EXHIBIT 4.17.1
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CALPINE CORPORATION
4.75% CONTINGENT CONVERTIBLE NOTES DUE 2023
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AMENDED AND RESTATED
INDENTURE
Dated as of March 12, 2004
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WILMINGTON TRUST COMPANY
Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)................................................ 7.10
(a)(2)................................................ 7.10
(a)(3)................................................ N.A.
(a)(4)................................................ N.A.
(a)(5)................................................ 7.10
(b)................................................... 7.10
(c)................................................... N.A.
311(a) 7.11
(b)................................................... 7.11
(c)................................................... N.A.
312(a) 2.05
(b)................................................... 12.03
(c)................................................... 12.03
313(a) 7.06
(b)(1)................................................ 10.03
(b)(2)................................................ 7.06; 7.07
(c)................................................... 7.06;12.03
(d)................................................... 7.06
314(a) 4.03
(a)(4)................................................ 12.05
(b)................................................... N.A.
(c)(3)................................................ N.A.
(e)................................................... 12.05
(f)................................................... N.A.
315(a) 7.01
(b)................................................... 7.05
(c)................................................... 7.01
(d)................................................... 7.01
(e)................................................... 6.11
316(a) (last sentence)................................... 2.09
(a)(1)(A)............................................. 6.05
(a)(1)(B)............................................. 6.04
(a)(2)................................................ N.A.
(b)................................................... 6.07
(c)................................................... 2.12
317(a)(1)................................................ 6.08
(a)(2)................................................ 6.09
(b)................................................... 2.04
318(a) N.A.
(b)................................................... 12.03
(c)................................................... 12.01; 12.02; 12.03
N.A. means not applicable.
* This Cross Reference Table is not part of this Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.......................................................................................... 1
Section 1.02 Other Definitions.................................................................................... 11
Section 1.03 Incorporation by Reference of Trust Indenture Act.................................................... 12
Section 1.04 Rules of Construction................................................................................ 12
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating...................................................................................... 12
Section 2.02 Execution and Authentication......................................................................... 13
Section 2.03 Registrar, Paying Agent and Conversion Agent......................................................... 13
Section 2.04 Paying Agent to Hold Money in Trust.................................................................. 14
Section 2.05 Holder Lists......................................................................................... 14
Section 2.06 Transfer and Exchange................................................................................ 14
Section 2.07 Replacement Notes.................................................................................... 20
Section 2.08 Outstanding Notes.................................................................................... 20
Section 2.09 Treasury Notes....................................................................................... 21
Section 2.10 Temporary Notes...................................................................................... 21
Section 2.11 Cancellation......................................................................................... 21
Section 2.12 Defaulted Interest................................................................................... 21
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee................................................................................... 22
Section 3.02 Selection of Notes to Be Redeemed or Purchased....................................................... 22
Section 3.03 Notice of Optional Redemption........................................................................ 22
Section 3.04 Effect of Notice of Optional Redemption.............................................................. 23
Section 3.05 Deposit of Redemption or Purchase Price.............................................................. 23
Section 3.06 Notes Redeemed or Purchased in Part.................................................................. 24
Section 3.07 Optional Redemption.................................................................................. 24
Section 3.08 Mandatory Redemption................................................................................. 24
Section 3.09 Purchase of Notes at Option of the Holder............................................................ 24
Section 3.10 Purchase of Notes at Option of the Holder upon Change in Control..................................... 29
Section 3.11 Effect of Purchase Notice or Change in Control Purchase Notice....................................... 34
Section 3.12 Deposit of Purchase Price or Change in Control Purchase Price........................................ 35
Section 3.13 Notes Purchased in Part.............................................................................. 35
Section 3.14 Covenant to Comply With Securities Laws Upon Purchase of Notes....................................... 35
Section 3.15 Repayment to the Company............................................................................. 36
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes..................................................................................... 36
Section 4.02 Maintenance of Office or Agency...................................................................... 36
Section 4.03 Reports.............................................................................................. 37
Section 4.04 Compliance Certificate............................................................................... 37
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Section 4.05 Taxes................................................................................................ 38
Section 4.06 Stay, Extension and Usury Laws....................................................................... 38
Section 4.07 [Reserved.].......................................................................................... 38
Section 4.08 [Reserved.].......................................................................................... 38
Section 4.09 [Reserved.].......................................................................................... 38
Section 4.10 [Reserved.].......................................................................................... 38
Section 4.11 [Reserved.].......................................................................................... 38
Section 4.12 Liens................................................................................................ 39
Section 4.13 [Reserved.].......................................................................................... 40
Section 4.14 Corporate Existence.................................................................................. 40
Section 4.15 [Reserved.].......................................................................................... 41
Section 4.16 Limitation on Sale and Leaseback Transactions........................................................ 41
Section 4.17 [Reserved.].......................................................................................... 41
Section 4.18 [Reserved.].......................................................................................... 41
Section 4.19 [Reserved.].......................................................................................... 41
Section 4.20 [Reserved.].......................................................................................... 42
Section 4.21 Issuance of Additional Notes......................................................................... 42
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets............................................................. 42
Section 5.02 Successor Corporation Substituted.................................................................... 42
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.................................................................................... 43
Section 6.02 Acceleration......................................................................................... 44
Section 6.03 Other Remedies....................................................................................... 45
Section 6.04 Waiver of Past Defaults.............................................................................. 45
Section 6.05 Control by Majority.................................................................................. 45
Section 6.06 Limitation on Suits.................................................................................. 45
Section 6.07 Rights of Holders of Notes to Receive Payment........................................................ 46
Section 6.08 Collection Suit by Trustee........................................................................... 46
Section 6.09 Trustee May File Proofs of Claim..................................................................... 46
Section 6.10 Priorities........................................................................................... 47
Section 6.11 Undertaking for Costs................................................................................ 47
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.................................................................................... 47
Section 7.02 Rights of Trustee.................................................................................... 48
Section 7.03 Individual Rights of Trustee......................................................................... 49
Section 7.04 Trustee's Disclaimer................................................................................. 49
Section 7.05 Notice of Defaults................................................................................... 49
Section 7.06 Reports by Trustee to Holders of the Notes........................................................... 49
Section 7.07 Compensation and Indemnity........................................................................... 50
Section 7.08 Replacement of Trustee............................................................................... 50
Section 7.09 Successor Trustee by Merger, etc..................................................................... 51
Section 7.10 Eligibility; Disqualification........................................................................ 51
Section 7.11 Preferential Collection of Claims Against Company.................................................... 52
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ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance............................................. 52
Section 8.02 Legal Defeasance and Discharge....................................................................... 52
Section 8.03 Covenant Defeasance.................................................................................. 52
Section 8.04 Conditions to Legal or Covenant Defeasance........................................................... 53
Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions........ 54
Section 8.06 Repayment to the Company............................................................................. 54
Section 8.07 Reinstatement........................................................................................ 55
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.................................................................. 55
Section 9.02 With Consent of Holders of Notes..................................................................... 56
Section 9.03 Compliance with Trust Indenture Act.................................................................. 57
Section 9.04 Revocation and Effect of Consents.................................................................... 57
Section 9.05 Notation on or Exchange of Notes..................................................................... 57
Section 9.06 Trustee to Sign Amendments, etc...................................................................... 57
ARTICLE 10.
CONVERSION
Section 10.01 Conversion Privilege................................................................................. 58
Section 10.02 Conversion Procedure................................................................................. 60
Section 10.03 Taxes on Conversion.................................................................................. 61
Section 10.04 Company to Provide Stock............................................................................. 61
Section 10.05 Adjustment of Conversion Price....................................................................... 61
Section 10.06 When No Adjustment Required.......................................................................... 64
Section 10.07 When Adjustment May Be Deferred...................................................................... 65
Section 10.08 Successive Adjustments............................................................................... 65
Section 10.09 Notice of Adjustment................................................................................. 65
Section 10.10 Notice of Certain Transactions....................................................................... 65
Section 10.11 Effect of Reclassification, Consolidation, Merger, Share Exchange or Sale on Conversion Privilege.... 65
Section 10.12 Trustee's Disclaimer................................................................................. 66
Section 10.13 Voluntary Reduction.................................................................................. 67
Section 10.14 Conversion Value of Notes Tendered................................................................... 67
ARTICLE 11.
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge........................................................................... 68
Section 11.02 Application of Trust Money........................................................................... 69
ARTICLE 12.
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls......................................................................... 69
Section 12.02 Notices.............................................................................................. 70
Section 12.03 Communication by Holders of Notes with Other Holders of Notes........................................ 71
Section 12.04 Certificate and Opinion as to Conditions Precedent................................................... 71
Section 12.05 Statements Required in Certificate or Opinion........................................................ 71
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Section 12.06 Rules by Trustee and Agents.......................................................................... 71
Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders............................. 71
Section 12.08 Governing Law........................................................................................ 72
Section 12.09 No Adverse Interpretation of Other Agreements........................................................ 72
Section 12.10 Successors........................................................................................... 72
Section 12.11 Severability......................................................................................... 72
Section 12.12 Counterpart Originals................................................................................ 72
Section 12.13 Table of Contents, Headings, etc..................................................................... 72
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
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AMENDED AND RESTATED INDENTURE (as so amended and restated, the
"Indenture") dated as of March 1, 2004 between Calpine Corporation (the
"Company"), a Delaware corporation, and Wilmington Trust Company (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Company and the Trustee entered into an Indenture, dated
as of November 14, 2003 (the "Original Indenture"), governing the 4.75%
Contingent Convertible Notes due 2023 (the "Notes") for the benefit of each
other and for the equal and ratable benefit of the Holders (as defined) of the
Notes;
WHEREAS, pursuant to Section 9.01 of the Original Indenture, the
Company has requested that the Trustee amend and restate the Original Indenture
in its entirety, without the consent of the Holders, to cure certain
ambiguities, omissions, defects and inconsistencies;
WHEREAS, the Trustee, upon satisfaction of the conditions set forth in
Sections 9.01 and 9.06 of the Indenture (including, without limitation, the
receipt of an Officer's Certificate and an Opinion of Counsel), is willing to
amend and restate the Original Indenture as hereinafter set forth; and
WHEREAS, (i) the Original Indenture is being amended and restated
pursuant to this Indenture; (ii) the Notes under the Original Indenture, as
amended and restated in connection with this Indenture, will be continued under
this Indenture and (iii) all obligations of the Company under the Notes and the
Original Indenture will be continued, amended and restated as provided herein
and will not be cancelled or discharged;
NOW THEREFORE, the Company and the Trustee agree, for the benefit of
each other and for the equal and ratable benefit of the Holders of the Notes,
that the Original Indenture be, and it hereby is, amended and restated in its
entirety as follows:
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that shall be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"Additional Notes" means Notes (other than the Initial Notes) issued
under the Original Indenture in accordance with Sections 2.02 and 4.21 hereof,
as part of the same series as the Initial Notes.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings.
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"Agent" means any Registrar, co-registrar, Paying Agent, additional
paying agent, Conversion Agent or additional conversion agent.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Note or beneficial interests therein, the rules
and procedures of the Depositary, for such Global Note, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, as of the date of determination, the present value (discounted at the
rate of interest set forth or implicit in terms of the lease (or, if not
practicable to determine that rate, the rate of interest borne by the Notes),
compounded annually) of the total obligations of the lessee for rental payments
during the remaining term of the lease included in such Sale and Leaseback
Transaction (including any period for which such lease has been extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Bid Solicitation Agent" means The Bank of New York until the Company
selects another bank, trust company or similar fiduciary agent, if any, to serve
as Bid Solicitation Agent.
"Board of Directors" means:
(1) with respect to a corporation, the Board of Directors of
the corporation or any committee thereof duly authorized to act on
behalf of such board;
(2) with respect to a partnership, the Board of Directors of
the general partner of the partnership;
(3) with respect to a limited liability company, the managing
member or members or any controlling committee of managing members
thereof; and
(4) with respect to any other Person, the board or committee
of such Person serving a similar function.
"Business Day" means any day other than a Legal Holiday.
"Capitalized Lease Obligations" of a Person means the rental
obligations under any lease of any property (whether real, personal or mixed) of
which the discounted present value of the rental obligations of that Person as
lessee, in conformity with GAAP, is required to be capitalized on the balance
sheet of that Person. The Stated Maturity of any such lease shall be the date of
the last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be terminated by the lessee without payment
of a penalty.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
2
(3) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership
interests; and
(4) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person, but excluding from all
of the foregoing any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of participation
with Capital Stock.
"Change in Control" means the occurrence of any of the following:
(1) any Person, including any syndicate or group deemed to be
a "person" under Section 13(d)(3) of the Exchange Act, acquires
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 the Person to exercise
50% or more of the total voting power of all shares of the Company's
Capital Stock that is entitled to vote generally in elections of
directors, other than an acquisition by the Company, any of its
Subsidiaries or any of its employee benefit plans; or
(2) the Company merges or consolidates with or into any other
Person, any merger of another Person into the Company, or the Company
conveys, sells, transfers or leases all or substantially all of its
assets to another Person, other than any transaction:
(a) that does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of the
Company's Capital Stock,
(b) pursuant to which the holders of the Company's
Common Stock immediately prior to the transaction have the entitlement
to exercise, directly or indirectly, 50% or more of the total voting
power of all shares of Capital Stock entitled to vote generally in the
election of directors of the continuing or surviving corporation
immediately after the transaction, or
(c) which is effected solely to change the Company's
jurisdiction of incorporation and results in a reclassification,
conversion or exchange or outstanding shares of the Company's Common
Stock solely into shares of Common Stock of the surviving entity.
"Common Stock" means shares of the Company's Common Stock, $0.001 par
value per share, as they exist on the date of this Indenture or any other shares
of Capital Stock of the Company into which the Common Stock shall be
reclassified or changed.
"Common Stock Price" on any date means the closing sale price per share
(or if no closing sale price is reported, the average of the bid and ask prices
or, if more than one in either case, the average of the average bid and the
average ask prices) on such date for the Company's Common Stock as reported in
composite transactions on the principal United States securities exchange on
which the Company's Common Stock is traded or, if its Common Stock is not listed
on a United States national or regional securities exchange, as reported by
NASDAQ.
"Company" means Calpine Corporation, a Delaware Corporation and any and
all successors thereto.
"Consolidated Current Liabilities," means, as of the date of
determination, the aggregate amount of consolidated liabilities of the Company
and its consolidated Restricted Subsidiaries, which may
3
properly be classified as current liabilities (including taxes accrued as
estimated), after eliminating (i) all inter-company items between the Company
and its Subsidiaries and (ii) all current maturities of long-term Indebtedness,
all as determined in accordance with GAAP.
