be equal to the Current Market
Price on such date.
However, in the event that the then fair market value (as so determined) of the
portion of cash and other securities, if any, so distributed applicable to one
share of Common Shares 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 Holder shall have the right to receive upon conversion of a
Security (or any portion thereof) the amount of cash in excess of such 15% such
Holder would have received had such Holder converted such Security (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.
(f) In case a tender offer made by the Company or any of its
subsidiaries for all or any portion of the Common Shares 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 set forth 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 set forth 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 Shares expiring within the 12 months
preceding the expiration of such tender offer and in respect of which
no adjustment pursuant to this Section 12.4(f) has been made; plus
(2) the aggregate amount of any distributions to all holders of
the Common Shares made exclusively in cash within 12 months preceding
the expiration of such tender offer and in respect of which no
adjustment pursuant to Section 12.4(e) has been made;
70
exceeds 15% of the product of the Current Market Price of the Common Shares
(determined as provided in Section 12.4(g)) 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 Shares outstanding (including any
tendered shares) at the Expiration Time (such excess, the "Excess Amount"),
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:
(3) the numerator of which shall be (x) the product of (1) the
number of shares of Common Shares outstanding (including any tendered
shares) at the Expiration Time and (2) the Current Market Price of the
Common Shares at the Expiration Time less (y) the Excess Amount; and
(4) the denominator shall be the product of the number of shares
of Common Shares outstanding (including any tendered shares) at the
Expiration Time and the Current Market Price of the Common Shares at
the Expiration Time.
Such reduction (if any) shall 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 or a portion of such purchases are rescinded, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such (or such portion of the) tender offer had not been made. If the
application of this Section 12.4(f) to any tender offer would result in an
increase in the Conversion Price, no adjustment shall be made for such tender
offer under this Section 12.4(f).
(g) For purposes of this Section 12.4, the following terms shall have
the meanings indicated:
(1) "Current Market Price" of a share of Common Shares shall mean
the average of the daily Trading Prices per share of Common Shares for
the ten consecutive Trading Days immediately prior to the date in
question, minus the fair market value per share of Common Shares of
any property (cash or otherwise) then held by the Depositary on behalf
of the existing Company Common Shares holders, then dividing the
resulting value by the number of shares of Common Shares; provided,
however, that if:
(i) 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
Section 12.4(a), (b), (c), (d), (e) or (f) occurs during such ten
consecutive Trading Days, the Trading Price for each Trading Day
prior to the "ex" date for such other event shall be adjusted by
multiplying such Trading Price by the same fraction by which the
Conversion Price is so required to be adjusted as a result of
such other event;
71
(ii) 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 Section 12.4(a),
(b), (c), (d), (e) or (f) occurs on or after the "ex" date for
the issuance or distribution requiring such computation and prior
to the day in question, the Trading Price for each Trading Day on
and after the "ex" date for such other event shall be adjusted by
multiplying such Trading 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
(iii) 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 (i) or (ii) of
this proviso, the Trading 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 Section 12.4(d) or (f), whose determination
shall be conclusive and set forth in a Board Resolution) of the
evidences of Indebtedness, shares of capital stock or assets
being distributed applicable to one share of Common Shares as of
the close of business on the day before such "ex" date.
For purposes of any computation under Section 12.4(f), 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 Section 12.4(a), (b), (c), (d),
(e) or (f) occurs on or after the Expiration Time for the tender or exchange
offer requiring such computation and prior to the day in question, the Trading
Price for each Trading Day on and after the "ex" date for such other event shall
be adjusted by multiplying such Trading 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, when used:
(A) with respect to any issuance or distribution, means the first
date on which the Common Shares trades regular way on the relevant
exchange or in the relevant market from which the Trading Price was
obtained without the right to receive such issuance or distribution;
(B) with respect to any subdivision or combination of Common
Shares, means the first date on which the Common Shares trades regular
way on such exchange or in such market after the time at which such
subdivision or combination becomes effective; and
(C) with respect to any tender or exchange offer, means the first
date on which the Common Shares trades regular way on such exchange or
in such market after the Expiration Time of such offer.
72
Notwithstanding the foregoing, whenever successive adjustments to the Conversion
Price are called for pursuant to this Section 12.4, such adjustments shall be
made to the Current Market Price as may be necessary or appropriate to
effectuate the intent of this Section 12.4 and to avoid unjust or inequitable
results as determined in good faith by the Board of Directors.
(1) "fair market value" shall mean the amount which a willing
buyer would pay a willing seller in an arm's length transaction,
which, in the absence or a current market for such transaction, shall
be as determined in good faith by the Board of Directors.
(2) "Record Date" shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders of
Common Shares have the right to receive any cash, securities or other
property or in which the Common Shares (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).
(h) 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 20 days and the reduction is irrevocable during the
period and the Board of Directors determines in good faith that such reduction
would be in the best interests of the Holders, which determination shall be
conclusive and set forth in a Board Resolution. Whenever the Conversion Price is
reduced pursuant to the preceding sentence, the Company shall mail to the
Trustee and each Holder at the address of such Holder as it appears in the
Register a notice of the reduction at least 15 days prior to the date the
reduced Conversion Price takes effect, and such notice shall state the reduced
Conversion Price and the period during which it will be in effect.
(i) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in such
price; provided, however, that any adjustments which by reason of this Section
12.4(i) are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Article 12
shall be made by the Company and shall be made to the nearest cent or to the
nearest one hundredth of a share, as the case may be. No adjustment need be made
for a change in the par value or no par value of the Common Shares.
(j) In any case in which this Section 12.4 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
Security converted after such Record Date and before the occurrence of such
event the additional shares of Common Shares issuable upon such conversion by
reason of the adjustment required by such event over and above the shares of
Common Shares 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 12.3.
73
(k) For purposes of this Section 12.4, the number of shares of Common
Shares at any time outstanding shall not include shares held in the treasury of
the Company but shall include shares issuable in respect of certificates issued
in lieu of fractions of shares of Common Shares.
(l) If the distribution date for the rights provided in the Company's
rights agreement, if any, occurs prior to the date a Security is converted, the
Holder of the Security who converts such Security after the distribution date is
not entitled to receive the rights that would otherwise be attached (but for the
date of conversion) to the Common Shares received upon such conversion;
provided, however, that an adjustment shall be made to the Conversion Price
pursuant to clause 12.4(b) as if the rights were being distributed to the
holders of the Common Shares immediately prior to such conversion. If such an
adjustment is made and the rights are later redeemed, invalidated or terminated,
then a corresponding reversing adjustment shall be made to the Conversion Price,
on an equitable basis, to take account of such event.
Section 12.5 Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein provided (other
than in the case of an adjustment pursuant to the second paragraph of Section
12.4(h) for which the notice required by such paragraph has been provided), the
Company shall promptly file with the Trustee and any Conversion Agent other than
the Trustee an Officers' Certificate setting forth the adjusted Conversion Price
and showing in reasonable detail the facts upon which such adjustment is based.
Promptly after delivery of such Officers' Certificate, the Company shall prepare
a notice stating that the Conversion Price has been adjusted and setting forth
the adjusted Conversion Price and the date on which each adjustment becomes
effective, and shall mail such notice to each Holder at the address of such
Holder as it appears in the Register within 20 days of the effective date of
such adjustment. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.
Section XII.6 Notice Prior to Certain Actions.
In case at any time after the date hereof:
(1) the Company shall declare a dividend (or any other distribution)
on its Common Shares payable otherwise than in cash out of its capital
surplus or its consolidated retained earnings;
(2) the Company shall authorize the granting to the holders of its
Common Shares of rights or warrants to subscribe for or purchase any shares
of capital stock of any class (or of securities convertible into shares of
capital stock of any class) or of any other rights;
(3) there shall occur any reclassification of the Common Shares (other
than a subdivision or combination of its outstanding Common Shares, a
change in par value, a change from par value to no par value or a change
from no par value to par value), or any merger, consolidation, statutory
share exchange or
74
combination to which the Company is a party and for which approval of any
shareholders of the Company is required, or the sale, transfer or
conveyance of all or substantially all of the assets of the Company; or
(4) there shall occur the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
the Company shall cause to be filed at each office or agency maintained for the
purpose of conversion of securities pursuant to Section 9.3, and shall cause to
be provided to the Trustee and all Holders in accordance with Section 15.2, at
least 20 days (or 10 days in any case specified in clause (1) or (2) above)
prior to the applicable record or effective date hereinafter specified, a notice
stating:
(A) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights or warrants, or, if a record is not to be
taken, the date as of which the holders of record of Common Shares to be
entitled to such dividend, distribution, rights or warrants are to be
determined; or
(B) the date on which such reclassification, merger, consolidation,
statutory share exchange, combination, sale, transfer, conveyance,
dissolution, liquidation or winding up is expected to become effective, and
the date as of which it is expected that holders of record of Common Shares
shall be entitled to exchange their Common Shares for securities, cash or
other property deliverable upon such reclassification, merger,
consolidation, statutory share exchange, sale, transfer, dissolution,
liquidation or winding up.
Neither the failure to give such notice nor any defect therein shall
affect the legality or validity of the proceedings or actions described in
clauses (1) through (4) of this Section 12.6.
Section 12.7 Company to Reserve Common Shares.
The Company shall at all times use its best efforts to reserve and
keep available, free from preemptive rights, out of its authorized but unissued
Common Shares, for the purpose of effecting the conversion of Securities, the
full number of shares of fully paid and nonassessable shares of Common Shares
then issuable upon the conversion of all Outstanding Securities.
Section 12.8 Covenant as to Common Shares.
The Company covenants that all shares of Common Shares which may be
issued upon conversion of Securities will upon issue be fully paid and
nonassessable and, except as provided in Section 12.9, the Company will pay all
taxes, liens and charges with respect to the issue thereof.
Section 12.9 Taxes on Conversions.
A Holder or Person delivering a Security for conversion shall not be
liable for and will be not be required to pay any tax or duty which may be
payable in respect of the issue or
75
delivery of Common Shares on conversion of Securities pursuant hereto, unless
such issuance and delivery is on behalf of a Holder but in another Person's
name.
Section 12.10 Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to the
Trustee to be canceled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 2.17.
Section 12.11 Effect of Reclassification, Consolidation, Merger or Sale.
If any of following events occur, namely:
(1) any reclassification or change of the outstanding Common
Shares (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);
(2) any merger, consolidation, statutory share exchange or
combination of the Company with another corporation as a result of
which holders of Common Shares shall be entitled to receive stock,
securities or other property or assets (including cash) with respect
to or in exchange for such Common Shares; or
(3) 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 Shares shall be entitled to
receive stock, securities or other property or assets (including cash)
with respect to or in exchange for such Common Shares;
the Company or the successor or purchasing corporation, as the case may be,
shall execute with the Trustee a supplemental indenture (which shall comply with
the TIA as in force at the date of execution of such supplemental indenture if
such supplemental indenture is then required to so comply) providing that such
Security shall be convertible into the kind and amount of shares of stock and
other securities or property or assets (including cash) which such Holder would
have been entitled to receive upon such reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or conveyance had
such Securities been converted into Common Shares immediately prior to such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance assuming such holder of Common Shares did not
exercise its rights of election, if any, as to the kind or amount of securities,
cash or other property receivable upon such merger, consolidation, statutory
share exchange, sale or conveyance (provided that, if the kind or amount of
securities, cash or other property receivable upon such merger, consolidation,
statutory share exchange, sale or conveyance is not the same for each share of
Common Shares in respect of which such rights of election shall not have been
exercised ("Non-Electing Share"), then for the purposes of this Section 12.11
the kind and amount of securities, cash or other property receivable upon such
merger, consolidation, statutory share 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
76
shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 12. If, in the case
of any such reclassification, change, merger, consolidation, statutory share
exchange, combination, sale or conveyance, the stock or other securities and
assets receivable thereupon by a holder of Common Shares includes shares of
stock or other securities and assets of a corporation other than the successor
or purchasing corporation, as the case may be, in such reclassification, change,
merger, consolidation, statutory share exchange, 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 Securities 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 11.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder, at the address of such Holder as it
appears on the Register, within 20 days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of such
supplemental indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, mergers, consolidations, statutory share
exchanges, combinations, sales and conveyances.
If this Section 12.11 applies to any event or occurrence, Section 12.4
shall not apply.
Section 12.12 Responsibility of Trustee for Conversion Provisions.
The Trustee, subject to the provisions of Section 5.1, and any
Conversion Agent shall not at any time be under any duty or responsibility to
any Holder of Securities to determine whether any facts exist which may require
any adjustment of the Conversion Price, or with respect to the nature or intent
of any such adjustments when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same. Neither the Trustee, subject to the provisions of Section 5.1, nor any
Conversion Agent shall be accountable with respect to the validity or value (of
the kind or amount) of any Common Shares, which may at any time be issued or
delivered upon the conversion of any Security; and it or they do not make any
representation with respect thereto. Neither the Trustee, subject to the
provisions of Section 5.1, nor any Conversion Agent shall be responsible for any
failure of the Company to make any cash payment or to issue, transfer or deliver
any shares of stock or share certificates or other securities or property upon
the surrender of any Security for the purpose of conversion; and the Trustee,
subject to the provisions of Section 5.1, and any Conversion Agent shall not be
responsible or liable for any failure of the Company to comply with any of the
covenants of the Company contained in this Article.
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Article XIII
GUARANTEE
Section 13.1 Guarantee.
The Guarantor, for consideration received, unconditionally and
irrevocably guarantees to each Holder, and to the Trustee on behalf of each such
Holder, the due and punctual payment of amounts payable at Maturity, Adjusted
Interest Rate, Redemption Price, Change in Control Purchase Price, interest, if
any, in respect of the foregoing, when and as the same shall become due and
payable, according to the terms of the Notes and of this Indenture. In case of
the failure of the Company or any successors thereto punctually to pay any such
amount, the Guarantor hereby agrees to cause such payment to be made punctually
when and as the same shall become due and payable, as if such payment were made
by the Company.
In addition, the Guarantor hereby fully, unconditionally and
irrevocably guarantees to each Holder, and to the Trustee for itself and on
behalf of each such Holder:
(1) the performance of:
(a) each of the covenants and agreements of the Company hereunder and
in the Securities not described in the preceding paragraph or in clause (b)
below, in each case, in accordance with the terms thereof and hereof; and
(b) to the extent it is permitted by applicable law to do so, the
delivery of Common Shares upon any exchange of Securities, according to the
terms thereof and of this Indenture; and
(c) if, and to the extent, but only to, the extent, that the foregoing
guarantee of the obligations described in clause (1)(b) above is not
enforceable in accordance with its terms under applicable law which
restricts or prohibits the Guarantor from guaranteeing the delivery of the
Common Shares upon any exchange of Securities, according to the terms
thereof and of this Indenture, or the Guarantor is otherwise not permitted
to guarantee the performance of such obligations or to honor such
guarantee, the Company shall pay to the Holders an amount in Dollars equal
to the value of the Common Shares such Holders would otherwise be entitled
to receive hereunder and under the Securities in accordance with the terms
thereof, and the Guarantor hereby guarantees such payment in accordance
with the provisions of the first paragraph of this Section 13.1.
In case of the failure of the Company or any successor thereto
punctually to comply with any covenant or agreement described in clause (1)
above, to the extent it is permitted by applicable law to do so the Guarantor
hereby agrees to cause such covenant or agreement to be performed as and when it
shall be provided to be performed hereunder or in the Securities, as if such
performance were performed by the Company.
In all respects, the Guarantor hereby further agrees that its
respective obligations hereunder shall be absolute and unconditional,
irrespective of, and shall be unaffected by, any invalidity, irregularity or
unenforceability of any such Security or this Indenture, the absence of any
action to enforce the same, the granting of any waiver or consent by any Holder
with respect to any provisions thereof, the recovery of any judgment against the
Company or any action to
78
enforce the same, or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of the Guarantor.
The Guarantor hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of merger or bankruptcy of the
Company, any right to require a proceeding first against the Company, the
benefit of discussion, protest or notice with respect to any such Security and
all demands whatsoever and covenants that this Guarantee will not be discharged
except by complete performance of the obligations contained in any such Security
and in this Guarantee.
If the Trustee or any Holder is required by any court or otherwise to
return to the Company or the Guarantor or any custodian, receiver, liquidator,
trustee, or other similar official acting in relation to the Company or the
Guarantor, any amount paid to the Trustee or such Holder in respect of a
Security, this Guarantee, to the extent theretofore discharged by the payment of
such amount, shall be reinstated in full force and effect. The Guarantor further
agrees that, as between the Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, (i) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Four hereof for the purposes of
this Guarantee, and (ii) in the event of any declaration of acceleration of such
obligations as provided in Article Four hereof, such obligations (whether or not
due and payable) shall forthwith become due and payable by the Guarantor for the
purpose of this Guarantee.
The Guarantor shall be subrogated to all rights of the Holder of any
Securities and the Trustee against the Company pursuant to the provisions of
this Guarantee; provided, however, that until the payment in full of all
obligations and all other amounts payable under this Guarantee, the Guarantor
hereby irrevocably waives any claim or other rights which they each may now or
hereafter acquire against the Company that arises from the existence, payment,
performance or enforcement of the Guarantor's obligations under this Guarantee,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, any right to participate in any
claim or remedy of any Holder and the Trustee on behalf of such Holder against
the Company or any collateral which any such Holder or the Trustee on behalf of
such Holder hereafter acquires, 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 security on account of such claim or other rights. If any amount
shall be paid to the Guarantor in violation of the preceding sentence at any
time prior to the payment in full of all obligations and all other amounts
payable under this Guarantee, such amount shall be deemed to have been paid to
the Guarantor for the benefit of, and held in trust for the benefit of, any
Holder and the Trustee on behalf of such Holder, and shall forthwith be paid to
the Trustee for the benefit of such Holder to be credited and applied upon such
guaranteed obligations, whether matured or unmatured, in accordance with the
terms of this Indenture. The Guarantor acknowledges that the waiver set forth in
this Section 13.1 is knowingly made.
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Section 13.2 Execution and Delivery of Guarantee.
To evidence its Guarantee provided in this Article XIII, the Guarantor
hereby agrees to execute the Guarantee, substantially in the form of Exhibit B
and which shall be endorsed on each Security authenticated and delivered by the
Trustee after such Guarantee is executed by either manual or facsimile signature
of an Officer of the Guarantor. The validity and enforceability of the Guarantee
shall not be affected by the fact that it is not affixed to the Note.
If the Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall be valid
nevertheless.
The delivery of any Securities by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantee
endorsed thereon on behalf of the Guarantor. The Guarantor hereby agrees that
its Guarantee set forth in this Article XIII shall remain in full force and
effect notwithstanding any failure to endorse on each Security a notation of
such Guarantee.
Section 13.3 Guarantee Obligations Subordinated to Guarantor Senior Debt.