"Consolidated Net Tangible Assets" means, as of the date of
determination, the total amount of consolidated assets (less accumulated
depreciation or amortization, allowances for doubtful receivables, other
applicable reserves and other properly deductible items) under GAAP which would
appear on the consolidated balance sheet of the Company and its Subsidiaries,
determined in accordance with GAAP, and after giving effect to purchase
accounting and after deducting therefrom, to the extent otherwise included, the
amounts of:
(a) Consolidated Current Liabilities;
(b) minority interests in the Company's consolidated
Restricted Subsidiaries held by Persons other than the Company or a
Restricted Subsidiary;
(c) excess of cost over fair value of assets of businesses
acquired, as determined in good faith by the Company's Board of
Directors;
(d) any revaluation or other write-up in value of assets
subsequent to December 31, 1993 as a result of a change in the method
of valuation in accordance with GAAP;
(e) unamortized debt discount and expenses and other
unamortized deferred charges, goodwill, patents, trademarks, service
marks, trade names, copyrights, licenses, organization or developmental
expenses and other intangible items;
(f) treasury stock; and
(g) any cash set apart and held in a sinking fund or other
analogous fund established for the purpose of redemption or other
retirement of Capital Stock to the extent such obligation is not
reflected in Consolidated Current Liabilities.
"Conversion Date" shall have the meaning as specified in Section 10.02
hereof.
"Conversion Price" means $6.50 per share of Common Stock as of the date
of the Original Indenture, subject to the adjustments described in Section 10.05
hereof.
"Conversion Rate" means an amount of shares equal to $1,000 principal
amount of Notes divided by the Conversion Price, which shall be 153.8462 as of
the date of the Original Indenture, subject to the adjustments described in
Section 10.05 hereof.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 12.02 hereof or such other address as to which the
Trustee may give written notice to the Company.
"Custodian" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
4
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit A hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exercise Period" means the period that is 30 calendar days from the
date of the Original Indenture (or such other date as set forth in the Purchase
Agreement) during which the Initial Purchasers have the right to exercise the
Initial Purchaser Option.
"Fair Market Value" means the value that would be paid by a willing
buyer to a willing seller in a transaction not involving distress or necessity
of either party, determined in good faith by the Board of Directors of the
Company, whose determination shall be conclusive evidence of such determination
(unless otherwise provided in this Indenture).
"GAAP" means generally accepted accounting principles set forth in the
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a
significant segment of the accounting profession, which are in effect and, to
the extent optional, adopted by the Company, on the applicable date of
determination.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes, substantially in the form of Exhibit A hereto issued in
accordance with Section 2.01 or 2.06(b)(3) hereof.
"Global Note Legend" means the legend set forth in Section 2.06(e)(2),
which is required to be placed on all Global Notes issued under this Indenture.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means a Global Note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of and registered in the name of the Depositary
or its nominee that shall be issued in a denomination equal to the outstanding
principal amount of the Notes sold to Institutional Accredited Investors.
"Incur" means, as applied to any obligation, to create, incur, issue,
assume, guarantee or in any other manner become liable with respect to,
contingently or otherwise, such obligation, and "Incurred," "Incurrence" and
"Incurring" shall each have a correlative meaning; provided, however, that any
amendment, modification or waiver of any provision of any document pursuant to
which Indebtedness was previously Incurred shall not be deemed to be an
Incurrence of Indebtedness as long as such amendment, modification or waiver
does not (A) increase the principal or premium thereof or interest rate thereon,
(B) change to an earlier date the Stated Maturity thereof or the date of any
schedule or required principal payment thereon or the time or circumstances
under which such Indebtedness may or shall be redeemed, (C) if such Indebtedness
is contractually subordinated in right of payment to the Notes, modify
5
or affect, in any manner adverse to the Holders, such subordination or (D) if
the Company is the obligor thereon, provide that a Restricted Subsidiary shall
be an obligor and (ii) such Indebtedness would, after giving effect to such
amendment, modification or waiver as if it were an Incurrence, be refinancing
Indebtedness that is contractually subordinated in right of payment to the Notes
to at least the same extent as the Indebtedness being refinanced.
"Indebtedness" of any Person means, without duplication:
(a) the principal of and premium (if any premium is then due
and owing) in respect of indebtedness of such person for money
borrowed;
(b) all Capitalized Lease Obligations of such person;
(c) all Obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar
credit transaction, other than Obligations with respect to letters of
credit securing Obligations (other than Obligations described in
clauses (a) and (b) above) entered into in the ordinary course of
business of such Person to the extent such letters of credit are not
drawn upon or, if and to the extent drawn upon, such drawing is
reimbursed no later than the tenth Business Day following receipt by
such Person of a demand for reimbursement following payment on the
letter of credit;
(d) all Obligations of the type referred to in clauses (a)
through (c) above of other Persons and all dividends of other Persons
for the payment of which, in either case, that Person is responsible or
liable, directly or indirectly, as obligor, guarantor or otherwise; and
(e) all Obligations of the type referred to in clauses (a)
through (d) above of other Persons secured by any Lien on any property
or asset of that Person (whether or not such obligation is assumed by
that person), the amount of the obligation on any date of determination
being deemed to be the lesser of the value of the property or assets or
the amount of the obligation so secured.
The amount of Indebtedness of any Person at any date shall be, with
respect to unconditional Obligations, the outstanding balance at such date of
all such Obligations as described above and, with respect to any contingent
Obligations at such date, the maximum liability determined by such Person's
Board of Directors, in good faith, in light of the facts and circumstances
existing at the time, as reasonably likely to be Incurred upon the occurrence of
the contingency giving rise to such Obligation.
"Indenture" means this indenture, as amended or supplemented from time
to time.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Initial Notes" means the first $600,000,000 aggregate principal amount
of Notes issued under the Original Indenture on the date thereof. "Initial
Purchasers" means Deutsche Bank Securities Inc., Credit Lyonnais Securities
(USA) Inc., Harris Nesbitt Corp. and Williams Capital Group LP.
"Initial Purchaser Option" means the right given to Deutsche Bank
Securities Inc. pursuant to the Purchase Agreement to purchase, at its election,
up to $300,000,000 in aggregate principal amount of Notes.
6
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Lien" means any mortgage, lien, pledge, charge, or other security
interest or encumbrance of any kind (including any conditional sale or other
title retention agreement and any lease in the nature thereof).
"Liquidated Damages" has the meaning set forth in the Registration
Rights Agreement.
"Market Price" means the average determined by the Company of the
Common Stock Price of the shares for the five Trading Date period immediately
preceding and including the third Trading Date prior to (a) in the case of a
redemption pursuant to Section 3.09 or 3.10, the applicable Purchase Date or
Change in Control Purchase Date, as the case may be, appropriately adjusted to
take into account the occurrence, during the period commencing on the first of
the Trading Days during such five Trading Day period and ending on such Purchase
Date or Change in Control Purchase Date, as the case may be, of any event
described in Section 10.05 and (b) in the case of an adjustment to the
Conversion Price or Conversion Rate pursuant to Section 10.05, the applicable
date fixed for the determination of stockholders entitled to receive any
distribution described in Section 10.05, appropriately adjusted to take into
account the occurrence, during the period commencing on the first of the Trading
Days during such five Trading Day period and ending on such determination date,
of any event described in Section 10.05; subject, however, in the case of both
(a) and (b), to the conditions set forth in Section 10.06 and 10.07 hereof. If
the shares of Common Stock are not listed on The New York Stock Exchange, then
the Market Price shall be determined by the Company by reference to the Common
Stock Price as reported by the National Association of Securities Dealers
Automated Quotation System ("NASDAQ"). In the absence of such quotations, the
Company shall be entitled to determine in good faith the Market Price by
reference to the Common Stock Price on any date on the basis of such quotations
as it considers appropriate.
"Note Documents" means this Indenture and the Notes (including any
Additional Notes issued under the Original Indenture).
"Notes" has the meaning assigned to it in the preamble to this
Indenture. The Initial Notes and the Additional Notes shall be treated as a
single class for all purposes under this Indenture, and unless the context
otherwise requires, all references to the Notes shall include the Initial Notes
and any Additional Notes.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness (including the Notes and this
Indenture).
"Offering Circular" means that certain Confidential Offering Circular
dated November 7, 2003, as amended by the Supplement to the Confidential
Offering Circular, dated January 6, 2004, with respect to offerings of the
Notes.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
7
"Officer's Certificate" means a certificate signed on behalf of the
Company by one Officer of the Company that meets the requirements of Section
12.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
12.05 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"Participant" means, with respect to the Depositary, a Person who has
an account with the Depositary.
"Permitted Investments" means the following investments:
(i) any direct obligations of, or obligations fully and unconditionally
guaranteed by, the United States of America, or any agency or instrumentality of
the United States of America, the obligations of which are fully and
unconditionally backed by the full faith and credit of the United States of
America;
(ii) demand and time deposits in, certificates of deposit of, bankers'
acceptances issued by, or federal funds sold by any depository institution or
trust company incorporated under the laws of the United States of America or any
state thereof and subject to supervision and examination by federal and/or state
authorities, or incorporated under the laws of any other jurisdiction, so long
as at the time of such investment or contractual commitment providing for such
investment the unsecured commercial paper or other unsecured short-term debt
obligations of such depository institution or trust company have credit ratings
of at least P-1 (or its equivalent) or higher from Moody's and A-1 (or its
equivalent) or higher from S&P
(iii) repurchase obligations with respect to any security described in
clauses (i) or (ii) above, in each case entered into with either (A) a
depository institution or trust company (acting as principal) which in respect
of its short-term unsecured debt has credit ratings of at least P-1 (or its
equivalent) or higher from Moody's and A-1 (or its equivalent) or higher from
S&P or (B) a money market fund maintained by a broker which, in respect of its
short-term unsecured debt, has credit ratings of at least P-1 (or its
equivalent) or higher from Moody's and A-1 (or its equivalent) or higher from
S&P
(iv) unsecured debt securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United States of
America or any state thereof which have, at the time of such investment, credit
ratings of at least P-1 (or its equivalent) or higher from Moody's and A-1 (or
its equivalent) or higher from S&P
(v) unsecured commercial paper which has, at the time of such
investment, credit ratings of at least P-1 (or its equivalent) or higher from
Moody's and A-1 (or its equivalent) or higher from S&P and
(vi) investments in money market funds or money market mutual funds
which have, at the time of such investment, credit ratings of at least P-1 (or
its equivalent) or higher from Moody's and A-1 (or its equivalent) or higher
from S&P (including such funds for which the Trustee or any of its Affiliates is
investment manager or advisor and for which the Trustee or any of its Affiliates
may receive a fee).
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"Private Placement Legend" means the legend set forth in Section
2.06(e)(1) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
8
"Purchase Agreement" means the Purchase Agreement by and between the
Company and Deutsche Bank Securities Inc. as representative of the several
Initial Purchasers, dated as of November 6, 2003, as may be amended from time to
time.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of November 14, 2003, among the Company and the Initial
Purchasers.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Subsidiary" means any Subsidiary of a Person that is not
designated an Unrestricted Subsidiary by that Person's Board of Directors.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"S&P" means Standard & Poor's Ratings Group (or, if such entity ceases
to rate the Notes for reasons outside of the control of the Company, the
equivalent investment grade credit rating from any other "nationally recognized
statistical rating organization" (or successor concept) within the meaning of
Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act (or successor provision)
selected by the Company as a replacement agency).
"Sale and Leaseback Transaction" means an arrangement relating to
property now owned or later acquired whereby a Person or one of such Person's
Subsidiaries transfers that property to another Person and then leases it back
from such Person, other than leases for a term of not more than 36 months or
leases between such Person and a Wholly Owned Subsidiary of such Person or
between such Person's Wholly Owned Subsidiaries.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the documentation governing
such Indebtedness as of the date of this Indenture, and shall not include any
contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.
"Subsidiary" means, as applied to any Person, any corporation, limited
or general partnership, trust, association or other business entity of which an
aggregate of at least 50% of the outstanding Voting Stock, or an equivalent
controlling interest therein, of such Person is, at the time, directly or
indirectly, owned by such Person and/or one or more Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb), as amended, as in effect on the date of this Indenture, except as
provided in Section 9.03 of this Indenture.
"Trading Day" means any regular or abbreviated trading day of The New
York Stock Exchange.
9
"Trading Price" of the Notes on any date of determination means the
average of the secondary market bid quotations per $1,000 principal amount of
Notes obtained by the Bid Solicitation Agent for $5,000,000 principal amount of
the Notes at approximately 3:30 p.m., New York City time, on such determination
date from three independent nationally recognized securities dealers the Company
selects, which may include any of the Initial Purchasers; provided that if at
least three such bids cannot reasonably be obtained by the Bid Solicitation
Agent, but two such bids are obtained, then the average of the two bids shall be
used, and if only one such bid can reasonably be obtained by the Bid
Solicitation Agent, this one bid shall be used. If the Bid Solicitation Agent
cannot reasonably obtain at least one such bid or, in the Company's reasonable
judgment, the bid quotations are not indicative of the secondary market value of
the Notes, then the Trading Price of the Notes will be determined in good faith
by the Bid Solicitation Agent, taking into account in such determination such
factors as it, in its sole discretion after consultation with the Company, deems
appropriate. The Bid Solicitation Agent shall have no obligation to determine
the Trading Price of the Notes unless the Company has requested such
determination in writing, and the Company shall have no obligation to make such
request unless a Holder of the Notes provides the Company with reasonable
evidence that the Trading Price of the Notes would be less than 95% of the
product of the Common Stock Price and the Conversion Rate. At such time, the
Company shall instruct the Bid Solicitation Agent in writing to determine the
trading price beginning on the next Trading Day and on each successive Trading
Day until the Trading Price of the Notes is greater than or equal to 95% of the
product of the Common Stock Price and the Conversion Rate. The Company will
notify the Trustee of the results of any Trading Price determination within a
reasonable time (and, in any event, no later than three Business Days prior to
the Conversion Date).
"Trustee" means the party named as such in the preamble to this
Indenture until a successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor serving
hereunder.
"Unrestricted Subsidiary" means:
(i) any Subsidiary that at the time of determination shall be
designated an Unrestricted Subsidiary by a Person's Board of Directors in the
manner provided below and
(ii) any Subsidiary of an Unrestricted Subsidiary.
A Person's Board of Directors may designate any Subsidiary (including
any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, such Person or any other Subsidiary of such Person that is not
a Subsidiary of the Subsidiary to be so designated, so long as the Subsidiary to
be designated an Unrestricted Subsidiary and all other Subsidiaries previously
so designated at the time of any determination hereunder shall, in the
aggregate, have total assets not greater than 5% of the Company's Consolidated
Net Tangible Assets as determined based on the consolidated balance sheet of
such Person as of the end of the most recent financial quarter for which
financial statements are available. A Person's Board of Directors may designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however,
that immediately after giving effect to that designation no Default or Event of
Default under this Indenture shall have occurred and be continuing.
Any such designation by a Person's Board of Directors shall be
evidenced to the Trustee by promptly filing with the Trustee a copy of the board
resolution giving effect to the designation and a certificate signed by two of
that Person's Officers certifying that the designation complied with these
provisions. However, the failure to file the resolution and/or certificate with
the Trustee shall not impair or affect the validity of the designation.
10
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Wholly Owned Subsidiary" of any Person means a Subsidiary (other than
an Unrestricted Subsidiary) of such Person all of the outstanding Capital Stock
or other ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person or by one or more Wholly Owned
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Subsidiaries of such Person.
Section 1.02 Other Definitions.