The Guarantor covenants and agrees, and each Holder of a Note, by its
acceptance thereof, likewise covenants and agrees, that all payments pursuant to
the Guarantee made by or on behalf of the Guarantor are hereby expressly made
subordinate and subject in right of payment as provided in this Article Thirteen
to the prior payment in full in cash of all amounts payable under all existing
and future Guarantor Senior Debt.
This Section 13.3 and the following Sections 13.4 through 13.16 of
this Article Thirteen shall constitute a continuing offer to all persons who, in
reliance upon such provisions, become holders of, or continue to hold Guarantor
Senior Debt and, to the extent set forth in Section 13.5(b), holders of
Designated Senior Debt; and such provisions are made for the benefit of the
holders of Guarantor Senior Debt and, to the extent set forth in Section
13.5(b), holders of Designated Senior Debt; and such holders (to such extent)
are made obligees hereunder and they or each of them may enforce such
provisions.
Section 13.4 Payment Over of Proceeds upon Dissolution, etc., of the
Guarantor.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Guarantor or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding-up of the Guarantor, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the benefit
of creditors or any other marshalling of assets or liabilities of the Guarantor,
then and in any such event:
(1) the holders of all Guarantor Senior Debt shall be entitled to
receive payment in full in cash or, as acceptable to the holders of
such Guarantor Senior Debt, in any other manner of all amounts due on
or in respect of all such Guarantor Senior Debt, or provision shall be
made for such payment, before the Holders of the Notes are entitled to
receive, pursuant to this Guarantee, any
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payment or distribution of any kind or character by or on behalf of
the Guarantor on account of the Guarantor's obligations under the
Notes; and
(2) any payment or distribution of assets of the Guarantor of the
kind or character, whether in cash, property or securities, by set-off
or otherwise, to which the Holders or the Trustee would be entitled
but for the subordination provisions of this Article Thirteen shall be
paid by the liquidating trustee or agent or other person making such
payment or distribution, whether a trustee in bankruptcy, a receiver
or liquidating trustee or otherwise, directly to the holders of
Guarantor Senior Debt or its representative or representatives or to
the trustee or trustees under any indenture under which any
instruments evidencing any of the Guarantor Senior Debt may have been
issued, ratably according to the aggregate amounts remaining unpaid on
account of the Guarantor Senior Debt held or represented by each, to
the extent necessary to make payment in full in cash of all the
Guarantor Senior Debt remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of the Guarantor
Senior Debt; and
(3) in the event that, notwithstanding the foregoing provisions
of this Section 13.4, the Trustee or the Holder of any Note shall have
received any payment or distribution of assets of the Guarantor of any
kind or character, whether in cash, property or securities, in respect
of any obligations of such Guarantor under this Guarantee before all
Guarantor Senior Debt is paid in full in cash or payment thereof
provided for, then and in such event such payment or distribution
shall be paid over or delivered forthwith to the Senior Representative
for application to the payment of all the Guarantor Senior Debt
remaining unpaid, to the extent necessary to pay all of the Guarantor
Senior Debt in full in cash, after giving effect to any concurrent
payment or distribution to or for the holders of the Guarantor Senior
Debt. Any such payment or distribution of assets received by the
Trustee, which is required to be paid over to the Senior
Representative, will be held in trust by the Trustee for the benefit
of the holders of the Guarantor Senior Debt.
Section 13.5 Suspension of Guarantee Obligations When Guarantor Senior Debt
in Default.
(a) Unless Section 13.4 shall be applicable, after the occurrence of a
Payment Default with respect to any Guarantor Senior Debt no payment or
distribution of any assets of the Guarantor of any kind or character shall be
made by or on behalf of the Guarantor on account of the Guarantor's obligations
pursuant to the Notes or on account of the purchase, redemption, defeasance or
other acquisition of the obligations pursuant to the Notes or on account of any
other obligations of the Guarantor under this Guarantee unless and until such
Payment Default shall have been cured or waived or shall have ceased to exist or
the Guarantor Senior Debt as to which such Payment Default relates shall have
been discharged or paid in full in cash, after which, subject to Section 13.4
(if applicable), the Guarantor shall resume making any and all required payments
in respect of its obligations under this Guarantee.
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(b) Unless Section 13.4 shall be applicable, during any Payment
Blockage Period with respect to any Designated Guarantor Senior Debt, no payment
or distribution of any assets of the Guarantor of any kind or character shall be
made by or on behalf of the Guarantor on account of the Guarantor's obligations
on the Notes or on account of the purchase, redemption, defeasance or other
acquisition of the Guarantor's obligations on the Notes or on account of any of
the other obligations of the Guarantor under this Guarantee; provided that the
foregoing prohibition shall not apply unless such Payment Blockage Period has
been instituted under Section 14.3(b) by a Senior Representative acting for
holders of Designated Senior Debt which also constitutes Designated Guarantor
Senior Debt. Upon the termination of any Payment Blockage Period, subject to
Section 13.5 (if applicable), the Guarantor shall resume making any and all
required payments in respect of its obligations under this Guarantee.
(c) In the event that, notwithstanding the foregoing, the Trustee or
the Holder of any Note shall have received any payment from the Guarantor
prohibited by the foregoing provisions of this Section 13.5, then and in such
event such payment shall be paid over and delivered forthwith to the Senior
Representative initiating the Payment Blockage Period, in trust for distribution
to the holders of Guarantor Senior Debt or, if no amounts are then due in
respect of Guarantor Senior Debt, prompt return to the Guarantor, or as a court
of competent jurisdiction shall direct.
Section 13.6 Waiver of Subrogation.
The Guarantor hereby irrevocably 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 the Guarantor's obligations
under this 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 security on account of
such claim or other rights. If any amount shall be paid to the 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 the Guarantor for
the benefit of, and held in trust for the benefit of, the Holders of the Notes,
and shall, subject to the subordination provisions of this Article Thirteen and
to Article Fourteen, 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. The 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
13.6 is knowingly made in contemplation of such benefits.
Section 13.7 Guarantee Subordination Provisions Solely To Define Relative
Rights.
The subordination provisions of this Article are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Notes on the one hand and the holders of Guarantor Senior Debt and, to the
extent set forth in Section 13.5, holders of Designated
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Senior Debt on the other hand. Nothing contained in this Article Thirteen or
elsewhere in this Indenture or in the Notes is intended to or shall (a) impair,
as among the Guarantor, its creditors other than holders of its Guarantor Senior
Debt and the Holders of the Notes, the obligation of the Guarantor, which is
absolute and unconditional, to make payments to the Holders in respect of its
obligations under this Guarantee as and when the same shall become due and
payable in accordance with their terms; or (b) affect the relative rights
against the Guarantor of the Holders of the Notes and creditors of the Guarantor
other than the holders of the Guarantor Senior Debt; or (c) prevent the Trustee
or the Holder of any Note from exercising all remedies otherwise permitted by
applicable law upon Default or an Event of Default under this Indenture, subject
to the rights, if any, under the subordination provisions of this Article
Thirteen of the holders of Guarantor Senior Debt, to the extent set forth in
Section 13.5, holders of Designated Senior Debt (1) in any case, proceeding,
dissolution, liquidation or other winding-up, assignment for the benefit of
creditors or other marshaling of assets and liabilities of the Guarantor
referred to in Section 13.4, to receive, pursuant to and in accordance with such
Section, cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder, or (2) under the conditions specified in Section 13.5,
to prevent any payment prohibited by such Section or enforce their rights
pursuant to Section 13.5(c).
The failure by the Guarantor to make a payment in respect of its
obligations under this Guarantee by reason of any provision of this Article
Thirteen shall not be construed as preventing the occurrence of a Default or an
Event of Default hereunder.
Section 13.8 Trustee To Effectuate Subordination of Guarantee Obligations.
Each Holder of a Note by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article Thirteen and appoints
the Trustee his attorney-in-fact for any and all such purposes, including, in
the event of any dissolution, winding-up, liquidation or reorganization of the
Guarantor whether in bankruptcy, insolvency, receivership proceedings, or
otherwise, the timely filing of a claim for the unpaid balance of the
Indebtedness of the Guarantor owing to such Holder in the form required in such
proceedings and the causing of such claim to be approved. If the Trustee does
not file such a claim prior to 30 days before the expiration of the time to file
such a claim, the holders of Guarantor Senior Debt, or any representative, may
file such a claim on behalf of Holders of the Notes.
Section 13.9 No Waiver of Guarantee Subordination Provisions.
(a) No right of any present or future holder of the Guarantor Senior
Debt or Designated Senior Debt to enforce subordination as herein provided shall
at any time in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or the Guarantor or by any act or failure to act, in
good faith, by any such holder, or by any non-compliance by the Company or the
Guarantor with the terms, provisions and covenants of this Indenture, regardless
of any knowledge thereof any such holder may have or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this Section
13.9, the holders of Guarantor Senior Debt may, at any time and from time to
time, without the consent of
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or notice to the Trustee or the Holders of the Notes, without incurring
responsibility to the Holders of the Notes and without impairing or releasing
the subordination provided in this Article Thirteen or the obligations hereunder
of the Holders of the Notes to the holders of such Guarantor Senior Debt, do any
one or more of the following: (1) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, such Guarantor Senior Debt
or any Senior Debt as to which such Guarantor Senior Debt relates or any
instrument evidencing the same or any agreement under which such Guarantor
Senior Debt or such Senior Debt is outstanding; (2) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Guarantor Senior Debt or any Senior Debt as to which such Guarantor Senior Debt
relates; (3) release any person liable in any manner for the collection or
payment of such Guarantor Senior Debt or any Senior Debt as to which such
Guarantor Senior Debt relates; and (4) exercise or refrain from exercising any
rights against the Guarantor and any other person; provided that in no event
shall any such actions limit the right of the Holders of the Notes to take any
action to accelerate the maturity of the Notes pursuant to Article Four hereof
or to pursue any rights or remedies hereunder or under applicable laws if the
taking of such action does not otherwise violate the terms of this Indenture.
Section 13.10 Guarantor To Give Notice to Trustee.
(a) The Company and the Guarantor shall give prompt written notice to
the Trustee of any fact known to the Guarantor which would prohibit the making
of any payment to or by the Trustee in respect of the Notes. Notwithstanding the
subordination provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Notes, unless and until the Trustee shall have received written
notice thereof at its Corporate Trust Office from the Company, the Guarantor or
a holder of its Guarantor Senior Debt or from any trustee, fiduciary or agent
therefor; and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of this Section 13.10, shall be entitled in all
respects to assume that no such facts exist; provided that if the Trustee shall
not have received the notice provided for in this Section 13.10 at least two
Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose under this Indenture (including, without
limitation, the payment of the principal of or interest on any Note), then,
anything herein contained to the contrary notwithstanding but without limiting
the rights and remedies of the holders of such Guarantor Senior Debt or any
trustee, fiduciary or agent thereof, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
which may be received by it within two Business Days prior to such date; nor
shall the Trustee be charged with knowledge of the curing of any such default or
the elimination of the act or condition preventing any such payment unless and
until the Trustee shall have received an Officers' Certificate from the
Guarantor to such effect.
(b) Subject to the provisions of Section 5.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice to the Trustee, by a
person representing himself to be a holder of Guarantor Senior Debt (or a
trustee, fiduciary or agent therefor). In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of any
person as a holder of Guarantor Senior Debt to participate in any payment or
distribution pursuant to this
84
Article Thirteen, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Guarantor Senior Debt
held by such person, the extent to which such person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such person under this Article Thirteen, and if such evidence is not furnished,
the Trustee may defer any payment to such person pending judicial determination
as to the right of such person to receive such payment.
Section 13.11 Reliance on Judicial Order or Certificate of Liquidating
Agent Regarding Dissolution, etc., of Guarantor.
Upon any payment or distribution of assets of the Guarantor referred
to in this Article Thirteen, the Trustee, subject to the provisions of Section
5.1, and the Holders shall be entitled to rely upon any order or decree entered
by any court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding-up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of creditors,
agent or other person making such payment or distribution, delivered to the
Trustee or to the Holders, for the purpose of ascertaining the persons entitled
to participate in such payment or distribution, the holders of Guarantor Senior
Debt and other Indebtedness of the Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Thirteen; provided that the foregoing shall
apply only if such court has been fully apprised of the provisions of this
Article Thirteen.
Section 13.12 Rights of Trustee as a Holder of Guarantor Senior Debt;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Thirteen with respect to any Guarantor Senior
Debt which may at any time be held by the Trustee, to the same extent as the
other holder of such Guarantor Senior Debt, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Section 13.13 Article Thirteen Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article Thirteen shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article Thirteen in addition to or in place of the Trustee;
provided that Section 13.12 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
Section 14.14 No Suspension of Remedies Subject to Rights of Holders
of Guarantor Senior Debt.
Nothing contained in this Article Thirteen shall limit the right of
the Trustee or the Holders of Notes to take any action to accelerate the
maturity of the Notes pursuant to
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Article Four or to pursue any rights or remedies hereunder or under applicable
law, subject to the rights, if any, under this Article Thirteen of the holders,
from time to time, of Guarantor Senior Debt.
Section 13.15 Trustee's Relation to Guarantor Senior Debt.
With respect to the holders of Guarantor Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Thirteen (and in Article Fourteen
with respect to Senior Debt), and no implied covenants or obligations with
respect to the holders of Guarantor Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Guarantor Senior Debt and the Trustee shall not
be liable to any holder of Guarantor Senior Debt if it shall mistakenly pay over
or deliver to Holders, the Company or any other person moneys or assets to which
any holder of Guarantor Senior Debt shall be entitled by virtue of this Article
Thirteen or otherwise.
Section 13.16 Subrogation.
Upon the payment in full in cash of all amounts payable under or in
respect of Guarantor Senior Debt and of all Senior Debt of the Company, the
Holders shall be subrogated to the rights of the holders of such Guarantor
Senior Debt to receive payments or distributions of assets of the Guarantor made
on such Guarantor Senior Debt until all amounts due under the Guarantee shall be
paid in full; and for the purposes of such subrogation, no payments or
distributions to holders of such Guarantor Senior Debt of any cash, property or
securities to which Holders of the Notes would be entitled except for the
provisions of this Article Thirteen, and no payment pursuant to the provisions
of this Article Thirteen to holders of such Guarantor Senior Debt by the
Holders, shall, as between the Guarantor, its creditors other than holders of
such Guarantor Senior Debt and the Holders, be deemed to be a payment by such
Guarantor to or on account of such Guarantor Senior Debt, its being understood
that the provisions of this Article Thirteen are solely for the purpose of
defining the relative rights of the holders of such Guarantor Senior Debt, on
the one hand, and the Holders, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article Thirteen shall have
been applied, pursuant to the provisions of this Article Thirteen, to the
payment of all amounts payable under the Guarantor Senior Debt, then and in such
case, the Holders shall be entitled to receive from the holders of such
Guarantor Senior Debt at the time outstanding any payments or distributions
received by such holders of Guarantor Senior Debt in excess of the amount
sufficient to pay all amounts payable under or in respect of such Guarantor
Senior Debt in full.
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Article XIV
SUBORDINATION OF NOTES
Section 14.1 Notes Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a Note, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article Fourteen, the Indebtedness
represented by the Notes are hereby expressly made subordinate and subject in
right of payment as provided in this Article to the prior payment in full in
cash of all amounts payable under all existing and future Senior Debt.
This Article Fourteen shall constitute a continuing offer to all
persons who, in reliance upon such provisions, become holders of, or continue to
hold Senior Debt; and such provisions are made for the benefit of the holders of
Senior Debt; and such holders are made obligees hereunder and they or each of
them individually or through their representative may enforce such provisions.
Section 14.2 Payment Over of Proceeds upon Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relating to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other
winding-up of the Company, whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy, then and in any such event:
(1) the holders of all Senior Debt shall be entitled to receive
payment in full in cash of all obligations due in respect of such
Senior Debt before the Holders of the Notes are entitled to receive
any payment or distribution of any kind or character on account of the
Notes; and
(2) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, by set-off
or otherwise, to which the Holders or the Trustee would be entitled
but for the provisions of this Article shall be paid by the
liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Debt or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing
any of such Senior Debt may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Senior Debt held
or represented by each, to the extent necessary to make payment in
full in cash of all Senior Debt remaining unpaid, after giving effect
to any concurrent payment or distribution to the holders of such
Senior Debt; and
(3) in the event that, notwithstanding the foregoing provisions
of this Section 14.2, the Trustee or the Holder of any Note shall have
received any
87
payment or distribution of properties or assets of the Company of any
kind or character, whether in cash, property or securities, by set off
or otherwise in respect of the Notes before all Senior Debt is paid or
provided for in full in cash, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee
in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other person making payment or distribution of assets of the
Company for application to the payment of all Senior Debt remaining
unpaid, to the extent necessary to pay all Senior Debt in full in
cash, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Debt. Any such payment or distribution of
the assets received by the Trustee, which is required to be paid over
to the Senior Representative, will be held in trust by the Trustee for
the benefit of the holders of the Senior Debt.
The consolidation of the Company with, or the merger of the Company
with or into, another person or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another person upon the terms and conditions set
forth in Article Five hereof shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company for the purposes of this
Article if the person formed by such consolidation or the surviving entity of
such merger or the person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in such Article Five.
Section 14.3 Suspension of Payment When Designated Senior Debt is in
Default.
(a) Unless Section 14.2 shall be applicable, upon the occurrence of a
Payment Default, no direct or indirect payment or distribution of any assets of
the Company of any kind or character shall be made by or on behalf of the
Company on account of the Notes unless and until such Payment Default shall have
been cured or waived or shall have otherwise ceased to exist or such Senior Debt
shall have been discharged or paid in full in cash, after which, subject to
Section 14.2 (if applicable), the Company shall resume making any and all
required payments in respect of the Notes, including any missed payments.
(b) Unless Section 14.2 shall be applicable, upon (1) the occurrence
of a Non-payment Default and (2) receipt by the Trustee from the representatives
of any holders of Designated Senior Debt of written notice of such occurrence (a
"Payment Blockage Notice") stating that a Non-Payment Default has occurred and
is continuing pursuant to Section 14.3(b) of this Indenture, no payment or
distribution of any assets of the Company of any kind or character shall be made
by or on behalf of the Company on account of the Notes for a period ("Payment
Blockage Period") commencing on the date of receipt by the Trustee of such
notice unless and until the earlier to occur of the following events (subject to
any blockage of payments that may then be in effect under Section 14.2 or
subsection (a) of this Section 14.3) (x) 179 days shall have elapsed since the
Payment Blockage Notice was received by the Trustee, (y) such Non-payment
Default shall have been cured or waived or shall have ceased to exist (provided
that no other Payment Default or Non-payment Default has occurred and is then
continuing after giving effect
88
to such cure or waiver) or (z) such Payment Blockage Period shall have been
terminated by written notice to the Company or the Trustee from the
representatives initiating such Payment Blockage Period, after which, subject to
Section 14.2 (if applicable), the Company shall promptly resume making any and
all required payments in respect of the Notes, including any missed payments.