Defined in
Term Section
- ------ ----------
"Authentication Order"........................................... 2.02
"Change in Control Notice"....................................... 3.10
"Change in Control Notice Date".................................. 3.10
"Change in Control Purchase Date"................................ 3.10
"Change in Control Purchase Notice".............................. 3.10
"Change in Control Purchase Price"............................... 3.10
"Company Notice"................................................. 3.09
"Company Notice Date"............................................ 3.09
"Conversion Agent"............................................... 2.03
"Conversion Date"................................................ 10.02
"Conversion Price"............................................... 10.05
"Conversion Value"............................................... 10.14
"Covenant Defeasance"............................................ 8.03
"DTC"............................................................ 2.03
"Determination Date"............................................. 10.14
"Event of Default"............................................... 6.01
"Ex-Dividend Date"............................................... 10.01
"Expiration Time"................................................ 10.05
"Five Day Average Closing Stock Price"........................... 10.14
"Legal Defeasance"............................................... 8.02
"Net Shares"..................................................... 10.14
"Net Share Amount"............................................... 10.14
"Paying Agent"................................................... 2.03
"Pre-Dividend Sale Price"........................................ 10.05
"Principal Return"............................................... 10.14
"Principal Value Conversion"..................................... 10.01
"Purchase Date".................................................. 3.09
"Purchase Notice"................................................ 3.09
"Purchase Price"................................................. 3.09
"Purchased Shares"............................................... 10.05
"Quarter"........................................................ 10.01
"Reference Date"................................................. 10.05
"Registrar"...................................................... 2.03
11
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"obligor" on the Notes means the Company and any successor obligor upon
the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) "shall" shall be interpreted to express a command;
(6) provisions apply to successive events and
transactions; and
(7) references to sections of or rules under the
Securities Act shall be deemed to include substitute, replacement of
successor sections or rules adopted by the SEC from time to time.
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange rule
or usage. Each Note shall be dated the date of its authentication. The Notes
shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend thereon and the "Schedule of Exchanges of Interests in
12
the Global Note" attached thereto). Notes issued in definitive form shall be
substantially in the form of Exhibit A attached hereto (but without the Global
Note Legend thereon and without the "Schedule of Exchanges of Interests in the
Global Note" attached thereto). Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall provide that it
represents the aggregate principal amount of outstanding Notes from time to time
endorsed thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06 hereof.
Section 2.02 Execution and Authentication.
One Officer must sign the Notes for the Company by manual or facsimile
signature.
If the Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Note has
been authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Company signed
by one Officer (an "Authentication Order"), authenticate (i) Initial Notes in an
aggregate principal amount up to $600 million on the date of the Original
Indenture and (ii) Additional Notes from time to time as permitted under this
Indenture.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
Section 2.03 Registrar, Paying Agent and Conversion Agent.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent") and
an office or agency where Securities may be presented for conversion
("Conversion Agent"). The Registrar shall keep a register of the Notes and of
their transfer and exchange. The Company may appoint one or more co-registrars
and one or more additional paying agents. The term "Registrar" includes any
co-registrar, the term "Paying Agent" includes any additional paying agent and
the term "Conversion Agent" includes any additional conversion agent. The
Company may change any Conversion Agent, Paying Agent or Registrar without
notice to any Holder. The Company shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Conversion Agent, Registrar,
Paying Agent, the Trustee shall act as such. The Company or any of its
Subsidiaries may act as Conversion Agent, Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Conversion
Agent, Registrar and Paying Agent and to act as Custodian with respect to the
Global Notes.
13
Section 2.04 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, or interest on the Notes, and shall notify the
Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent for
the Notes.
Section 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section. 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA Section 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes
shall be exchanged by the Company for Definitive Notes if:
(1) the Company delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under
the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 120 days after the date of such notice
from the Depositary; or
(2) the Company in its sole discretion determines that
the Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and delivers a written notice to such effect to the
Trustee.
Upon the occurrence of either of the preceding events in (1) or (2)
above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole
or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof,
shall be authenticated by the Trustee pursuant to an Authentication Order and
delivered in the form of, and shall be, a Global Note. A Global Note may not be
exchanged for another Note other than as provided in this Section 2.06(a),
however, beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in
14
accordance with the provisions of this Indenture and the Applicable Procedures.
Beneficial interests in the Restricted Global Notes shall be subject to
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act. Transfers of beneficial interests in the Global
Notes also shall require compliance with either subparagraph (1) or (2) below,
as applicable, as well as one or more of the other following subparagraphs, as
applicable:
(1) Transfer of Beneficial Interests in the Same Global
Note. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement
Legend. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.06(b)(1) above, the transferor of such beneficial interest must
deliver to the Registrar both:
(A) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial
interest to be transferred or exchanged; and
(B) instructions given in accordance with the
Applicable Procedures containing information regarding the
Participant account to be credited with such increase.
(3) Transfer of Beneficial Interests to Another
Restricted Global Note. A beneficial interest in any Restricted Global
Note may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.06(b)(2) above and
the Registrar receives the following:
(A) if the transferee shall take delivery in the
form of a beneficial interest in the 144A Global Note, then
the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1)
thereof; and
(B) if the transferee shall take delivery in the
form of a beneficial interest in the IAI Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications, certificates and Opinion
of Counsel required by item (2)(d) thereof, if applicable.
(4) Transfer and Exchange of Beneficial Interests in
Restricted Global Notes to Restricted Definitive Notes. If any holder
of a beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note or
to transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Restricted Definitive Note, then, upon receipt
by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (a) thereof;
15
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such beneficial interest is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2)(a) thereof;
(D) if such beneficial interest is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B) through (C) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (2)
thereof, if applicable;
(E) if such beneficial interest is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2)(b) thereof; or
(F) if such beneficial interest is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (2)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(f) hereof, and the
Company shall execute and the Trustee shall authenticate, upon receipt of an
Authentication Order, and deliver to the Person designated in such
Authentication Order a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.06(b) shall be registered in such name or
names and in such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial interest in
a Restricted Global Note pursuant to this Section 2.06(b) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer contained
therein.
(c) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(1) Restricted Definitive Notes to Beneficial Interests
in Restricted Global Notes. If any Holder of a Restricted Definitive
Note proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive
Note proposes to exchange such Note for a beneficial interest
in a Restricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item (b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
16
(C) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2)(a) thereof;
(D) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B) through (C) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (2)(d)
thereof, if applicable;
(E) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2)(b) thereof; or
(F) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (2)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note,
increase or cause to be increased the aggregate principal
amount of, in the case of clause (A) above, the appropriate
Restricted Global Note, in the case of clause (B) above, the
144A Global Note, and in all other cases, the IAI Global Note.
(d) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.06(d), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder must present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
must provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(d).
(1) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer shall be made pursuant to
Rule 144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof; and
(B) if the transfer shall be made pursuant to
any other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (2)
thereof, if applicable.
17
(e) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
(A) Each Global Note and each Definitive Note
(and all Notes issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the following
form:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN AND SHALL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (3) TO AN
INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS."
(2) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
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(AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(f) Cancellation and/or Adjustment of Global Notes. At such time
as all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who shall take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who shall take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(g) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Global
Notes and Definitive Notes upon receipt of an Authentication Order in
accordance with Section 2.02 or at the Registrar's request.
(2) No service charge shall be made to a Holder of a
Global Note or to a Holder of a Definitive Note for any registration of
transfer or exchange, 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
similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06, 3.09, 3.10 and 9.05 hereof).
(3) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such registration
of transfer or exchange.
(5) The Company shall not be required:
(A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close
of business on the day of selection;
(B) to register the transfer of or to exchange
any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part; or
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(C) to register the transfer of or to exchange a
Note between a record date and the next succeeding interest
payment date.
(6) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and
none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(7) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(8) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Note if the Trustee's
requirements hereunder are met. If required by the Trustee or the Company, an
indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Trustee and the Company to protect the Company, the Trustee, any Agent
and any authenticating agent from any loss that any of them may suffer if a Note
is replaced. The Company may charge the applicable Holder for its expenses in
replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
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Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that the Trustee knows are so owned shall be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the Company
considers appropriate for temporary Notes and as may be reasonably acceptable to
the Trustee. Without unreasonable delay, the Company shall prepare and the
Trustee shall, upon receipt of an Authentication Order, authenticate definitive
Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
canceled Notes in accordance with its customary practices (subject to the record
retention requirement of the Exchange Act). Certification of the destruction of
all canceled Notes shall be delivered to the Company. The Company may not issue
new Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company shall notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date, provided that no such special record date
may be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) shall mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
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ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Company elects to redeem the Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at
least 30 days but not more than 60 days before a redemption date, an Officer's
Certificate setting forth:
(1) the clause of this Indenture pursuant to which the
redemption shall occur;
(2) the redemption date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee shall select Notes for redemption or
purchase as follows:
(1) if the Notes are listed on any national securities
exchange, in compliance with the requirements of the principal national
securities exchange on which the Notes are listed; or
(2) if the Notes are not listed on any national
securities exchange, on a pro rata basis, by lot or by such method as
the Trustee shall deem fair and appropriate.
In the event of partial redemption or purchase by lot, the particular
Notes to be redeemed or purchased shall be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption or
purchase date by the Trustee from the outstanding Notes not previously called
for redemption or purchase.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption or purchase and, in the case of any Note selected for
partial redemption or purchase, the principal amount thereof to be redeemed or
purchased. Notes and portions of Notes selected shall be in amounts of $1,000 or
whole multiples of $1,000; except that if all of the Notes of a Holder are to be
redeemed or purchased, the entire outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except
as provided in the preceding sentence, provisions of this Indenture that apply
to Notes called for redemption or purchase also apply to portions of Notes
called for redemption or purchase.
Section 3.03 Notice of Optional Redemption.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address, except that redemption notices may be mailed more than 60 days prior to
a redemption date if the notice is issued in connection with a defeasance of the
Notes or a satisfaction and discharge of this Indenture pursuant to Articles 8
or 11, respectively, of this Indenture.
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The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(7) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(8) that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in such notice or
printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company has delivered to the Trustee, at least 45 days prior to the redemption
date, an Officer's Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
Section 3.04 Effect of Notice of Optional Redemption.
Once notice of redemption is mailed by the Company in accordance with
Section 3.03 hereof, Notes called for redemption become irrevocably due and
payable on the redemption date at the redemption price. A notice of redemption
may not be conditional.
Section 3.05 Deposit of Redemption or Purchase Price.
Not less than one Business Day prior to the redemption or purchase
price date, the Company shall deposit with the Trustee or with the Paying Agent
money sufficient to pay the redemption or purchase price of and accrued interest
on all Notes to be redeemed or purchased on that date. The Trustee or the Paying
Agent shall promptly return to the Company any money deposited with the Trustee
or the Paying Agent by the Company in excess of the amounts necessary to pay the
redemption or purchase price of, and accrued interest on, all Notes to be
redeemed or purchased.
If the Company complies with the provisions of the preceding paragraph,
on and after the redemption or purchase date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption or purchase. If a Note
is redeemed or purchased on or after an interest record date but on or prior to
the related interest payment date, then any accrued and unpaid interest (and
Liquidated Damages, if any) shall be paid to the Person in whose name such Note
was registered at the close of business on such record date. If any Note called
for redemption or purchase is not so paid upon surrender for
23
redemption or purchase because of the failure of the Company to comply with the
preceding paragraph, interest shall be paid on the unpaid principal, from the
redemption or purchase date until such principal is paid, and to the extent
lawful on any interest not paid on such unpaid principal, in each case at the
rate provided in the Notes and in Section 4.01 hereof.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the
Company shall issue and, upon receipt of an Authentication Order, the Trustee
shall authenticate for the Holder at the expense of the Company a new Note equal
in principal amount to the unredeemed or unpurchased portion of the Note
surrendered.
Section 3.07 Optional Redemption.
At any time on or after November 22, 2009, the Company may redeem the
Notes, in whole at any time, or in part from time to time, at a price equal to
100% of the aggregate principal amount of the Notes being redeemed plus accrued
and unpaid interest (and Liquidated Damages, if any) up to but not including the
date of redemption, payable to the Holders in cash. Any redemption pursuant to
this Section 3.07 shall be made pursuant to the provisions of Section 3.01
through 3.06 hereof.
Section 3.08 Mandatory Redemption.
The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
Section 3.09 Purchase of Notes at Option of the Holder.
(a) General. All or any portion of the Notes held by any Holder
shall be purchased by the Company at the option of the Holder on November 15,
2009, November 15, 2013 and November 15, 2018 (each a "Purchase Date"), at a
price equal to 100% of the aggregate principal amount of the Notes being
purchased plus accrued and unpaid interest (and Liquidated Damages, if any) to
the applicable Purchase Date (the "Purchase Price"). Purchases of Notes
hereunder shall be made, at the option of the Holder thereof, upon:
(1) delivery to the Paying Agent by the Holder of a
written notice of purchase (a "Purchase Notice") at any time from the
opening of business on the date that is 20 Business Days prior to a
Purchase Date until the close of business on the last Business Day
prior to such Purchase Date stating:
(a) if certificated Notes have been issued, the
certificate number of the Note which the Holder will deliver
to be purchased, or if not certificated, the notice must
comply with the Applicable Procedures,
(b) the portion of the principal amount of the
Note which the Holder will deliver to be purchased, which
portion must be in principal amounts of $1,000 or an integral
multiple thereof,
(c) that such Note shall be purchased as of the
Purchase Date pursuant to the terms and conditions specified
in this Section 3.09, and
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(d) in the event the Company elects, pursuant to
Section 3.09(b), to pay the Purchase Price, in whole or in
part, in shares of Common Stock but such portion of the
Purchase Price shall ultimately be payable to such Holder
entirely in cash because any of the conditions to payment of
the Purchase Price in shares of Common Stock is not satisfied
prior to the close of business on the Purchase Date, as set
forth below, whether such Holder elects (x) to withdraw such
Purchase Notice as to some or all of the Notes to which such
Purchase Notice relates (stating the principal amount and
certificate numbers, if any, of the Notes as to which such
withdrawal shall relate), or (y) to receive cash in respect of
the entire Purchase Price for all Notes (or portions thereof)
to which such Purchase Notice relates; and
(2) delivery of such Note to the Paying Agent prior to,
on or after the Purchase Date (together with all necessary
endorsements) at the offices of the Paying Agent, such delivery being a
condition to receipt by the Holder of the Purchase Price therefor;
provided, however, that such Purchase Price shall be so paid pursuant
to this Section 3.09 only if the Note so delivered to the Paying Agent
shall conform in all respects to the description thereof in the related
Purchase Notice, as determined by the Company. If Global Notes are
outstanding, such notice and tender of such Notes must comply with
Applicable Procedures.
If a Holder, in such Holder's Purchase Notice and in any written notice
of withdrawal delivered by such Holder pursuant to the terms of Section 3.11,
fails to indicate such Holder's choice with respect to the election set forth in
clause (d) of Section 3.09(a)(1), such Holder shall be deemed to have elected to
receive cash in respect of the entire Purchase Price for all Notes subject to
such Purchase Notice in the circumstances set forth in such clause (d).