Notwithstanding any other provision of this Indenture, during any consecutive
365-day period, the aggregate number of days in which payments due on the Notes
may not be made as a result of nonpayment defaults on Designated Senior Debt
shall not exceed 179 days, and there shall be a period of at least 186
consecutive days in each consecutive 365-day period when such payments are not
prohibited. No event or circumstance that creates a default under any Designated
Senior Debt that (i) gives rise to the commencement of a Payment Blockage Period
or (ii) exists at the commencement of or during any Payment Blockage Period
shall be made the basis for the commencement of any subsequent Payment Blockage
Period unless such default has been cured or waived for a period of not less
than 90 consecutive days following the commencement of the initial Payment
Blockage Period.
(c) In the event that, notwithstanding the foregoing, the Trustee or
the Holder of any Note shall have received any payment or distribution
prohibited by the foregoing provisions of this Section 14.3, then and in such
event such payment or distribution shall be paid over and delivered forthwith to
representatives of the Holders or as a court of competent jurisdiction shall
direct for application to the payment of any due and unpaid Senior Debt, to the
extent necessary to pay all such due and unpaid Senior Debt in cash, after
giving effect to any concurrent payment to or for the holders of Senior Debt.
Section 14.4 Trustee's Relation to Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article Fourteen (and in Article Thirteen with
respect to existing and future Guarantor Senior Debt), and no implied covenants
or obligations with respect to the holders of Senior Debt shall be read into
this Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt and the Trustee shall not be liable
to any holder of Senior Debt if it shall mistakenly pay over or deliver to
Holders, the Company, the Guarantor or any other person moneys or assets to
which any holder of Senior Debt shall be entitled by virtue of this Article
Fourteen or otherwise.
Section 14.5 Subrogation to Rights of Holders of Senior Debt.
Upon the payment in full in cash of all Senior Debt, the Holders of
the Notes shall be subrogated to the rights of the holders of such Senior Debt
to receive payments and distributions of cash, property and securities
applicable to the Senior Debt until the principal of and interest on the Notes
shall be paid in full in cash or cash equivalents. For purposes of such
subrogation, no payments or distributions to the holders of Senior Debt of any
cash, property or securities to which the Holders of the Notes or the Trustee
would be entitled except for the provisions of this Article, and no payments
over pursuant to the provisions of this Article to the holders of Senior Debt by
Holders of the Notes or the Trustee shall, as among the Company, its creditors
89
other than holders of Senior Debt, and the Holders of the Notes, be deemed to be
a payment or distribution by the Company to or on account of the Senior Debt.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article Fourteen shall have
been applied, pursuant to the provisions of this Article Fourteen, to the
payment of all amounts payable under the Senior Debt of the Company, then and in
such case the Holders shall be entitled to receive from the holders of such
Senior Debt at the time outstanding any payments or distributions received by
such holders of such Senior Debt in excess of the amount sufficient to pay all
amounts payable under or in respect of such Senior Debt in full in cash or cash
equivalents.
Section 14.6 Provisions Solely To Define Relative Rights.
The provisions of this Article Fourteen are and are intended solely
for the purpose of defining the relative rights of the Holders of the Notes on
the one hand and the holders of Senior Debt on the other hand. Nothing contained
in this Article Fourteen or elsewhere in this Indenture or in the Notes is
intended to or shall (a) impair, as among the Company, its creditors other than
holders of Senior Debt and the Holders of the Notes, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the Notes
the principal of, premium, if any, and interest on the Notes as and when the
same shall become due and payable in accordance with their terms; or (b) affect
the relative rights against the Company of the Holders of the Notes and
creditors of the Company other than the holders of Senior Debt; or (c) prevent
the Trustee or the Holder of any Note from exercising all remedies otherwise
permitted by applicable law upon a Default or an Event of Default under this
Indenture, subject to the rights, if any, under this Article Fourteen of the
holders of Senior Debt (1) in any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other marshalling
of assets and liabilities of the Company referred to in Section 14.2, to
receive, pursuant to and in accordance with such Section, cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder, or
(2) under the conditions specified in Section 14.3, to prevent any payment
prohibited by such Section or enforce their rights pursuant to Section 14.3(c).
The failure to make a payment on the Notes by reason of any provision
of this Article Fourteen shall not be construed as preventing the occurrence of
a Default or an Event of Default hereunder.
Section 14.7 Trustee To Effectuate Subordination.
Each Holder of a Note by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article Fourteen and appoints
the Trustee his attorney-in-fact for any and all such purposes, including, in
the event of any dissolution, winding-up, liquidation or reorganization of the
Company whether in bankruptcy, insolvency, receivership proceedings, or
otherwise, the timely filing of a claim for the unpaid balance of the
Indebtedness of the Company owing to such Holder in the form required in such
proceedings and the causing of such claim to be approved. If the Trustee does
not file such a claim prior to 30 days before the expiration of the time to file
90
such a claim, the holders of Senior Debt, or any Senior Representative, may file
such a claim on behalf of Holders of the Notes.
Section 14.8 No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
(b) Without limiting the generality of subsection (a) of this Section
14.8, the holders of Senior Debt may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Notes, without
incurring responsibility to the Holders of the Notes and without impairing or
releasing the subordination provided in this Article Fourteen or the obligations
hereunder of the Holders of the Notes to the holders of Senior Debt, do any one
or more of the following: (1) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding; (2)
sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing Senior Debt; (3) release any person liable in any manner
for the collection or payment of Senior Debt; and (4) exercise or refrain from
exercising any rights against the Company and any other person; provided that in
no event shall any such actions limit the right of the Holders of the Notes to
take any action to accelerate the maturity of the Notes pursuant to Article Five
hereof or to pursue any rights or remedies hereunder or under applicable laws if
the taking of such action does not otherwise violate the terms of this
Indenture.
Section 14.9 Notice to Trustee.
(a) The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Notes. Notwithstanding the provisions of this
Article Fourteen or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Notes, unless and
until the Trustee shall have received written notice thereof from the Company or
a holder of Senior Debt or from any trustee, fiduciary or agent therefor; and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of this Section 14.9, shall be entitled in all respects to assume
that no such facts exist; provided that if the Trustee shall not have received
the notice provided for in this Section 14.9 at least two Business Days prior to
the date upon which by the terms hereof any money may become payable for any
purpose under this Indenture (including, without limitation, the payment of the
principal of or interest on any Note), then, anything herein contained to the
contrary notwithstanding but without limiting the rights and remedies of the
holders of Senior Debt or any trustee, fiduciary or agent thereof, the Trustee
shall have full power and authority to receive such money and to apply the same
to the purpose for which such money was received and shall not be affected by
any notice to the contrary which may be received
91
by it within two Business Days prior to such date; nor shall the Trustee be
charged with knowledge of the curing of any such default or the elimination of
the act or condition preventing any such payment unless and until the Trustee
shall have received an Officers' Certificate to such effect.
(b) Subject to the provisions of Section 5.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice to the Trustee by a
person representing himself to be a holder of Senior Debt (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
holder of Senior Debt (or a trustee, fiduciary or agent therefor). In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any person as a holder of Senior Debt to participate in
any payment or distribution pursuant to this Article Fourteen, the Trustee may
request such person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Debt held by such person, the extent to which
such person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such person under this Article Fourteen,
and if such evidence is not furnished, the Trustee may defer any payment to such
person pending judicial determination as to the right of such person to receive
such payment.
Section 14.10 Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article Fourteen, the Trustee, subject to the provisions of Section 5.1,
and the Holders, shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding-up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of creditors,
agent or other person making such payment or distribution, delivered to the
Trustee or to the Holders, for the purpose of ascertaining the persons entitled
to participate in such payment or distribution, the holders of Senior Debt and
other Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article; provided that the foregoing shall apply only if such
court has been fully apprised of the provisions of this Article Fourteen.
Section 14.11 Rights of Trustee as a Holder of Senior Debt; Preservation of
Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Fourteen with respect to any Senior Debt which
may at any time be held by it, to the same extent as any other holder of Senior
Debt, and nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article Fourteen shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 6.7.
Section 14.12 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this
92
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article
Fourteen in addition to or in place of the Trustee; provided that Section 3.1
shall not apply to the Company or any Affiliate of the Company if it or such
Affiliate acts as Paying Agent.
Section 14.13 No Suspension of Remedies.
Nothing contained in this Article Fourteen shall limit the right of
the Trustee or the Holders of Notes to take any action to accelerate the
maturity of the Notes pursuant to Article Four or to pursue any rights or
remedies hereunder or under applicable law, subject to the rights, if any, under
this Article Fourteen of the holders, from time to time, of Senior Debt.
Article XV
OTHER PROVISIONS OF GENERAL APPLICATION
Section 15.1 Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA which are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
Section 15.2 Notices.
Any notice or communication to the Company or the Trustee is duly
given if in writing (which may be by facsimile with the original to follow) and
delivered in person or mailed by first-class mail to the address set forth
below:
(a) if to the Company:
Xxxxxx Xxxxxxx Ltd.
Xxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000-0000
with a copy to:
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn.: Xxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
(b) if to the Trustee:
BNY Midwest Trust Company
Corporate Trust Division
0 Xxxxx Xx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Administration
93
The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication to a Holder shall be mailed by first-class
mail to his address shown on the Register kept by the Registrar. Failure to mail
a notice or communication to a Holder or any defect in such notice or
communication shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed or sent in the manner provided
above within the time prescribed, it is duly given as of the date it is mailed,
whether or not the addressee receives it, except that notice to the Trustee
shall be effective only upon receipt thereof by the Trustee.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee at the same time.
Section 15.3 Communication by Holders with Other Holders.
Holders may communicate pursuant to Section 312(b) of the TIA with
other Holders with respect to their rights under the Securities or this
Indenture. The Company, the Trustee, the Registrar and anyone else shall have
the protection of Section 312(c) of the TIA.
Section 15.4 Acts of Holders of Securities.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities may be embodied in and evidenced by:
(1) one or more instruments of substantially similar tenor signed
by such Holders in person or by agent or proxy duly appointed in
writing;
(2) the record of Holders of Securities voting in favor thereof,
either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities duly called and held in accordance
with the provisions of Article 8; or
(3) a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
of Securities signing such instrument or instruments and so voting at such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent or proxy, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and
94
(subject to Section 5.1) conclusive in favor of the Trustee and the Company if
made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 8.6.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be provided in any manner which the Trustee reasonably
deems sufficient.
(c) The principal amount and serial numbers of Securities held by any
Person, and the date of such Person holding the same, shall be proved by the
Register.
(d) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of the Holders of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
Section 15.5 Certificate and Opinion as to Conditions Precedent.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
Opinion of Counsel with respect to the matters upon which such certificate or
opinion is based is erroneous. Any such Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or representations by an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
Counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is
95
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Section 15.6 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion on behalf of the Company has read such covenant or condition
and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, 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, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 15.7 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 15.8 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its respective successors and assigns, whether so expressed or not.
Section 15.9 Separability Clause.
In case any provision in this Indenture or the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 15.10 Benefits of Indenture.
Nothing contained in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders of Securities, any benefit or legal or
equitable right, remedy or claim under this Indenture.
96
Section 15.11 Section Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 15.12 Submission to Jurisdiction; Consent to Service; Waivers.
Each of the Company and Guarantor agrees that any legal suit, action
or proceeding against it arising out of or based upon this Agreement, may be
instituted in any United States or New York State court in the Borough of
Manhattan, The City of New York, New York, and waives any objection which it may
now or hereafter have to the laying of venue of any such proceeding, and submits
to the non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. Each of the Company and Guarantor hereby agrees to accept service of
process at the address set forth in Section 15.2 upon which process may be
served in any such action arising out of or based on this Agreement which may be
instituted in any United States or New York State court in the Borough of
Manhattan, the City of New York, New York, and expressly consents to the
jurisdiction of any such court, but only in respect of any such action, and
waives any other requirements of or objections to personal jurisdiction with
respect thereto.
Section 15.13 Counterparts.
This instrument may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original but all such
counterparts shall together constitute but one and the same instrument.
Section 15.14 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Repurchase Date or Stated Maturity of any Security or the last day on which a
Holder of a Security has a right to convert such Security shall not be a
Business Day at any Place of Payment or Place of Conversion, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest (including Additional Amounts, if any) or principal or
premium, if any, or conversion of the Securities, need not be made at such Place
of Payment or Place of Conversion on such day, but may be made on the next
succeeding Business Day at such Place of Payment or Place of Conversion with the
same force and effect as if made on the Interest Payment Date, Redemption Date,
Repurchase Date or at the Stated Maturity or on such last day for conversion;
provided, however, that in the case that payment is made on such succeeding
Business Day, no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, Repurchase Date or
Stated Maturity, as the case may be.
Section 15.15 Recourse Against Others.
No recourse for the payment of the principal of or premium, if any, or
interest (including Additional Amounts, if any) on any Securities or for any
claim based thereon or otherwise in respect thereof, shall be had against any
incorporator, shareholder, officer or director or manager, as such, past,
present or future, of the Company or of any successor entity to the Company,
whether by virtue of any constitution, statute or rule of law or by the
97
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance thereof and as part of the consideration for the issue
thereof, expressly waived and released.
98
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above written.
XXXXXX XXXXXXX LTD.
By: /s/ Xxxx Xxxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxx Xxxxxxx
Title: Vice President and Secretary
XXXXXX XXXXXXX LLC
By: /s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
BNY MIDWEST TRUST COMPANY
By: /s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
Title: Assistant Vice President
EXHIBIT A
FORM OF SECURITY
[FACE OF SECURITY]
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE REFERRED
TO HEREIN. BENEFICIAL INTERESTS IN THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT IN ACCORDANCE WITH THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, TO XXXXXX XXXXXXX LTD.
(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 IN AS MUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]1/
[THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER (1) (A) REPRESENTS THAT IT
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT OR (B) REPRESENTS THAT IT IS NOT A U.S. PERSON AND IS OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS
OF) PARAGRAPH (K)(2) OF RULE 902 OF REGULATION S UNDER THE SECURITIES ACT; (2)
AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE
COMMON SHARES ISSUABLE UPON CONVERSION OF SUCH SECURITY EXCEPT (A) TO XXXXXX
XXXXXXX LTD. OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER
IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED
(OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(D)
A-1
ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF SUCH SECURITY (OTHER THAN A TRANSFER PURSUANT TO CLAUSE
2(D) ABOVE), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE
HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO
THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFER
IS PURSUANT TO CLAUSE 2(C) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE) SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS XXXXXX XXXXXXX LTD. MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER
OF THE TRANSFER OF THE SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE 2(D) ABOVE
OR THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE SECURITY
EVIDENCED HEREBY. AS USED HEREIN, THE TERMS "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE SECURITY
EVIDENCED HEREBY PURSUANT TO CLAUSE (2)(E) ABOVE OR THE EXPIRATION OF TWO YEARS
FROM THE ORIGINAL ISSUANCE OF THE SECURITY EVIDENCED HEREBY. AS USED HEREIN, THE
TERMS "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.] 2/
A-2
XXXXXX XXXXXXX LTD.
6.50% Convertible Subordinated Notes due 2007
(the "Notes")
No. A-1
Original principal balance of all Note Initial principal balance of
(including this Note): $200,000,000 this Note: $200,000,000
CUSIP:
XXXXXX XXXXXXX LTD., a Bermuda Company (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to [ ] 3/ or its registered assigns,
the principal sum of TWO HUNDRED MILLION U.S. Dollars ($200,000,000) on June 1,
2007.
Interest Payment Dates: June 1 and December 1, commencing December 1,
2001
Regular Record Dates: May 15 and November 15
Reference is hereby made to the further provisions of this Security
set forth on the attached "Terms of Notes", which further provisions shall for
all purposes have the same effect as if set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Security to be duly
executed manually or by facsimile by its duly authorized officers.
Dated: May 31, 2001
XXXXXX XXXXXXX LTD.
By:
-----------------------------------
Name:
Title:
Trustee's Certificate of Authentication
This is one of the 6.50% Convertible
Subordinated Notes due 2007 described in
the within-named Indenture.
BNY MIDWEST TRUST COMPANY,
not in its individual capacity but solely as Trustee
By:
---------------------------------------
Authorized Signatory
Dated: May 31, 2001
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Terms of Notes
XXXXXX XXXXXXX LTD.
6.50% Convertible Subordinated Notes due 2007
Capitalized terms used herein but not defined shall have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
1. Principal and Interest.
Xxxxxx Xxxxxxx Ltd., a Bermuda company (the "Company"), promises to
pay interest on the principal amount of this Security at the Interest Rate from
May 31, 2001 until repayment at Maturity, redemption or repurchase. The Company
will pay interest on this Security semiannually in arrears on June 1 and
December 1 of each year (each an "Interest Payment Date"), commencing December
1, 2001.
Interest on the Securities shall be computed (i) for any full
semiannual period for which a particular Interest Rate is applicable on the
basis of a 360-day year of twelve 30-day months and (ii) for any period for
which a particular Interest Rate is applicable shorter than a full semiannual
period for which interest is calculated, on the basis of a 30-day month and, for
such periods of less than a month, the actual number of days elapsed over a
30-day month.
A Holder of any Security at the close of business on a Regular Record
Date shall be entitled to receive interest on such Security on the corresponding
Interest Payment Date. A Holder of any Security which is converted after the
close of business on a Regular Record Date and prior to the corresponding
Interest Payment Date (other than any Security whose Maturity is prior to such
Interest Payment Date) shall be entitled to receive interest on the principal
amount of such Security, notwithstanding the conversion of such Security prior
to such Interest Payment Date. However, any such Holder which surrenders any
such Security for conversion during the period between the close of business on
such Regular Record Date and ending with the opening of business on the
corresponding Interest Payment Date shall be required to pay the Company an
amount equal to the interest, including Additional Amounts, if any, on the
principal amount of such Security so converted, which is payable by the Company
to such Holder on such Interest Payment Date, at the time such Holder surrenders
such Security for conversion. Notwithstanding the foregoing, any such Holder
which surrenders for conversion any Security which has been called for
redemption by the Company in a notice of redemption given by the Company
pursuant to Section 10.4 of the Indenture shall be entitled to receive (and
retain) such interest, including Additional Amounts, if any, and need not pay
the Company an amount equal to the interest, including Additional Amounts, if
any, on the principal amount of such Security so converted at the time such
Holder surrenders such Security for conversion.