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.09, a portion of a Note if the principal amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Note also apply to the purchase of such
portion of such Note.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.09 shall be consummated by the delivery of the consideration to
be received by the Holder promptly following the later of (x) the Purchase Date
and (y) the time of delivery of the Note.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Purchase Notice contemplated by this Section 3.09(a)
shall have the right to withdraw such Purchase Notice at any time prior to the
close of business on the Business Day preceding the Purchase Date by delivery of
a written notice of withdrawal to the Paying Agent in accordance with Section
3.11.
The Paying Agent shall promptly notify the Company of the receipt by it
of any Purchase Notice or written notice of withdrawal thereof.
(b) Company's Right to Elect Manner of Payment of Purchase Price
for Payment. The Notes to be purchased on any Purchase Date pursuant to Section
3.09(a) may be paid for, at the election of the Company, in cash or shares of
Common Stock, or in any combination of cash and shares of Common Stock, subject
to the conditions set forth in Section 3.09(c). The Company shall designate, in
the Company Notice delivered pursuant to Section 3.09(d), which shall be sent to
Holders (and to beneficial owners as required by applicable law) not less than
20 Business Days prior to the Purchase Date (the "Company Notice Date"), whether
the Company will purchase the Notes for cash or shares of Common Stock, or, if a
combination thereof, the percentages of the Purchase Price of Notes in respect
of which it will pay in cash and shares of Common Stock; provided, however, that
the Company will pay cash for fractional shares of Common Stock. For purposes of
determining the existence of potential
25
fractional shares, all Notes subject to purchase by the Company held by a Holder
shall be considered together (no matter how many separate certificates are to be
presented). Each Holder whose Notes are purchased pursuant to this Section 3.09
shall receive the same percentage of cash or shares of Common Stock in payment
of the Purchase Price for such Notes, except (i) as provided in Section 3.09(c)
with regard to the payment of cash in lieu of fractional shares of Common Stock
and (ii) in the event that the Company is unable to purchase the Notes of a
Holder or Holders for shares of Common Stock because any necessary
qualifications or registrations of the shares of Common Stock under applicable
state securities laws cannot be obtained, the Company may purchase the Notes of
such Holder or Holders for cash. The Company may not change its election with
respect to the consideration (or components or percentages of components
thereof) to be paid once the Company has given its Company Notice to Holders of
Notes except pursuant to this Section 3.09(b) or pursuant to Section 3.09(c) in
the event of a failure to satisfy, prior to the close of business on the
Purchase Date, any condition to the payment of the Purchase Price, in whole or
in part, in Common Stock.
At least three Business Days before the Company Notice Date, the
Company shall deliver an Officer's Certificate to the Trustee specifying:
(1) the manner of payment selected by the Company;
(2) the information required by Section 3.09(d);
(3) if the Company elects to pay the Purchase Price, or a
specified percentage thereof, in Common Stock, that the conditions to
such manner of payment set forth in Section 3.09(c) have been or will
be complied with; and
(4) whether the Company desires the Trustee to give the
Company Notice required by Section 3.09(d).
Simultaneously with the delivery of the Company Notice to Holders, the
Company shall, or, if the Company has requested that Trustee deliver the Company
Notice to Holders pursuant to this Section 3.09(b), shall cause the Trustee to,
at the Company's expense and in the Company's name, disseminate a press release
through any of Dow Jones & Company, Inc., Business Wire, Bloomberg Business News
or Reuters (or if such organizations are not in existence at the time of
issuance of such press release, such other news or press organization as is
reasonably calculated to broadly disseminate the relevant information to the
public) containing this information, and the Company shall publish the
information on the Company's Web site on the World Wide Web or through such
other public medium as the Company may use at that time.
(c) Payment by Issuance of Shares of Common Stock. At the option
of the Company, the Purchase Price of Notes in respect of which a Purchase
Notice pursuant to Section 3.09(a) has been given, or a specified percentage
thereof, may be paid by the Company by the issuance of a number of shares of
Common Stock equal to the quotient obtained by dividing (i) the amount of cash
to which the Holders of Notes would have been entitled had the Company elected
to pay all or such specified percentage, as the case may be, of the Purchase
Price of such Notes in cash by (ii) the Market Price of one share of Common
Stock, subject to the next succeeding paragraph.
The Company will not issue a fractional shares of Common Stock in
payment of the Purchase Price. Instead the Company will pay cash for the current
Market Price of the fractional share. The current Market Price of a fraction of
a share shall be determined by the Company by multiplying the Market Price by
such fraction and rounding the product to the nearest whole cent with one-half
cent being rounded
26
upward. It is understood that if a Holder elects to have more than one Note
purchased, the number of shares of Common Stock shall be based on the aggregate
amount of Notes to be purchased.
If the Company elects to purchase the Notes by the issuance of shares
of Common Stock, the Company Notice, as provided in Section 3.09(d), shall be
sent to the Holders (and to beneficial owners as required by applicable law) not
later than the Company Notice Date.
The Company's right to exercise its election to purchase Notes through
the issuance of shares of Common Stock shall be conditioned upon:
(1) the Company's not having given its Company Notice of
an election to pay entirely in cash and its giving of timely Company
Notice of election to purchase all or a specified percentage of the
Notes with shares of Common Stock as provided herein;
(2) the registration of such shares of Common Stock under
the Securities Act, or the Exchange Act, in each case, if required;
(3) such shares of Common Stock having been listed on the
principal national securities exchange (currently The New York Stock
Exchange) on which the Common Stock is listed;
(4) any necessary qualification or registration under
applicable state securities laws or the availability of an exemption
from such qualification and registration; and
(5) the receipt by the Trustee of an Officer's
Certificate stating that (A) the terms of the issuance of the shares of
Common Stock are in conformity with this Indenture and (B) the shares
of Common Stock to be issued by the Company in payment of the Purchase
Price in respect of Notes have been duly authorized and, when issued
and delivered pursuant to the terms of this Indenture in payment of the
Purchase Price in respect of the Notes, will be validly issued, fully
paid and non-assessable and free from preemptive rights, and stating
that the conditions above and the condition set forth in the second
succeeding sentence have been satisfied.
Such Officer's Certificate shall also set forth (i) the number of
shares of Common Stock to be issued for each $1,000 principal amount of Notes,
(ii) the Common Stock Price on each Trading Day during the period commencing on
the first Trading Day of the period during which the Market Price is calculated
and ending on the third Business Day prior to the applicable Purchase Date and
(iii) the Market Price of the Common Stock. The Company may pay the Purchase
Price (or any portion thereof) in shares of Common Stock only if the information
necessary to calculate the Market Price is published in a daily newspaper of
national circulation or is otherwise publicly available (e.g., by dissemination
on the World Wide Web or by other public means). If the foregoing conditions are
not satisfied with respect to a Holder or Holders prior to the close of business
on the Purchase Date and the Company has elected to purchase the Notes pursuant
to this Section 3.09 through the issuance of shares of Common Stock, the Company
shall pay the entire Purchase Price of the Notes of such Holder or Holders in
cash.
Upon determination of the actual number of shares of Common Stock to be
issued for each $1,000 principal amount of Notes, not later than the second
Business Day prior to the relevant Purchase Date, the Company will disseminate a
press release through any of Dow Jones & Company, Inc., Business Wire, Bloomberg
Business News or Reuters (or if such organizations are not in existence at the
time of issuance of such press release, such other news or press organization as
is reasonably calculated to broadly disseminate the relevant information to the
public) containing this information and publish the
27
information on the Company's Web site on the World Wide Web or through
such other public medium as the Company may use at that time.
(d) Notice of Election. In connection with any purchase of Notes
pursuant to this Section 3.09, the Company shall give notice to Holders setting
forth information specified in this Section 3.09(d) (the "Company Notice").
In the event the Company has elected to pay the Purchase Price (or a
specified percentage thereof) with shares of Common Stock, the Company Notice
shall:
(1) state that each Holder will receive shares of Common
Stock with a Market Price determined as of a specified date prior to
the Purchase Date equal to such specified percentage of the Purchase
Price of the Notes held by such Holder (except any cash amount to be
paid in lieu of fractional shares);
(2) set forth the method of calculating the Market Price
of the shares of Common Stock; and
(3) state that because the Market Price of shares of
Common Stock will be determined prior to the Purchase Date, Holders
will bear the market risk with respect to the value of the shares of
Common Stock to be received from the date such Market Price is
determined to the Purchase Date.
In any case, each Company Notice shall include a form of Purchase
Notice to be completed by a Holder of Notes and shall state:
(1) the Purchase Price and the Conversion Price;
(2) the name and address of the Paying Agent and the
Conversion Agent;
(3) that Notes as to which a Purchase Notice has been
given may be converted if they are otherwise convertible only in
accordance with Article 10 hereof and Paragraph 9 of the Notes if the
applicable Purchase Notice has been withdrawn in accordance with the
terms of this Indenture;
(4) that Notes must be surrendered to the Paying Agent to
collect payment;
(5) that the Purchase Price for any security as to which
a Purchase Notice has been given and not withdrawn will be paid
promptly following the later of (x) the Purchase Date and (y) the time
of surrender of such Note as described in (4);
(6) the procedures the Holder must follow to exercise its
rights under Section 3.09 and a brief description of those rights;
(7) briefly, the conversion rights of the Notes;
(8) the procedures for withdrawing a Purchase Notice
(including, without limitation, for a conditional withdrawal pursuant
to the terms of Section 3.09(a)(1)(d) or Section 3.11);
28
(9) that, unless the Company defaults in making payment
on Notes for which a Purchase Notice has been submitted, interest on
such Notes will cease to accrue on the Purchase Date; and
(10) the CUSIP number of the Notes.
At the Company's request, the Trustee shall give such Company Notice in
the Company's name and at the Company's expense; provided, however, that, in all
cases, the text of such Company Notice shall be prepared by the Company.
(e) Covenants of the Company. All shares of Common Stock delivered
upon purchase of the Notes shall be newly issued shares or treasury shares,
shall be duly authorized, validly issued, fully paid and nonassessable, and
shall be free from preemptive rights and free of any lien or adverse claim.
(f) Procedure upon Purchase. The Company shall deposit cash (in
respect of cash purchases under this Section 3.09 or for fractional shares, as
applicable) or shares of Common Stock in respect of payment by issuance of
shares of Common Stock under Section 3.09(c), except for fractional shares, or a
combination thereof, as applicable, at the time and in the manner as provided in
Section 3.12, sufficient to pay the aggregate Purchase Price of all Notes to be
purchased pursuant to this Section 3.09. As soon as practicable after the
Purchase Date, the Company shall deliver to each Holder entitled to receive
shares of Common Stock through the Paying Agent a certificate for the number of
full shares of Common Stock issuable in payment of the Purchase Price and cash
in lieu of any fractional shares. The person in whose name the certificate for
shares of Common Stock is registered shall be treated as a holder of record of
Common Stock on the Business Day following the Purchase Date. No payment or
adjustment will be made for dividends on the shares of Common Stock the record
date for which occurred on or prior to the Purchase Date.
(g) Taxes. If a Holder of a purchased Note (pursuant to this
Section 3.09 or Section 3.10) is paid in shares of Common Stock, the Company
shall pay any documentary, stamp or similar issue or transfer tax due on such
issue of Common Stock. However, the Holder shall pay any such tax which is due
because the Holder requests the Common Stock to be issued in a name other than
the Holder's name. The Paying Agent may refuse to deliver the certificates
representing the shares of Common Stock being issued in a name other than the
Holder's name until the Paying Agent receives a sum sufficient to pay any tax
which will be due because the shares of Common Stock are to be issued in a name
other than the Holder's name. Nothing herein shall preclude any income tax
withholding required by law or regulations.
Section 3.10 Purchase of Notes at Option of the Holder upon Change in Control.
(a) If a Change in Control occurs, a Holder of Notes will have the
right, at its option, to require the Company to repurchase all of its Notes, or
any portion of the principal amount thereof at a purchase price equal to (1) the
issue price plus any accrued and unpaid interest (and Liquidated Damages, if
any) or (2) at the option of the Company, a number of shares of Common Stock as
calculated below (the "Change in Control Purchase Price"), as of the date that
is 45 days after the date of the Change in Control Notice (as defined below)
delivered by the Company (the "Change in Control Purchase Date"), subject to
satisfaction by or on behalf of the Holder of the requirements set forth in
Section 3.10(c).
Notwithstanding the foregoing provisions of this Section 3.10, a Change
in Control shall not be deemed to have occurred if:
(1) the Common Stock Price on The New York Stock Exchange
for any five Trading Days within the period of 10 consecutive Trading
Days ending immediately after the later of the
29
event, that, but for this provision, would constitute a Change in
Control or the public announcement of such event, in the case of a
Change in Control relating to an acquisition of Capital Stock, or the
period of 10 consecutive Trading Days ending immediately before such
event, in the case of Change in Control relating to a merger,
consolidation or asset sale, equals or exceeds 105% of the Conversion
Price of the Notes in effect on each of those Trading Days; or
(2) all of the consideration (excluding cash payments for
fractional shares and cash payments made pursuant to dissenters'
appraisal rights) in a merger or consolidation otherwise constituting a
Change in Control above consists of shares of common stock traded on a
national securities exchange or quoted on the Nasdaq National Market
(or will be so traded or quoted immediately following the merger or
consolidation) and as a result of the merger or consolidation the Notes
become convertible into such common stock.
For purposes of this Section 3.10,
(x) the Conversion Price is equal to $1,000 divided by
the Conversion Rate,
(y) whether a person is a "beneficial owner" shall be
determined in accordance with Rule 13d-3 under the Exchange Act; and
(z) "person" includes any syndicate or group that would
be deemed to be a "person" under Section 13(d)(3) of the Exchange Act.
If the shares of Common Stock are not listed on The New York Stock
Exchange at the relevant time, closing prices and Trading Days shall be
calculated as reported by the NASDAQ.
At the option of the Company, the Change in Control Purchase Price of
Notes in respect of which a Change in Control Purchase Notice pursuant to
Section 3.10(c) has been given may be paid by the Company by the issuance of a
number of shares of Common Stock equal to the quotient obtained by dividing (i)
the product of (A) the amount of cash to which the Holders of Notes would have
been entitled had the Company elected to pay all of the Change in Control
Purchase Price of such Notes in cash and (B) 0.95, by (ii) the Market Price of
shares of Common Stock, subject to the next succeeding paragraph.
The Company will not issue fractional shares of Common Stock in payment
of the Change in Control Purchase Price. Instead the Company will pay cash for
the current Market Price of the fractional share. The current Market Price of a
fraction of a share shall be determined by multiplying the Market Price by such
fraction and rounding the product to the nearest whole cent, with one-half cent
being rounded upward. It is understood that if a Holder elects to have more than
one Note purchased, the number of shares of Common Stock shall be based on the
aggregate amount of Notes to be purchased.
In the event that the Company is unable to purchase the Notes of a
Holder or Holders for shares of Common Stock because any necessary
qualifications or registrations of the shares of Common Stock under applicable
state securities laws cannot be obtained, the Company may purchase the Notes of
such Holder or Holders for cash.