In accordance with the terms of the Registration Rights Agreement,
dated as of May 31, 2001 (the "Registration Rights Agreement"), among the
Company, the Guarantor and Xxxxxx Brothers Inc., Banc of America Securities LLC,
and First Union Securities, Inc., during the first 60 days following a
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Registration Default (as defined in the Registration Rights Agreement), the
Interest Rate borne by the Securities shall be increased by 0.25% on:
(A) August 30, 2001, if the Shelf Registration Statement (as
defined in the Registration Rights Agreement) is not filed prior to or
on August 29, 2001;
(B) November 29, 2001 if the Shelf Registration Statement is not
declared effective by the Securities and Exchange Commission prior to
or on November 28, 2001;
(C) Except during any period that the prospectus contained in the
Shelf Registration Statement has been suspended, the day after the
fifth Business Day after the Shelf Registration Statement, previously
declared effective, ceases to be effective or fails to be usable, if a
post-effective amendment (or report filed pursuant to the Exchange
Act) that cures the Shelf Registration Statement is not filed with the
Securities and Exchange Commission during such five Business Day
period; or
(D) the day following the 45th or 60th day, as the case may be,
of any period that the prospectus contained in the Shelf Registration
Statement has been suspended, if such suspension has not been
terminated.
From and after the 61st day following such Registration Default, the Interest
Rate borne by the Securities shall be increased by 0.50%. In no event shall the
Interest Rate borne by the Securities be increased by more than 0.50%.
Any amount of additional interest will be payable in cash
semiannually, in arrears, on each Interest Payment Date and will cease to accrue
on the date the Registration Default is cured. The Holder of this Security is
entitled to the benefits of the Registration Rights Agreement.
2. Guarantee
This Note is entitled to that certain subordinated Guarantee made for
the benefit of the Holders. Reference is hereby made to Article Thirteen of the
Indenture for the terms relating to the Guarantee.
3. Subordination
The Indebtedness evidenced by the Notes is, to the extent and manner
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full in cash of all existing and future Senior Debt. 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 behalf of such
Holder, to take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and (c) appoints the Trustee
attorney-in-fact of such Holder for such purpose; provided that the Indebtedness
evidenced by this Note shall cease to be so subordinate and subject in right of
payment upon any defeasance of this Note referred to in Paragraph 7 below.
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4. Method of Payment.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Principal of, and premium, if any, and interest (including Additional
Amounts, if any) on, Global Securities will be payable to the Depositary in
immediately available funds.
Principal and premium, if any, on Physical Securities will be payable
at the office or agency of the Company maintained for such purpose, initially
the Corporate Trust Office of the Trustee. Interest (including Additional
Amounts, if any) on Physical Securities will be payable by (i) U.S. Dollar check
drawn on a bank in The City of New York mailed to the address of the Person
entitled thereto as such address shall appear in the Register, or (ii) upon
application to the Registrar not later than the relevant Record Date by a Holder
of an aggregate principal amount in excess of $5,000,000, wire transfer in
immediately available funds, which application shall remain in effect until the
Holder notifies, in writing, the Registrar to the contrary.
5. Paying Agent and Registrar.
Initially, BNY Midwest Trust Company, the Trustee under the Indenture,
will act as Paying Agent and Registrar. The Company may change the Paying Agent
or Registrar without notice to any Holder.
6. Indenture.
The Company issued this Security under an Indenture, dated as of May
29, 2001 (the "Indenture"), among the Company and BNY Midwest Trust Company, as
trustee (the "Trustee"). The terms of the Security include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended ("TIA"). This Security is subject to all such
terms, and Holders are referred to the Indenture and the TIA for a statement of
all such terms. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this Security and the terms of the Indenture,
the terms of the Indenture shall control.
7. Defeasance.
The Indenture contains provisions (which provisions apply to this
Note) for defeasance at any time of (a) the entire Indebtedness of the Company
on this Note and (b) certain restrictive covenants and related Defaults and
Events of Default, in each case upon compliance by the Company with certain
conditions set forth therein.
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8. Optional Redemption.
At any time on or after June 1, 2004, the Company may, at its option
and so long as the Trading Price of the Common Shares (multiplied by 100) equals
or exceeds 120% of the then prevailing Conversion Price for at least 20 Trading
Days in any consecutive 30-day trading period, including the last Trading Day of
such 30-day period, ending on the Trading Day prior to the issuance of the
Notice of Redemption announcing such redemption referred to in Section 10.4 of
the Indenture, redeem the Securities in whole at any time or in part from time
to time, on any date prior to maturity, upon notice as set forth in Section
10.4, at the Redemption Price (expressed as percentages of the principal amount)
set forth below if redeemed on a Redemption Date occurring during the 12-month
period beginning June 1 of the years indicated and ending May 31 of the
following year.
During the Twelve Months Commencing Redemption Price
----------------------------------- ----------------
June 1, 2004 103.90%
June 1, 2005 102.60%
June 1, 2006 101.30%
9. General.
Securities in original denominations larger than $1,000 may be
redeemed in part. If any Security selected for partial redemption is converted
or repurchased in part before termination of the conversion or repurchase right
with respect to the portion of the Security so selected, the converted or
repurchased portion of such Security shall be deemed to be the portion selected
for redemption (provided, however, that the Holder of such Security so converted
or repurchased and deemed redeemed shall not be entitled to any additional
interest payment as a result of such deemed redemption than such Holder would
have otherwise been entitled to receive upon conversion of such Security).
Securities which have been converted or repurchased during a selection of
Securities to be redeemed may be treated by the Trustee as Outstanding for the
purpose of such selection.
On and after the Redemption Date, interest shall cease to accrue on
Securities or portions of Securities called for redemption, unless the Company
defaults in the payment of the Redemption Price.
Notice of redemption will be given by the Company to the Holders as
provided in the Indenture.
10. Repurchase Right Upon a Change of Control.
If a Change of Control occurs, the Holder of Securities, at the
Holder's option, shall have the right, in accordance with the provisions of the
Indenture, to require the Company to repurchase the Securities (or any portion
of the principal amount hereof that is at least an integral multiple of $1,000,
provided that the portion of the principal amount of this Security to be
Outstanding after such repurchase is at least equal to $1,000) at 100% of the
principal amount of the Securities, plus any interest accrued and unpaid to the
Repurchase Date.
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No fractional shares of Company Common Shares will be issued upon
repurchase of any Securities. Instead of any fractional share which would
otherwise be issued upon conversion of such Securities, the Company shall pay a
cash adjustment as provided in the Indenture.
A Company Notice will be given by the Company to the Holders as
provided in the Indenture. To exercise a repurchase Right, a Holder must deliver
to the Trustee a written notice as provided in the Indenture.
11. Conversion Rights.
Subject to and upon compliance with the provisions of the Indenture,
the Holder of Securities is entitled, at such Holder's option, at any time
before the close of business on the Business Day immediately preceding June 1,
2007 to convert the Holder's Securities (or any portion of the principal amount
hereof which is an integral multiple of $1,000), at the principal amount thereof
or of such portion, into duly authorized, fully paid and nonassessable shares of
Common Shares of the Company at the Conversion Price in effect at the time of
conversion.
In the case of a Security (or a portion thereof) called for
redemption, such conversion right in respect of the Security (or such portion
thereof) so called, shall expire at the close of business on the second Business
Day preceding the Redemption Date, unless the Company defaults in making the
payment due upon redemption. In the case of a Change of Control for which the
Holder exercises its Repurchase Right with respect to a Security (or a portion
thereof), such conversion right in respect of the Security (or portion thereof)
shall expire at the close of business on the Business Day preceding the
Repurchase Date.
The Conversion Price shall be initially equal to $16.05 per share of
Common Shares. The Conversion Price shall be adjusted under certain
circumstances as provided in the Indenture.
To exercise the conversion right, the Holder must surrender the
Security (or portion thereof) duly endorsed or assigned to the Company or in
blank, at the office of the Conversion Agent, accompanied by a duly signed
conversion notice to the Company. Any Security surrendered for conversion during
the period from the close of business on any Regular Record Date to the opening
of business on the corresponding Interest Payment Date (other than any Security
whose Maturity is prior to such Interest Payment Date), shall also be
accompanied by payment in New York Clearing House funds 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 the Securities being
surrendered for conversion.
No fractional shares of Common Shares will be issued upon conversion
of any Securities. Instead of any fractional shares which would otherwise be
issued upon conversion of such Securities, the Company shall pay a cash
adjustment as provided in the Indenture.
12. Denominations; Transfer; Exchange.
The Securities are issuable in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000 in excess thereof. A
Holder may register the transfer or exchange of Securities in accordance with
the Indenture. The Registrar may require a Holder,
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among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture.
In the event of a redemption in part, the Company will not be required
(a) to register the transfer of, or exchange, Securities for a period of 15 days
immediately preceding the date notice is given identifying the serial numbers of
the Securities called for such redemption, or (b) to register the transfer of,
or exchange, any such Securities, or portion thereof, called for redemption.
In the event of redemption, conversion or repurchase of the Securities
in part only, a new Security or Securities for the unredeemed, unconverted or
unrepurchased portion thereof will be issued in the name of the Holder hereof.
13. Persons Deemed Owners.
The registered Holder of this Security shall be treated as its owner
for all purposes.