The Company may not change its election with respect to the
consideration to be paid once the Company has given its Change in Control Notice
to Holders of Notes except pursuant to this Section 3.10(a) or pursuant to
Section 3.10(b) in the event of a failure to satisfy, prior to the close of
business on the Change in Control Purchase Date, any condition to the payment of
the Change in Control Purchase Price in Common Stock.
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At least three Business Days before the Change in Control Notice Date
(as defined below), the Company shall deliver an Officer's Certificate to the
Trustee specifying:
(i) the manner of payment selected by the Company;
(ii) the information required by Section 3.10(b);
(iii) if the Company elects to pay the Change in Control
Purchase Price in Common Stock, that the conditions to such manner of
payment set forth in this Section 3.10(a) have been or will be complied
with; and
(iv) whether the Company desires the Trustee to give the
Change in Control Notice required by Section 3.10(b).
The Company's right to exercise its election to purchase Notes through
the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company's giving of timely Change in Control
Notice to purchase all of the Notes with shares of Common Stock as
provided herein;
(ii) the registration of such shares of Common Stock under
the Securities Act or the Exchange Act, in each case, if required;
(iii) such shares of Common Stock having been listed on the
principal national securities exchange (currently The New York Stock
Exchange) on which the Common Stock is listed;
(iv) any necessary qualification or registration under
applicable state securities laws or the availability of an exemption
from such qualification and registration; and
(v) the receipt by the Trustee of an Officer's
Certificate stating that (A) the terms of the issuance of the shares of
Common Stock are in conformity with this Indenture and (B) the shares
of Common Stock to be issued by the Company in payment of the Change in
Control Purchase Price in respect of Notes have been duly authorized
and, when issued and delivered pursuant to the terms of this Indenture
in payment of the Change in Control Purchase Price in respect of the
Notes, will be validly issued, fully paid and non-assessable and free
from preemptive rights, and stating that the conditions above and the
condition set forth in the second succeeding sentence have been
satisfied.
Such Officer's Certificate shall also set forth (i) the number of
shares of Common Stock to be issued for each $1,000 principal amount of Notes,
(ii) the Common Stock Price on each Trading Day during the period commencing on
the first Trading Day of the period during which the Market Price is calculated
and ending on the third Business Day prior to the Change in Control Purchase
Date and (iii) the Market Price of the Common Stock.
The Company may pay the Change in Control Purchase Price in shares of
Common Stock only if the information necessary to calculate the Market Price is
published in a daily newspaper of national circulation or is otherwise publicly
available (e.g., by dissemination on the World Wide Web or by other public
means). If the foregoing conditions are not satisfied with respect to a Holder
or Holders prior to the
31
close of business on the Change in Control Purchase Date and the Company has
elected to purchase the Notes pursuant to this Section 3.10 through the issuance
of shares of Common Stock, the Company shall pay the entire Purchase Price of
the Notes of such Holder or Holders in cash.
(b) No later than 30 days after the occurrence of a Change in
Control, the Company shall mail a written notice of the Change in Control (the
"Change in Control Notice" the date of such mailing, the "Change in Control
Notice Date") by first-class mail to the Trustee and to each Holder (and to
beneficial owners to the extent required by applicable law). The notice shall
include a form of Change in Control Purchase Notice to be completed by the
Holder that wishes to exercise rights under this Section 3.10 and shall state:
(1) briefly, the events causing a Change in Control and
the date of such Change in Control;
(2) the date by which the Change in Control Purchase
Notice pursuant to this Section 3.10 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) the name and address of the Paying Agent and the
Conversion Agent;
(6) the Conversion Rate and any adjustments thereto;
(7) that Notes must be surrendered to the Paying Agent to
collect payment;
(8) that the Change in Control Purchase Price for any
Note as to which a Change in Control Purchase Notice has been duly given will be
paid promptly following the later of (x) the Change in Control Purchase Date and
(y) the time of surrender of such Note as described in (7);
(9) briefly, the procedures the Holder must follow to
exercise rights under this Section 3.10;
(10) briefly, the conversion rights, if any, of the Notes;
(11) that, unless the Company defaults in making payment
of such Change in Control Purchase Price, interest on Notes surrendered for
purchase by the Company will cease to accrue on and after the Change in Control
Purchase Date; and
(12) the CUSIP numbers of the Notes.
In the event the Company has elected to pay the Change in Control
Purchase Price with shares of Common Stock, the Change in Control Notice shall:
(1) state that the Company will pay the Change in Control
Purchase Price with shares of Common Stock;
(2) set forth the method of calculating the number of
shares of Common Stock to be paid; and
32
(3) state that because the Market Price of shares of
Common Stock will be determined prior to the Change in Control Purchase Date,
Holders will bear the market risk with respect to the value of the shares of
Common Stock to be received from the date such Market Price is determined to the
Change in Control Purchase Date.
Simultaneously with the delivery of the Change in Control Notice to
Holders, the Company shall, or, if the Company has requested that Trustee
deliver the Company Notice to Holders pursuant to Section 3.10(a), shall cause
the Trustee to, at the Company's expense and in the Company's name, disseminate
a press release through any of Dow Jones & Company, Inc., Business Wire,
Bloomberg Business News or Reuters (or if such organizations are not in
existence at the time of issuance of such press release, such other news or
press organization as is reasonably calculated to broadly disseminate the
relevant information to the public) containing this information, and the Company
shall publish the information on the Company's Web site on the World Wide Web or
through such other public medium as the Company may use at that time.
(c) A Holder may exercise its rights specified in Section 3.10(a)
upon delivery of an irrevocable written notice of purchase (a "Change in Control
Purchase Notice") to the Paying Agent at any time on or prior to the 30th day
after the Company delivers its Change in Control Notice, stating:
(1) the certificate number of the Note which the Holder
will deliver to be purchased;
(2) the portion of the principal amount of the Note which
the Holder will deliver to be purchased, which portion must be $1,000 or an
integral multiple thereof; and
(3) that such Note shall be purchased pursuant to the
terms and conditions specified in this Section 3.10.
The delivery of such Note to the Paying Agent with the Change in
Control Purchase Notice (together with all necessary endorsements) at the
offices of the Paying Agent shall be a condition to the receipt by the Holder of
the Change in Control Purchase Price therefor; provided, however, that such
Change in Control Purchase Price shall be so paid pursuant to this Section 3.10
only if the Note so delivered to the Paying Agent shall conform in all respects
to the description thereof set forth in the related Change in Control Purchase
Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.10, a portion of a Note if the principal amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Note also apply to the purchase of such
portion of such Note. Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.10 shall be consummated by the delivery of the
consideration to be received by the Holder on the Change in Control Purchase
Date.
(d) All shares of Common Stock delivered upon purchase of the
Notes shall be newly issued shares or treasury shares, shall be duly authorized,
validly issued, fully paid and nonassessable, and shall be free from preemptive
rights and free of any lien or adverse claim.
(e) The Company shall deposit cash (in respect of a cash purchases
under Section 3.10 or for fractional shares of Common Stock, as applicable) or
shares of Common Stock, or a combination thereof, as applicable, at the time and
in the manner as provided in Section 3.12, sufficient to pay the aggregate
Change in Control Purchase Price of all Notes to be purchased pursuant to this
Section 3.10. As soon as practicable after the Change in Control Purchase Date,
the Company shall deliver to each Holder entitled
33
to receive shares of Common Stock through the Paying Agent a certificate for the
number of full shares of Common Stock issuable in payment of the Change in
Control Purchase Price and cash in lieu of any fractional shares. The person in
whose name the certificate for shares of Common Stock is registered shall be
treated as a holder of record of Common Stock on the Business Day following the
Change in Control Purchase Date. No payment or adjustment will be made for
dividends on the shares of Common Stock the record date for which occurred on or
prior to the Change in Control Purchase Date.
Section 3.11 Effect of Purchase Notice or Change in Control Purchase Notice.
Upon receipt by the Paying Agent of the Purchase Notice specified in
Section 3.09(a) or Change in Control Purchase Notice specified in Section
3.10(c), as applicable, the Holder of the Note in respect of which such Purchase
Notice or Change in Control Purchase Notice, as the case may be, was given shall
(unless, in the case of the Purchase Notice, such Purchase Notice is withdrawn
as specified in the following two paragraphs) thereafter be entitled to receive
solely the Purchase Price or Change in Control Purchase Price, as the case may
be, with respect to such Note. Such Purchase Price or Change in Control Purchase
Price shall be paid to such Holder, subject to receipts of funds and/or
securities by the Paying Agent, promptly following the later of (x) the Purchase
Date or the Change in Control Purchase Date, as the case may be, with respect to
such Note (provided the conditions in Section 3.09(a) or Section 3.10(c), as
applicable, have been satisfied) and (y) the time of delivery of such Note to
the Paying Agent by the Holder thereof in the manner required by Section 3.09(a)
or Section 3.10(c), as applicable. If the Paying Agent holds money or securities
sufficient to pay the Purchase Price or Change in Control Purchase Price of the
Notes on the Business Day following the Purchase Date or Change in Control
Purchase Date, then:
(1) the Notes will cease to be outstanding;
(2) interest (and Liquidated Damages, if any) will cease to accrue; and
(3) all other rights of the Holder of the Notes will terminate.
This will be the case whether or not book-entry transfer of the Notes is made or
whether or not the Notes are delivered to the Paying Agent.
Notes in respect of which a Purchase Notice or Change in Control
Purchase Notice has been given by the Holder thereof may not be converted
pursuant to the provisions hereof on or after the date of the delivery of such
Purchase Notice or Change in Control Purchase Notice, unless, in the case of the
Purchase Notice, such Purchase Notice has first been validly withdrawn as
specified in the following two paragraphs.
A Purchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent in accordance with the
Purchase Notice at any time prior to the close of business on the last Business
Day prior to the Purchase Date, specifying:
(1) the certificate number, if any, of the Note in
respect of which such notice of withdrawal is being submitted,
(2) the principal amount of the Note with respect to
which such notice of withdrawal is being submitted, and
(3) the principal amount, if any, of such Note which
remains subject to the original Purchase Notice, and which has been or
will be delivered for purchase by the Company.
34
A written notice of withdrawal of a Purchase Notice may be in the form
set forth in the preceding paragraph or may be in the form of (i) a conditional
withdrawal contained in a Purchase Notice pursuant to the terms of Section
3.09(a)(1)(d) or (ii) a conditional withdrawal containing the information set
forth in Section 3.09(a)(1)(d) and the preceding paragraph and contained in a
written notice of withdrawal delivered to the Paying Agent as set forth in the
preceding paragraph.
There shall be no purchase of any Notes pursuant to Section 3.09 or
3.10 if there has occurred (prior to, on or after, as the case may be, the
giving, by the Holders of such Notes, of the required Purchase Notice or Change
in Control Purchase Notice, as the case may be) and is continuing an Event of
Default (other than a default in the payment of the Purchase Price or Change in
Control Purchase Price, as the case may be, with respect to such Notes). The
Paying Agent will promptly return to the respective Holders thereof any Notes
(x) with respect to which a Purchase Notice has been withdrawn in compliance
with this Indenture, or (y) held by it during the continuance of an Event of
Default (other than a default in the payment of the Purchase Price or Change in
Control Purchase Price, as the case may be, with respect to such Notes) in which
case, upon such return, the Purchase Notice or Change in Control Purchase Notice
with respect thereto shall be deemed to have been withdrawn.
Section 3.12 Deposit of Purchase Price or Change in Control Purchase Price.
Prior to 10:00 a.m. (local time in the City of New York) on the
Purchase Date or the Change in Control Purchase Date, as the case may be, the
Company shall deposit with the Trustee or with the Paying Agent (or, if the
Company or a Subsidiary or an Affiliate of either of them is acting as the
Paying Agent, shall segregate and hold in trust as provided in the Indenture) an
amount of cash (in immediately available funds if deposited on such Business
Day) or Common Stock, if permitted hereunder, sufficient to pay the aggregate
Purchase Price or Change in Control Purchase Price, as the case may be, of all
the Notes or portions thereof which are to be purchased as of the Purchase Date
or Change in Control Purchase Date, as the case may be.
Section 3.13 Notes Purchased in Part.
Any certificated Note which is to be purchased only in part shall be
surrendered at the office of the Paying Agent (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 such Holder's attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Note, without service charge, a new Note or Notes, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to,
and in exchange for, the portion of the principal amount of the Note so
surrendered which is not purchased.
Section 3.14 Covenant to Comply With Securities Laws Upon Purchase of Notes.
When complying with the provisions of Section 3.09 or 3.10 hereof
(provided that such offer or purchase constitutes an "issuer tender offer" for
purposes of Rule 13e-4 (which term, as used herein, includes any successor
provision thereto) under the Exchange Act at the time of such offer or
purchase), the Company shall (i) comply with Rule 13e-4 and Rule 14e-1 (or any
successor provision) under the Exchange Act, (ii) file the related Schedule TO
(or any successor schedule, form or report) under the Exchange Act, and (iii)
otherwise comply with all Federal and state securities laws so as to permit the
rights and obligations under Sections 3.09 and 3.10 to be exercised in the time
and in the manner specified in Sections 3.09 and 3.10.
35
Section 3.15 Repayment to the Company.
The Trustee and the Paying Agent shall return to the Company any cash
or shares of Common Stock that remain unclaimed, together with interest or
dividends, if any, thereon held by them for the payment of the Purchase Price or
Change in Control Purchase Price, as the case may be; provided, however, that to
the extent that the aggregate amount of cash or shares of Common Stock deposited
by the Company pursuant to Section 3.12 exceeds the aggregate Purchase Price or
Change in Control Purchase Price, as the case may be, of the Notes or portions
thereof which the Company is obligated to purchase as of the Purchase Date or
Change in Control Purchase Date, as the case may be, then, unless otherwise
agreed in writing with the Company, promptly after the Business Day following
the Purchase Date or Change in Control Purchase Date, as the case may be, the
Trustee shall return any such excess to the Company together with interest or
dividends, if any, thereon. Prior to such return, any such excess funds held by
the Paying Agent shall be invested in cash or Permitted Investments as may be
directed by the Company from time to time.
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and interest shall be considered paid on the
date due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest then due.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
Section 4.02 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
fails to maintain any such required office or agency or fails to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
36
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.03
hereof.
Section 4.03 Reports.
(a) Whether or not required by the SEC's rules and regulations, so
long as any Notes are outstanding, the Company shall furnish to the Trustee and
the Holders of Notes, within the time periods specified in the SEC's rules and
regulations:
(1) all quarterly and annual reports that would be
required to be filed with the SEC on Forms 10-Q and 10-K if the Company
were required to file such reports; and
(2) all current reports that would be required to be
filed with the SEC on Form 8-K if the Company were required to file
such reports.
(b) All such reports shall be prepared in all material respects in
accordance with all of the rules and regulations applicable to such reports.
Each annual report on Form 10-K shall include a report on the Company's
consolidated financial statements by the Company's certified independent
accountants. In addition, the Company shall file a copy of each of the reports
referred to in clauses (1) and (2) in Section 4.03(a) above with the SEC for
public availability within the time periods specified in the rules and
regulations applicable to such reports (unless the SEC shall not accept such a
filing) and make such information available to securities analysts and
prospective investors upon request.
(c) If, at any time, the Company is no longer subject to the
periodic reporting requirements of the Exchange Act for any reason, the Company
shall nevertheless continue filing the reports specified in Section 4.03(a) with
the SEC within the time periods specified above unless the SEC shall not accept
such a filing. The Company agrees that it shall not take any action for the
purpose of causing the SEC not to accept any such filings. If, notwithstanding
the foregoing, the SEC shall not accept the Company's filings for any reason,
the Company shall post the reports referred to in Section 4.03(a) on its website
within the time periods that would apply if the Company were required to file
those reports with the SEC.
(d) If the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by Section 4.03(a) shall include a reasonably detailed presentation,
either on the face of the financial statements or in the footnotes thereto, and
in Management's Discussion and Analysis of Financial Condition and Results of
Operations, of the financial condition and results of operations of the Company
and its Restricted Subsidiaries separate from the financial condition and
results of operations of the Unrestricted Subsidiaries of the Company.
(e) In addition, the Company agrees that, for so long as any Notes
remain outstanding, at any time it is not required to file the reports required
by Section 4.03(a) with the SEC, it shall furnish to the Holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
Section 4.04 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year, an Officer's Certificate prescribed by the TIA
stating that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture, and
further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge the Company has kept, observed, performed and
fulfilled each and
37
every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default has occurred, describing all
such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or proposes to take with respect thereto) and
that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) So long as any of the Notes are outstanding, the Company shall
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officer's Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
Section 4.05 Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders of the Notes.
Section 4.06 Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 4.07 [Reserved.]
Section 4.08 [Reserved.]
Section 4.09 [Reserved.]
Section 4.10 [Reserved.]
Section 4.11 [Reserved.]
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Section 4.12 Liens.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, incur any Lien upon any of its
properties or assets (including Capital Stock), whether owned at the date of
issuance of the Notes or thereafter acquired, in each case to secure
Indebtedness of the Company or any Restricted Subsidiary, without effectively
providing that the Notes shall be secured equally and ratably with (or prior to)
that Indebtedness, so long as that Indebtedness shall be so secured.
This restriction on Liens will not, however, apply to:
(1) Liens:
(a) on assets or property incurred by the
Company or any of its Restricted Subsidiaries to secure Indebtedness
Incurred by the Company or such Restricted Subsidiary to finance the
exploration, drilling, development, construction or purchase of or by,
or repairs, improvements or additions to, property or assets of the
Company or such Restricted Subsidiary, as the case may be, which Liens
may include Liens on the Capital Stock of such Restricted Subsidiary or
(b) incurred by any Restricted Subsidiary that
does not own, directly or indirectly, at the time of such original
incurrence of such Lien under this clause (1)(b) any operating
properties or assets securing Indebtedness Incurred to finance the
exploration, drilling, development, construction or purchase of or by
or repairs, improvements or additions to, property or assets of any
Restricted Subsidiary that does not, directly or indirectly, own any
operating properties or assets at the time of such original incurrence
of such Lien, which Liens contemplated by this clause (1)(b) may
include Liens on the Capital Stock of one or more Restricted
Subsidiaries that do not, directly or indirectly, own any operating
properties or assets at the time of such original incurrence of such
Lien, provided, however, that the Indebtedness secured by any such Lien
may not be issued more than 365 days after the later of the
exploration, drilling, development, completion of construction,
purchase, repair, improvement, addition or commencement of full
commercial operation of the property or assets being so financed;
(2) Liens existing on the date of issuance of the Notes,
other than Liens relating to Indebtedness or other obligations being
repaid or Liens that are otherwise extinguished with the proceeds of
the Notes;
(3) Liens on property, assets or shares of stock of a
Person at the time that Person becomes a Subsidiary of the Company;
provided, however, that any such Lien may not extend to any other
property or assets owned by the Company or any of its Restricted
Subsidiaries;
(4) Liens on property or assets existing at the time that
the Company or one of its Subsidiaries acquires the property or asset,
including any acquisition by means of a merger or consolidation with or
into the Company or one of its Subsidiaries; provided, however, that
such Liens are not incurred in connection with, or in contemplation of,
that merger or consolidation; and provided, further, that the Lien may
not extend to any other property or asset owned by the Company or any
of its Restricted Subsidiaries;
(5) Liens securing Indebtedness or other obligations of
one of the Company's Subsidiaries that is owing to the Company or any
of its Restricted Subsidiaries, or Liens securing the Indebtedness or
other Obligations of the Company that are owing to one of the Company's
Subsidiaries;
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(6) Liens incurred on assets that are the subject of a
Capitalized Lease Obligation to which the Company or any of its
Subsidiaries is a party, which shall include Liens on the stock or
other ownership interest in one or more of the Company's Restricted
Subsidiaries leasing such assets;
(7) Liens to secure any refinancing, refunding,
extension, renewal or replacement (or successive refinancings,
refundings, extensions, renewals or replacements) as a whole, or in
part, of any Indebtedness secured by any Lien referred to in clauses
(1), (2), (3), (4) or (6) above; provided, however, that (a) such new
Lien shall be limited to all or part of the same property or assets
that secured the original Lien (plus repairs, improvements or additions
to such property or assets and Liens on the stock or other ownership
interest in one or more Restricted Subsidiaries beneficially owning
that property or assets) and (b) the amount of Indebtedness secured by
such Lien at such time (or, if the amount that may be realized in
respect of such Lien is limited, by contract or otherwise, such limited
lesser amount) is not increased, other than by an amount necessary to
pay fees and expenses, including premiums, related to the refinancing,
refunding, extension, renewal or replacement of such Indebtedness; and
(8) Liens by which the Notes are secured equally and
ratably with other Indebtedness pursuant to this Section 4.12;
provided, however, the Company or any of its Restricted Subsidiaries may incur
other Liens to secure Indebtedness as long as the sum of:
(x) the lesser of:
(a) the amount of outstanding Indebtedness
secured by Liens Incurred pursuant to this proviso (or, if the amount
that may be realized in respect of such Lien is limited, by contract or
otherwise, such limited lesser amount) and
(b) the fair value (as determined by the
Company's Board of Directors) of the property securing that item of
Indebtedness, plus
(y) the Attributable Debt with respect to all Sale and
Leaseback Transactions entered into pursuant to the proviso in
Section 4.16
does not exceed 15% of Consolidated Net Tangible Assets as determined based on
the consolidated balance sheet of the Company as of the end of the most recent
fiscal quarter for which financial statements are available.
Section 4.13 [Reserved.]
Section 4.14 Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect:
(1) its corporate existence, and the corporate,
partnership or other existence of each of its Subsidiaries, in
accordance with the respective organizational documents (as the same
may be amended from time to time) of the Company or any such
Subsidiary; and
40
(2) the rights (charter and statutory), licenses and
franchises of the Company and its Subsidiaries; provided, however, that
the Company shall not be required to preserve any such right, license
or franchise, or the corporate, partnership or other existence of any
of its Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries, taken as a whole, and
that the loss thereof is not adverse in any material respect to the
Holders of the Notes.
Section 4.15 [Reserved.]
Section 4.16 Limitation on Sale and Leaseback Transactions.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any Sale and Leaseback Transaction unless:
(1) the Company or such Restricted Subsidiary would be
entitled to create a Lien on the property or asset subject to the Sale
and Leaseback Transaction securing Indebtedness in an amount equal to
the Attributable Debt with respect to such transaction without equally
and ratably securing the Notes pursuant to Section 4.12 hereof; or
(2) the net proceeds of the sale are at least equal to
the fair value (as determined by the Board of Directors) of the
property or asset subject to the Sale and Leaseback Transaction and the
Company, or the Restricted Subsidiary, applies or causes to be applied,
within 180 days of the effective date of the Sale and Leaseback
Transaction, an amount in cash equal to the net proceeds of the sale to
the retirement of Indebtedness of the Company, or any Restricted
Subsidiary;
provided, however, in addition to the transactions permitted pursuant to the
clauses (1) and (2) above, the Company or any of its Restricted Subsidiaries may
enter into a Sale and Leaseback Transaction as long as the sum of:
(x) the Attributable Debt with respect to such Sale and
Leaseback Transaction and all other Sale and Leaseback Transactions
entered into pursuant to this proviso, plus
(y) the amount of outstanding Indebtedness secured by Liens
Incurred pursuant to the final proviso of Section 4.12 hereof,
does not exceed 15% of Consolidated Net Tangible Assets as determined based on
the consolidated balance sheet of the Company as of the end of the most recent
fiscal quarter for which financial statements are available. In addition, any
Restricted Subsidiary may enter into a Sale and Leaseback Transaction with
respect to property or assets owned by that Restricted Subsidiary so long as the
proceeds of that Sale and Leaseback Transaction are used to explore, drill,
develop, construct, purchase, repair, improve or add to property or assets of
any Restricted Subsidiary, or to repay (within 365 days of the commencement of
full commercial operation of any such property or assets) Indebtedness Incurred
to explore, drill, develop, construct, purchase, repair, improve or add to
property or assets of any Restricted Subsidiary.
Section 4.17 [Reserved.]
Section 4.18 [Reserved.]
Section 4.19 [Reserved.]
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Section 4.20 [Reserved.]
Section 4.21 Issuance of Additional Notes.
Upon each exercise of the Initial Purchaser Option, in whole or in
part, during the Exercise Period in accordance with the Purchase Agreement, the
Company shall cause to be issued and authenticated, in accordance with the terms
of the Purchase Agreement and Section 2.02 hereof, Additional Notes in such
principal amount as has been exercised under the Initial Purchaser Option;
provided, however, that in no case shall the aggregate principal amount of
Additional Notes issued upon all exercises of the Initial Purchaser Option
exceed $300.0 million.
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
The Company may not consolidate with or merge with or into any other
Person or sell, assign, convey, transfer, or otherwise dispose of all or
substantially all of its properties and assets as an entirety to any Person
unless:
(1) the Company is the surviving corporation; or
(2) the Person formed by the consolidation or into which
the Company is merged or the Person to which its properties and assets
are so sold, assigned, conveyed, transferred, leased or otherwise
disposed of, shall be a corporation organized and existing under the
laws of the United States, any state within the United States or the
District of Columbia and shall expressly assume, in a form reasonably
satisfactory to the Trustee, all of the Company's obligations under
this Indenture and the Notes; and
(3) immediately after giving effect to the transaction,
no Event of Default with respect to the Notes will have occurred and be
continuing;
In addition, the Company may not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person.
Notwithstanding the foregoing:
(1) the Company may merge with an Affiliate solely for
the purpose of reincorporating the Company in another jurisdiction; and
(2) the Company and its Restricted Subsidiaries may sell,
assign, transfer, lease, convey or otherwise dispose of assets between
or among each other (including by way of merger),
and, in each case, no violation of this Section shall be deemed to have
occurred as a consequence thereof.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in a transaction that is subject to, and
42
that complies with the provisions of, Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "Company" shall
refer instead to the successor corporation and not to the Company), and may
exercise every right and power of the Company under this Indenture with the same
effect as if such successor Person had been named as the Company herein;
provided, however, that the predecessor Company shall not be relieved from the
obligation to pay the principal of and interest on the Notes except in the case
of a sale of all of the Company's assets in a transaction that is subject to,
and that complies with the provisions of, Section 5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Each of the following is an "Event of Default":
(1) default for 30 days in payment of any interest
installment due and payable on the Notes;
(2) default in payment of principal of the Notes and
accrued interest at maturity;
(3) default in payment of the Purchase Price, when the
same becomes due and payable
(4) default in payment of the Change in Control Purchase
Price, when the same becomes due and payable;
(5) material default in the performance of any other
covenants or agreements in the Notes or this Indenture which default
continues for 30 days after the date on which written notice of such
default is given to the Company by the Trustee or to the Company and
Trustee by the Holders of at least 25% in principal amount of the then
outstanding Notes;
(6) default by the Company under any instrument or
instruments under which there is or may be secured or evidenced any of
the Indebtedness of the Company (other than the Notes) having an
outstanding principal amount of $50,000,000 (or its equivalent in any
other currency or currencies) or more, individually or in the
aggregate, that has caused the holders thereof to declare such
indebtedness to be due and payable prior to its Stated Maturity, unless
such declaration has been rescinded within 30 days;
(7) default by the Company in the payment of the
principal of any bond, debenture, note or other evidence of the
Company's Indebtedness, in each case for money borrowed, or in the
payment of principal under any mortgage, indenture, agreement or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness of the Company for money
borrowed, which default for payment of principal is individually or in
an aggregate principal amount exceeding $50,000,000 (or its equivalent
in any other currency or currencies) when such indebtedness becomes due
and payable (whether at maturity, upon redemption or acceleration or
otherwise), if such default shall continue unremedied or unwaived for
more than 30 days after the expiration of any grace period or extension
of the time for payment applicable thereto; and
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(8) the Company, pursuant to or within the meaning of any
Bankruptcy Law:
(a) commences a voluntary case;
(b) consents to the entry of an order for relief
against it in an involuntary case;
(c) consents to the appointment of a custodian
of it or for all or substantially all of its property;
(d) makes a general assignment for the benefit
of its creditors; or
(e) admits in writing its inability to generally
pay its debts as such debts become due; and
(9) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against the Company in an
involuntary case;
(b) appoints a custodian of the Company or for
all or substantially all of its property; or
(c) orders the winding up or liquidation of the
Company;
and the order or decree remains unstayed and in effect for 60
consecutive days.
The Company shall give the Trustee, within 30 days after the occurrence
thereof, written notice of any event which with the giving of notice or lapse of
time or both would become an Event of Default described in clauses (5), (6) or
(7) of this Section 6.01.
Section 6.02 Acceleration.
(a) In the case of an Event of Default specified in clauses (8) or
(9) of Section 6.01 hereof, the issue price plus accrued and unpaid interest
(and Liquidated Damages, if any) on the Notes will become immediately due and
payable without any action on the part of the Trustee or any Holder.
(b) If any other Event of Default occurs and is continuing with
respect to the Notes, either the Trustee, by Notice to the Company, or the
registered Holders of at least 25% in aggregate principal amount of the Notes,
by notice to the Company and the Trustee, may declare the issue price plus
accrued and unpaid interest (and Liquidated Damages, if any) on the Notes to be
due and payable immediately.
At any time after a declaration of acceleration, but before a judgment
or decree for payment of money has been obtained, if all Events of Default with
respect to the Notes have been cured or waived (other than the nonpayment of the
issue price or accrued and unpaid interest (and Liquidated Damages, if any) on
the Notes which has become due solely by reason of the declaration of
acceleration), then the declaration of acceleration shall be automatically
annulled and rescinded.
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Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium, if any, and
interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes by notice to the Trustee may on behalf of the Holders
of all of the Notes waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, or interest on, the Notes
(including in connection with an offer to purchase); provided, however, that the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
Section 6.05 Control by Majority.
Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability; provided that the Trustee may take any other
lawful action deemed proper by the Trustee that is not inconsistent with such
direction.