14. Unclaimed Money.
The Trustee and the Paying Agent shall pay to the Company any money
held by them for the payment of principal, premium, if any, or interest that
remains unclaimed for 18 months after the date upon which such payment shall
have become due. After payment to the Company, Holders entitled to the money
must look to the Company for payment as general creditors unless an applicable
abandoned property law designates another Person, and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
15. Discharge Prior to Redemption or Maturity.
Subject to certain conditions contained in the Indenture, the Company
may discharge its obligations under the Securities and the Indenture if (1) (a)
all of the Outstanding Securities shall become due and payable at their
scheduled Maturity within one year or (b) all of the Outstanding Securities are
scheduled for redemption within one year, and (2) the Company shall have
deposited with the Trustee money and/or U.S. Government Obligations sufficient
to pay the principal of, and premium, if any, and interest on, all of the
Outstanding Securities on the date of Maturity or redemption, as the case may
be.
16. Amendment; Supplement; Waiver.
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 Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Outstanding Securities (or such
lesser amount as shall have acted at a meeting pursuant to the provisions of the
Indenture). The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, 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
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Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security or such other
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any, and
interest (including Additional Amounts, if any) on this Security at the times,
places and rate, and in the coin or currency, herein prescribed or to convert
this Security (or pay cash in lieu of conversion) as provided in the Indenture.
17. Defaults and Remedies.
The Indenture contains provisions (which provisions apply to this
Note) for defeasance at any time of (a) the entire Indebtedness of the Company
on this Note and (b) certain restrictive covenants and related Defaults and
Events of Default, in each case upon compliance by the Company with certain
conditions set forth therein.
18. Authentication.
This Security shall not be valid until the Trustee (or authenticating
agent) executes the certificate of authentication on the other side of this
Security.
19. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
20. Additional Rights of Holders of Transfer Restricted Securities.
In addition to the rights provided to Holders under the Indenture,
Holders of Transfer Restricted Securities shall have all the rights set forth in
the Registration Rights Agreement.
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on this Security and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on this Security or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
22. Governing Law.
The Indenture and this Security shall be governed by, and construed in
accordance with, the law of the State of New York.
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23. Successor Corporation.
In the event a successor corporation assumes all the obligations of
the Company under this Security, pursuant to the terms hereof and of the
Indenture, the Company will be released from all such obligations.
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[FORM OF GUARANTEE]
SUBORDINATED GUARANTEE
For value received, the undersigned hereby unconditionally guarantees
to the Holder of this Note the payments of principal of, premium, if any, and
interest on this Note in the amounts and at the time when due and interest on
the overdue principal, premium, if any, and interest, if any, of this Note, if
lawful, and the payment or performance of all other obligations of the Company
under the Indenture or the Notes, to the Holder of this Note and the Trustee,
all in accordance with and subject to the terms and limitations of this Note,
Article Thirteen of the Indenture and this Guarantee. This Guarantee will become
effective in accordance with Article Thirteen of the Indenture and its terms
shall be evidenced therein. The validity and enforceability the Guarantee shall
not be affected by the fact that it is not affixed to any particular Note.
The obligations of the undersigned to the Holders of Notes and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article Thirteen of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates. The Indebtedness evidenced by this
Guarantee 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 Guarantor Senior Debt as defined in the Indenture, and this Guarantee is
issued subject to such provisions. Each Holder of a Note, by accepting the same,
(a) agrees to and shall be bound by such provisions, (b) authorizes and directs
the Trustee, on behalf of such Holder, to take such action as may be necessary
or appropriate to effectuate the subordination as provided in the Indenture and
(c) appoints the Trustee attorney-in-fact of such Holder for such purpose;
provided that such subordination provisions shall cease to affect amounts
deposited in accordance with the defeasance provisions of the Indenture upon the
terms and conditions set forth therein.
XXXXXX XXXXXXX LLC
By:
-----------------------------------------
Name:
Title:
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ASSIGNMENT FORM
To assign this Security, fill in the form below and have your
signature guaranteed: (I) or (we) assign and transfer this Security to:
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint -------------------------------------------------------
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Dated: Your Name:
--------------------------- -------------------------
(Print your name exactly as it
appears on the face of this
Security)
Your Signature:
--------------------
(Sign exactly as your name appears
on the face of this Security)
Signature Guarantee*:
---------------
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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In connection with any transfer of this Security occurring prior to the date
which is the earlier of the end of the period referred to in Rule 144(k) under
the Securities Act of 1933, as amended (the "Securities Act"), the undersigned
confirms that without utilizing any general solicitation or general advertising
that:
[Check One]
[ ] (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act provided by Rule 144A
thereunder, and that the transfer has been effected pursuant to and in
accordance with Rule 144A under the Securities Act and, accordingly,
the undersigned does hereby further certify that the Securities are
being transferred to a transferee that the undersigned reasonably
believes is purchasing the Securities for its own account, or for one
or more accounts with respect to which such transferee exercises sole
investment discretion, and such transferee and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in
each case in a transaction meeting the requirements of Rule 144A and
in accordance with any applicable securities laws of any state of the
United States.
or
[ ] (b) this Security is being transferred in compliance with the exemption
from registration under the Securities Act provided by Regulation S
thereunder, and (A) the offer of the Securities was not made to a
person in the United States; (B) either: (i) at the time the buy order
was originated, the transferee was outside the United States or the
Transferor and any person acting on its behalf reasonably believed
that the transferee was outside the United States, or (ii) the
transaction was executed in, on or through the facilities of a
designated offshore securities market and neither the Transferor nor
any person acting on its behalf knows that the transaction was
pre-arranged with a buyer in the United States; (C) no directed
selling efforts have been made in contravention of the requirements of
Rule 903(b) or 904(b) of Regulation S, as applicable; and (D) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.
or
[ ] (c) this Security is being transferred other than in accordance with (a)
or (b) above and documents are being furnished which comply with the
conditions of transfer set forth in this Security and the Indenture.
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If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Security in the name of any Person other than
the Holder hereof unless the conditions to any such transfer of registration set
forth herein and in Sections 2.7, 2.8 and 2.9 of the Indenture shall have been
satisfied.
Dated:
------------------------------ ------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
the within-mentioned instrument in
every particular, without
alteration or any change
whatsoever.
Signature Guarantee:
-----------------------------------
Signature must be guaranteed by a
participant in a recognized
signature guaranty medallion
program or other signature
guarantor acceptable to the
Trustee.
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TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that: (a) it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion, in each case for investment and not with a
view to distribution; (b) it and any such account is a "Qualified Institutional
Buyer" within the meaning of Rule 144A under the Securities Act of 1933; (c) it
is aware that the sale to it is being made in reliance on Rule 144A; (d) it
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information; and (e) it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
---------------------------- ------------------------------------
NOTICE: To be executed by an
executive officer
TO BE COMPLETED BY PURCHASER IF (b) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing the
Securities for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account are not "U.S.
persons" as defined in Regulation S under the Securities Act.
Dated:
---------------------------- ------------------------------------
NOTICE: To be executed by an
executive officer
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CONVERSION NOTICE
TO: XXXXXX XXXXXXX LTD.
Xxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000-0000
The undersigned registered owner of this Security hereby irrevocably
exercises the option to convert this Security, or the portion hereof (the
principal amount of which is an integral multiple of $1,000) below designated,
into Common Shares of the Company in accordance with the terms of the Indenture
referred to in this Security, and directs that the Common Shares of the Company
issuable and deliverable upon such conversion, together with any check in
payment for fractional shares of Common Shares of the Company and any Securities
representing any unconverted principal amount hereof, be issued and delivered to
the registered holder hereof unless a different name has been indicated below.
The undersigned agrees to pay all transfer taxes payable in respect of the
conversion. Any amount required to be paid to the undersigned on account of
interest (including Additional Amounts, if any) accompanies this Security.
Dated: Your Name:
---------------------- -----------------------------------
(Print your name exactly as it appears on the
face of this Security)
Your Signature:
------------------------------
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee*:
------------------------
Social Security or other Taxpayer
Identification Number:
-----------------------
Principal amount to be converted (if less than all): $
______________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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Fill in for registration of Common Shares of the Company (if to be issued) and
Securities (if to be delivered) other than to and in the name of the registered
holder:
-------------------------------------------------------------
(Name)
-------------------------------------------------------------
(Street Address)
-------------------------------------------------------------
(City, State and Zip Code)
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NOTICE OF EXERCISE OF REPURCHASE RIGHT
TO: XXXXXX XXXXXXX LTD.
Xxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000-0000
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from Xxxxxx Xxxxxxx Ltd. (the "Company") as to
the occurrence of a Change of Control with respect to the Company and requests
and instructs the Company to repay the entire principal amount of this Security,
or the portion thereof (the principal amount of which is an integral multiple of
$1,000) below designated, in accordance with the terms of the Indenture referred
to in this Security, together with interest (including Additional Amounts, if
any) accrued and unpaid to, but excluding, such date, to the registered holder
hereof, in cash.
Dated: Your Name:
---------------------- -----------------------------------
(Print your name exactly as it appears on the
face of this Security)
Your Signature:
------------------------------
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee*:
------------------------
Social Security or other Taxpayer
Identification Number:
-----------------------
Principal amount to be converted (if less than all): $
____________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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SCHEDULE OF EXCHANGES FOR PHYSICAL SECURITIES1
The following exchanges of a part of this Global Security for Physical
Securities have been made:
Principal Amount
of this Global
Amount of decrease in Amount of increase in Security following Signature of
Principal Amount of Principal Amount of such decrease Authorized officer
Date of Exchange this Global Security this Global Security (or increase) of Trustee
---------------- -------------------- -------------------- ---------------- ------------------
____________________
1 This schedule should be included only if the Security is issued in
global form.
X-00
0/ Xxxxxx if the Security is a Global Security.
2/ Insert if the Security is a Restricted Security.
3/ Insert "Cede & Co." if the Security is a Global Security.
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