Section 6.06 Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this Indenture
or the Notes only if:
(1) the Holder of a Note gives to the Trustee written
notice of a continuing Event of Default;
(2) the Holders of at least 25% in principal amount of
the then outstanding Notes make a written request to the Trustee to
pursue the remedy;
(3) such Holder of a Note or Holders of Notes offer and,
if requested, provide to the Trustee indemnity satisfactory to the
Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within
60 days after receipt of the request and the offer and, if requested,
the provision of indemnity; and
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(5) during such 60-day period, the Holders of a majority
in principal amount of the then outstanding Notes do not give the
Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium, if any, and interest
on the Note, on or after the respective due dates expressed in the Note
(including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of, premium, if any, and interest remaining unpaid on the Notes and
interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
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Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee
and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any and interest,
respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of
a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee shall be determined solely
by the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture.
47
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of
paragraph (b) of this Section 7.01;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
conclusively determined by a court of competent jurisdiction that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders, unless such Holder has offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon 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.
(b) Before the Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officer's Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
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(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders unless such Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
(g) In no event shall the Trustee be required to take notice of
any default or breach hereof or any Event of Default hereunder, except for
Events of Default specified in Section 6.01(1) and/or 6.01(2) hereof, unless and
until the Trustee shall have received from a Holder of a Note or from the
Company express written notice of the circumstances constituting the breach,
default or Event of Default and stating that said circumstances constitute an
Event of Default hereunder.
(h) If the Trustee is acting as Conversion Agent, Paying Agent
and/or Registrar hereunder, the rights and protections afforded to the Trustee
pursuant to this Article 7 will also be afforded to such Conversion Agent,
Paying Agent and Registrar.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days after ascertaining it
has such conflicting interest, apply to the SEC for permission to continue as
trustee or resign to the extent and in the manner provided by, and subject to
the provisions of, the TIA and this Indenture. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Notes a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any, or
interest on any Note, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.
Section 7.06 Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if no
event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be
49
transmitted). The Trustee also shall comply with TIA Section 313(b)(2) to the
extent applicable. The Trustee shall also transmit by mail all reports as
required by TIA Section 313(c).
(b) A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed by the Trustee to the Company and filed by the
Trustee with the SEC and each stock exchange on which the Notes are listed in
accordance with TIA Section 313(d). The Company shall promptly notify the
Trustee when the Notes are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Indenture,
including the costs and expenses of enforcing this Indenture (and any other Note
Documents to which it is a party) against the Company (including this Section
7.07) and defending itself against any claim (whether asserted by the Company,
or any Holder or any other Person) or liability in connection with the exercise
or performance of any of its powers or duties hereunder, except to the extent
any such loss, liability or expense may be attributable to its negligence or bad
faith. The Trustee shall notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend the
claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
(c) The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
(d) To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a Lien prior to the Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(8) or (9) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of a majority in principal amount of the then
50
outstanding Notes may remove the Trustee by so notifying the Trustee and the
Company in writing. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or
an order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a custodian or public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
(d) If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has
been a Holder for at least six months, fails to comply with Section 7.10, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(f) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, provided all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in Section
7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
Section 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section. 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
51
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officer's Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company will, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from their obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in clauses (1) and (2) below, and to have satisfied all their other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive
payments in respect of the principal of, or interest or premium, if
any, on such Notes when such payments are due from the trust referred
to in Section 8.04 hereof;
(2) the Company's obligations with respect to such Notes
under Article 2 and Section 4.02 hereof;
(3) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and the Company's obligations in connection
therewith; and
(4) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its
option under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company (to the extent applicable) shall,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be released from each of their obligations under the covenants contained in
Sections 4.12 and 4.16 hereof with respect to the outstanding Notes on and after
the date the conditions set forth in Section 8.04 hereof are satisfied
(hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be
52
deemed not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 6.01 hereof, but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
thereby. In addition, upon the Company's exercise under Section 8.01 hereof of
the option applicable to this Section 8.03 hereof, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, Sections 6.01(3) through
6.01(7) hereof shall not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance
under either Section 8.02 or 8.03 hereof:
(1) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, cash in United
States dollars, non-callable Government Securities, or a combination
thereof, in such amounts as shall be sufficient, in the opinion of a
nationally recognized investment bank, appraisal firm or firm of
independent public accountants, to pay the principal of, premium, if
any, and interest on the outstanding Notes on the stated date for
payment thereof or on the applicable redemption date, as the case may
be, and the Company must specify whether such Notes are being defeased
to maturity or to a particular redemption date;
(2) in the case of an election under Section 8.02 hereof,
the Company has delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that:
(A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling; or
(B) since the date of this Indenture, there has
been a change in the applicable federal income tax law,
in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the
outstanding Notes shall not recognize income, gain or loss for
federal income tax purposes as a result of such Legal
Defeasance and shall be subject to federal income tax on the
same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not
occurred;
(3) in the case of an election under Section 8.03 hereof,
the Company must deliver to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Notes shall not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant
Defeasance and shall be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;
53
(4) no Default or Event of Default shall have occurred
and be continuing on the date of such deposit (other than a Default or
Event of Default resulting from the borrowing of funds to be applied to
such deposit);
(5) such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a default under,
any material agreement or instrument (other than this Indenture) to
which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(6) the Company must deliver to the Trustee an Officer's
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over the other creditors
of the Company with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company or others; and
(7) the Company must deliver to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, but
such money need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof 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 the outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the Trustee
shall deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized
investment bank, appraisal firm or firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (which may
be the opinion delivered under Section 8.04(1) hereof), are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to the Company.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Note and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter be
permitted to look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money,
54
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
shall be repaid to the Company.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided, however, that, if the Company makes any
payment of principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture or the Notes without the consent
of any Holder of a Note:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to provide for the assumption of the Company's
Obligations under this Indenture by a successor upon any merger,
consolidation or asset transfer permitted under this Indenture;
(3) to provide for uncertificated Notes in addition to or
in place of certificated Notes or to provide for bearer Notes;
(4) to comply with any requirement to effect or maintain
the qualification of the indenture under the TIA;
(5) to provide for the issuance of Additional Notes in
accordance with the limitations set forth in Section 4.21;
(6) to conform the text of the Indenture or the Notes to
any provisions of the Description of the Notes section of the Offering
Circular to the extent that such provision of the Description of the
Notes section of the Offering Circular was intended to be a verbatim
recitation of a provision of the Indenture or the Notes;
(7) to add covenants that would benefit the Holders of
Notes or to surrender any rights the Company has under this Indenture;
or
55
(8) to make any change that does not adversely affect the
rights of any Holder of the Notes, including, without limitation,
changing any payment record dates as necessary to conform to the then
current market practice.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company in the execution of any
amended or supplemental Indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company and the
Trustee may amend or supplement this Indenture and the Notes with the consent of
the Holders of at least a majority in principal amount of the Notes (including,
without limitation, Additional Notes, if any) then outstanding voting as a
single class (including, without limitation, consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Notes), and,
subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (other than a Default or Event of Default in the payment of the
principal of, premium, if any, or interest on the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture or the Notes may be waived with the consent
of the Holders of a majority in principal amount of the then outstanding Notes
voting as a single class (including consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Notes).
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.02 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture directly affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter into
such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it is sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding voting as a single class may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes.
However, without the consent of each Holder affected, an amendment or waiver
under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(1) reduce the amount of Notes whose Holders must consent
to an amendment, supplement or waiver;
56
(2) reduce the rate of interest or change the time for
payment of interest on the Notes;
(3) reduce the issue price or change the stated maturity
of the Notes;
(4) make any change in any repurchase right to the
detriment of such Holder;
(5) make any change in any conversion right to the
detriment of such Holder;
(6) make payments on the Notes payable in currency or
consideration other than as originally stated in the Notes;
(7) make any change in Section 6.07 hereof;
(8) make any change in Section 6.04 hereof or in the
foregoing amendment and waiver provisions; or
(9) waive a continuing default or Event of Default
regarding any payment on the Notes.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in a amended or supplemental Indenture that complies with the
TIA as then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment or supplemental Indenture until the Board of Directors
approves it. In executing any amended or supplemental indenture, the Trustee
shall be entitled
57
to receive and (subject to Section 7.01 and 7.02 hereof) shall be fully
protected in relying upon, in addition to the documents required by Section
13.04 hereof, an Officer's Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental Indenture is authorized or
permitted by this Indenture.
ARTICLE 10.
CONVERSION
Section 10.01 Conversion Privilege.
(a) Subject to the provisions of this Article 10, a Holder of a
Note may convert such Note into cash and Common Stock equal to the Conversion
Value (as defined below) in accordance with Section 10.14, if any of the
following conditions are satisfied:
(1) during any calendar quarter (the "Quarter")
commencing after the date of issuance of the Notes, if the Common Stock
Price for at least 20 Trading Days in the period of 30 consecutive
Trading Days ending on the last Trading Day of the Quarter immediately
preceding the Quarter in which the conversion occurs (appropriately
adjusted to take into account the occurrence, during such 30
consecutive Trading Day period, of any event requiring adjustment of
the Conversion Price under this Indenture) is more than 120% of the
Conversion Price on such 30th Trading Day;
(2) the Note has been called for redemption by the
Company pursuant to Section 3.07 and the redemption has not yet
occurred, so long as the Holder surrenders such Note prior to the close
of business on the date that is two Business Days prior to the
applicable redemption date, even if the Note is not otherwise
exchangeable at such time;
(3) (A) the conversion of such Note occurs during the
five Trading Day period immediately after a period of five consecutive
Trading Days in which the Trading Price for each such Trading Day in
such period was less than 95% of the product of (x) the Common Stock
Price on such Trading Day multiplied by (y) the Conversion Rate on such
Trading Day.
(B) Notwithstanding the foregoing, if on the
date of any conversion pursuant to Section 10.01(a)(3)(A), the Common
Stock Price on such date is greater than the Conversion Price on such
date but less than 120% of the Conversion Price on such date, then the
Conversion Value a Holder of Notes will be entitled to receive will be
equal to the principal amount of the Notes held by such Holder plus
accrued and unpaid interest (and Liquidated Damages, if any) as of the
Conversion Date (such a conversion, a "Principal Value Conversion") and
the number of Net Shares (and any cash in lieu of fractional shares) to
be delivered upon a Principal Value Conversion will be determined in
accordance with Section 10.14; and provided further that, in place of
the Five Day Average Closing Stock Price, such number of Net Shares
will be calculated using an amount equal to the greater of (i) the
Conversion Price on the Conversion Date and (ii) the Common Stock Price
on the Conversion Date;
(4) (i) a distribution to all or substantially all
holders of Common Stock of rights, warrants or options to subscribe for
or purchase, for a period expiring less than 60 days after such
distribution, shares of Common Stock at a price less than the Common
Stock Price on the Trading Day immediately preceding the date of
declaration of such distribution or (ii) a distribution to all or
substantially all holders of Common Stock evidences of Company
indebtedness, rights or warrants to purchase or subscribe for Capital
Stock or other securities of the Company, cash or assets, which
distribution has a per share value that exceeds 12.5% of the Common
Stock Price
58
on the Trading Day immediately preceding the declaration date of such
distribution provided that, the Holder shall have no right to convert
any Note pursuant to Section 10.01(c) hereof if the Holder of a Note
otherwise participates in the issuance or distribution described in
this Section 10.01(a)(4) without conversion of such Holder's Notes; or
(5) (i) the Company is party to a consolidation, merger,
share exchange, sale of all or substantially all of its assets or other
similar transaction pursuant to which the Common Stock is subject to
conversion into shares of stock (other than Common Stock), other
securities or property (including cash) subject to Section 10.11 and
(ii) the conversion of such Note occurs at any time from and after the
date that is 15 days prior to the date of the anticipated effective
time of such transaction until and including the date that is 15 days
after the actual effective date of such transaction; provided that if
such conversion occurs after the effective date of such transaction,
the Holder will receive on conversion the consideration determined in
accordance with Section 10.11.
(b) In the case of Section 10.01(a)(3), the Bid Solicitation Agent
shall have no obligation to determine the Trading Price of the Notes unless the
Company has requested such determination in writing, and the Company shall have
no obligation to make such request unless a Holder of the Notes provides the
Company with reasonable evidence that the Trading Price of the Notes on any date
would be less than 95% of the product of (x) the Common Stock Price on such date
and (y) the Conversion Rate then in effect. Upon receipt of such reasonable
evidence, the Company shall instruct the Bid Solicitation Agent in writing to
determine the Trading Price beginning on the next Trading Day and on each
successive Trading Day until the Trading Price of the Notes is greater than or
equal to 95% of the product of the Common Stock Price and the Conversion Rate.
Neither the Trustee nor the Conversion Agent shall be under any duty or
obligation to make the calculations described in Section 10.01(a)(3) hereof or
to determine whether the Notes are convertible pursuant to such section. The
Company shall make the calculations described in Section 10.01(a)(3) hereof,
using the Trading Price of the Notes provided by the Bid Solicitation Agent and
will advise the Trustee (or Conversion Agent, as the case may be) within a
commercially reasonable time prior to the Conversion Date (and, in any event, no
later than three Business Days prior to the Conversion Date) of any
determination of the Trading Price of the Notes.
(c) In the case of the foregoing Sections 10.01(a)(4)(i) and
10.01(a)(4)(ii), the Company shall cause a notice of such distribution to be
filed with the Trustee and the Conversion Agent and to be mailed to each Holder
of Notes no later than 20 days prior to the Ex-Dividend Date for such
distribution. Once the Company has given such notice, Holders may surrender
their Notes for conversion at any time thereafter until the earlier of the close
of business on the Business Day prior to the Ex-Dividend Date or the Company's
announcement that such distribution will not take place; provided that, the
Holder shall have no right to convert any Note pursuant to this Section 10.01(c)
if the Holder of a Note otherwise participates in the distribution described in
either Section 10.01(a)(4)(i) or 10.01(a)(4)(ii) without conversion of such
Holder's Notes. The "Ex-Dividend Date" for any such distribution means the date
immediately prior to the commencement of "ex-dividend" trading for such
distribution on The New York Stock Exchange or such other national securities
exchange or The Nasdaq Stock Market or similar system of automated dissemination
of quotations of securities prices on which the Common Stock is then listed or
quoted.
(d) A Holder may convert a portion of a Note equal to $1,000 or
any integral multiple thereof. Provisions of this Indenture that apply to
conversion of all of a Note also apply to conversion of a portion of a Note. If
a Note is called for redemption pursuant to Article 3, in order to convert such
Note, the Holder must deliver the Note to the Conversion Agent (or, if the Note
is held in book-entry form, complete and deliver to the Depositary appropriate
instructions in accordance with the Applicable Procedures) at any time prior to
the close of business on the day that is two Business Days prior to the
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applicable redemption date for such Note (unless the Company shall default in
paying the Purchase Price when due, in which case the conversion right shall
terminate on the date such Default is cured and such Note is redeemed). A Note
in respect of which a Holder has delivered a Purchase Notice pursuant to Section
3.09 exercising the option of such Holder to require the Company to repurchase
such Note may be converted only if such Purchase Notice is withdrawn by a
written notice of withdrawal delivered to the Paying Agent prior to the close of
business on the Purchase Date in accordance with Section 3.11. A Note in respect
of which a Holder has delivered a Change in Control Purchase Notice pursuant to
Section 3.10 may not be converted unless such Change in Control Purchase Notice
is deemed withdrawn pursuant to Section 3.11.
(e) A Holder of Notes is not entitled to any rights of a holder of
Common Stock until, and to the extent that, such Holder has converted its Notes
into Common Stock.
Section 10.02 Conversion Procedure.
(a) To convert a Note, a Holder must satisfy the requirements of
this Article 10 and (i) complete and manually sign the irrevocable conversion
notice on the back of the Note and deliver such notice to the Conversion Agent,
(ii) surrender the Note to the Conversion Agent, (iii) furnish appropriate
endorsements and transfer documents if required by the Registrar or the
Conversion Agent, (iv) pay any transfer or other tax, if required by Section
10.03 and/or (v) if the Note is held in book-entry form, complete and deliver to
the Depositary appropriate instructions pursuant to the Applicable Procedures.
The later of (x) the date on which the Holder satisfies all of the foregoing
requirements and (y) the Determination Date is the "Conversion Date." As soon as
practicable after the Conversion Date and in any event within four Business Days
thereof, the Company shall deliver to the Holder through the Conversion Agent
(1) cash in the amount calculated in accordance with Section 10.14 and (2)
either (A) a certificate for or (B) a book-entry notation of the number of whole
shares of Common Stock issuable upon the conversion and cash in lieu of any
fractional shares pursuant to Section 10.14.
(b) The Person in whose name the Note is registered shall be
deemed to be a stockholder of record on the Conversion Date; provided that no
surrender of a Note on any date when the stock transfer books of the Company
shall be closed shall be effective to constitute the Person or Persons entitled
to receive the shares of Common Stock upon such conversion as the record holder
or holders of such shares of Common Stock on such date, but such surrender shall
be effective to constitute the Person or Persons entitled to receive such shares
of Common Stock as the record holder or holders thereof for all purposes at the
close of business on the next succeeding day on which such stock transfer books
are open (subject to the provisions of the next paragraph of this Section
10.02); provided that such conversion shall be at the Conversion Price in effect
on the date that such Note shall have been surrendered for conversion, as if the
stock transfer books of the Company had not been closed. Upon conversion of a
Note, such Person shall no longer be a Holder of such Note.
(c) No payment or adjustment will be made for accrued interest
(including Liquidated Damages, if any), on a converted Note or for dividends or
distributions on shares of Common Stock issued upon conversion of a Note
(provided that the shares of Common Stock received upon conversion of Notes
shall continue to accrue Liquidated Damages, as applicable, in accordance with
the Registration Rights Agreement and shall be entitled to receive, at the next
interest payment date, any accrued but unpaid Liquidated Damages with respect to
the converted Notes), but if any Holder surrenders a Note for conversion between
the record date for the payment of an installment of interest and the next
interest payment date, then, notwithstanding such conversion, the interest
(including Liquidated Damages, if any), payable on such interest payment date
shall be paid to the Holder of such Note on such interest payment date. In such
event, such Note, when surrendered for conversion, must be accompanied by
delivery of a check payable to the Conversion Agent in an amount equal to the
interest (including Liquidated Damages,
60
if any), payable on such interest payment date on the portion so converted. If
such payment does not accompany such Note, the Note shall not be converted;
provided that no such check shall be required if such Note has been called for
redemption on a redemption date within the period between and including such
record date and such interest payment date, or if such Note is surrendered for
conversion on the interest payment date. If the Company defaults in the payment
of interest (including Liquidated Damages, if any), payable on the interest
payment date, the Conversion Agent shall repay such funds to the Holder.
(d) Upon surrender of a Note that is converted in part, the
Company shall execute, and the Trustee shall, upon receipt of an Authentication
Order, authenticate and deliver to the Holder, a new Note equal in principal
amount to the unconverted portion of the Note surrendered.
Section 10.03 Taxes on Conversion.
If a Holder submits a Note for conversion, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on the issue of shares
of Common Stock upon the conversion. However, the Holder shall pay any such tax
which is due because the Holder requests the shares to be issued in a name other
than the Holder's name. The Conversion Agent may refuse to deliver the
certificates representing the shares of Common Stock being issued in a name
other than the Holder's name until the Conversion Agent receives a sum
sufficient to pay any tax which will be due because the shares are to be issued
in a name other than the Holder's name. Nothing herein shall preclude any income
tax withholding required by law or regulations.
Section 10.04 Company to Provide Stock.
The Company has reserved shares of Common Stock to permit delivery of
shares of Common Stock upon conversion of the Notes up to an assumed Five Day
Average Closing Stock Price, and from time to time as may be necessary shall
reserve out of its authorized but unissued shares of Common Stock a sufficient
number of additional shares of Common Stock to permit delivery of shares of
Common Stock upon the conversion of the Notes in full.
All shares of Common Stock delivered upon conversion of the Notes shall
be newly issued shares or treasury shares, shall be duly and validly issued and
fully paid and nonassessable, and shall be free from preemptive rights and free
of any lien or adverse claim. The Company will endeavor promptly to comply with
all federal and state securities laws regulating the offer and delivery of
shares of Common Stock upon conversion of Notes, if any, and will list or cause
to have quoted such shares of Common Stock on each national securities exchange
or in the over-the-counter market or such other market on which the shares of
Common Stock are then listed or quoted.
Section 10.05 Adjustment of Conversion Price.
The conversion price (the "Conversion Price") initially shall be that
price set forth in paragraph 9 of the Notes, but shall be adjusted (without
duplication) from time to time by the Company as follows:
(a) In case the Company shall pay a dividend or make a
distribution on the Common Stock payable exclusively in Common Stock, the
Conversion Rate in effect at the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be increased by multiplying such Conversion
Rate by a fraction of which the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination and the numerator shall be the sum of (i) such number of shares
and (ii)
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or distribution is not so paid or made, the Conversion Price shall be adjusted
the total number of shares constituting such dividend or other distribution,
such increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purposes of
this paragraph (a), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company. 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 occurred.
(b) In case the Company shall pay or make a dividend or other
distribution on its Common Stock consisting exclusively of, or shall otherwise
issue to all holders of its Common Stock, rights, warrants or options, in each
case entitling the holders thereof to subscribe for or purchase shares of Common
Stock at a price per share less than the Market Price per share of the Common
Stock on the date fixed for the determination of stockholders entitled to
receive such rights, warrants or options, the Conversion Rate in effect at the
opening of business on the day following the date fixed for such determination
shall be increased by multiplying such Conversion Rate by a fraction of which
the denominator shall be the sum of (i) the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus (ii) the number of shares of Common Stock which the aggregate of the
offering price of the total number of shares of Common Stock so offered for
subscription or purchase would purchase at such Market Price and the numerator
shall be the sum of (i) the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination plus (ii) the number
of shares of Common Stock so offered for subscription or purchase, such increase
to become effective immediately after the opening of business on the day
following the date fixed for such determination; provided, however, that no
adjustment shall be made if Holders of the Notes may participate in the
transaction on a basis and with notice that the Company's Board of Directors
deems to be fair and appropriate. To the extent that rights are not so issued or
shares of Common Stock are not so delivered after the expiration of such rights,
warrants or options, the Conversion Rate shall be readjusted to the Conversion
Rate which would then be in effect if such date fixed for the determination of
stockholders entitled to receive such rights, warrants or options, had not been
fixed. For the purposes of this paragraph (b), the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury of
the Company.
(c) In case the Company shall declare a cash dividend or
distribution to all or substantially all of the holders of Common Stock, the
Conversion Price shall be decreased so that the Conversion Price shall equal the
price determined by multiplying the Conversion Price in effect immediately prior
to the record date for such dividend or distribution by a fraction,
(i) the numerator of which shall be the average of the
Common Stock Prices for the three consecutive Trading Days ending on
the date immediately preceding the record date for such dividend or
distribution (the "Pre-Dividend Sale Price"), minus the full amount of
such cash dividend or distribution, to the extent payable in cash,
applicable to one share of Common Stock, and
(ii) the denominator of which shall be the Pre-Dividend
Sale Price,
such adjustment to become effective immediately after the record date for such
dividend or distribution; provided, that no adjustment to the Conversion Price
or the ability of a Holder of a Note to convert will be made pursuant to this
Section 10.05(c) if the Company provides that Holders of Notes will participate
in such cash dividend or distribution on an as-converted basis without
conversion; provided further, that if the numerator of the foregoing fraction is
less than $1.00 (including a negative amount), then in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder shall have the
right to receive upon conversion, in addition to the Common Stock issuable upon
such conversion (and any cash in lieu of fractional shares), the amount of cash
such Holder would have received had such Holder converted its Note immediately
prior to the record date for such dividend or distribution. If such dividend
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to the Conversion Price that would then be in effect if such dividend or
distribution had not been declared.
(d) Subject to the last sentence of this paragraph (d), in case
the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock evidences of its indebtedness, shares of any class or series of
Capital Stock, cash or assets (including securities, but excluding any rights,
warrants or options referred to in paragraph (b) of this Section 10.05, any
dividend or distribution paid exclusively in cash and any dividend or
distribution referred to in paragraph (a) of this Section 10.05), the Conversion
Rate shall be increased so that the same shall equal the price determined by
multiplying the Conversion Rate in effect immediately prior to the effectiveness
of the Conversion Rate increase contemplated by this paragraph (d) by a fraction
of which the denominator shall be the Market Price per share of the Common Stock
on the date fixed for the determination of stockholders entitled to receive such
distribution (the "Reference Date") less the Fair Market Value, on the Reference
Date, of the portion of the evidences of indebtedness, shares of capital stock,
cash and/or assets so distributed applicable to one share of Common Stock and
the numerator shall be such Market Price per share of the Common Stock, such
increase to become effective immediately prior to the opening of business on the
day following the Reference Date, provided that if the Fair Market Value of the
portion of the evidences of indebtedness, shares of capital stock, cash and/or
assets so distributed applicable to one share of Common Stock shall be less than
the Market Price per share of Common Stock, no adjustment shall be made; and
provided, further, that no adjustment shall be made if all Holders of Notes are
entitled to participate in such transactions. In the event that such dividend or
distribution is not so paid or made, the Conversion Rate shall again be adjusted
to be the Conversion Rate which would then be in effect if such dividend or
distribution had not occurred. For purposes of this paragraph (d), any dividend
or distribution that includes shares of Common Stock or rights, warrants or
options to subscribe for or purchase shares of Common Stock shall be deemed
instead to be (i) a dividend or distribution of the evidences of indebtedness,
shares of Capital Stock, cash and/or assets other than such shares of Common
Stock or such rights or warrants (making any Conversion Rate increase required
by this paragraph (d)) immediately followed by (ii) a dividend or distribution
of such shares of Common Stock or such rights, warrants or options (making any
further Conversion Rate increase required by paragraph (a) or (b) of this
Section 10.05), except any shares of Common Stock included in such dividend or
distribution shall not be deemed "outstanding at the close of business on the
date fixed for such determination" within the meaning of paragraph (a) of this
Section 10.05.
(e) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Conversion Rate in effect
at the opening of business on the Business Day following the day upon which such
subdivision becomes effective shall be proportionately increased and,
conversely, in case outstanding shares of Common Stock shall each be combined
into a smaller number of shares of Common Stock, the Conversion Rate in effect
at the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately reduced, such increase or
reduction, as the case may be, to become effective immediately after the opening
of business on the Business Day following the day upon which such subdivision or
combination becomes effective.
(f) In case the Company pays to holders of Common Stock in respect
of a tender or exchange offer, other than an odd-lot offer, by the Company or
any of its Subsidiaries for Common Stock to the extent that the offer involves
aggregate consideration that, together with (1) any cash and the Fair Market
Value of any other consideration payable in respect of any tender offer by the
Company or any of its Subsidiaries for shares of Common Stock consummated within
the preceding 12 months not triggering a Conversion Rate adjustment and (2)
all-cash distributions to all or substantially all holders of the Company's
Common Stock made within the preceding 12 months not triggering a Conversion
Rate adjustment, exceeds an amount equal to 12.5% of the market capitalization
of Common Stock on the expiration date of the tender offer, the Conversion Rate
shall be increased so that the same shall equal the
63
price determined by multiplying the Conversion Rate in effect immediately prior
to the effectiveness of the Conversion Rate increase contemplated by this
Section 10.05(f) by a fraction of which the denominator shall be the number of
shares of Common Stock outstanding (including any tendered or exchanged shares)
at the last time tenders of exchanges may be made pursuant to such tender or
exchange offer (the "Expiration Time") multiplied by the Market Price per share
of the Common Stock on the Trading Day next succeeding the Expiration Time and
the numerator shall be the sum of (x) the Fair Market Value (determined as
aforesaid) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange
offer) of all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares") and (y) the product of the number of
shares of Common Stock outstanding (less any Purchased Shares) at the Expiration
Time and the Market Price per share of the Common Stock on the Trading Day next
succeeding the Expiration Time, such increase to become effective immediately
prior to the opening of business on the Business Day following the Expiration
Time.
In any case in which this Section 10.05 shall require that an
adjustment be made immediately following a record date established for purposes
of this Section 10.05, the Company may elect to defer (but only until five
Business Days following the filing by the Company with the Trustee of the
certificate described in Section 10.09) issuing to the holder of any Note
converted after such record date the shares of Common Stock issuable upon such
conversion over and above the shares of Common Stock issuable upon such
conversion only on the basis of the Conversion Price prior to adjustment; and,
in lieu of the shares the issuance of which is so deferred, the Company shall
issue or cause its transfer agents to issue due bills or other appropriate
evidence of the right to receive such shares.
Section 10.06 When No Adjustment Required.
No adjustment of the Conversion Price shall be made:
(a) upon the issuance of any shares of Common Stock pursuant to
any present or future plan providing for the reinvestment of dividends or
interest payable on securities of the Company and the investment of additional
optional amounts in shares of Common Stock under any plan,
(b) upon the issuance of any shares of Common Stock or options or
rights to purchase those shares pursuant to any present or future employee,
director or consultant benefit plan or program of the Company,
(c) upon the issuance of any shares of Common Stock pursuant to
any option, warrant, right or exercisable, exchangeable or convertible security
outstanding as of the date hereof,
(d) upon the issuance of any rights, any distribution of separate
certificates representing the rights, any exercise or redemption of any rights
or any termination or invalidation of the rights, pursuant to the Company's
stockholders rights plan, or
(e) for a change in the par value or no par value of the shares of
Common Stock.
There shall also be no adjustment of the Conversion Rate in case of the
issuance of any Common Stock (or securities convertible into or exchangeable for
Common Stock), except as specifically described above.
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Section 10.07 When Adjustment May Be Deferred.
No adjustment in the Conversion Price need be made unless the
adjustment would require an increase or decrease of at least 1% in the
Conversion Price (other than an adjustment described in Section 10.05(f)). Any
adjustments that are not made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Article 10 shall be made
to the nearest cent, with one-half cent rounded up, or to the nearest 1/1,000th
of a share, with 1/500th of a share being rounded up, as the case may be.
Section 10.08 Successive Adjustments.
After an adjustment to the Conversion Price under this Article 10, any
subsequent event requiring an adjustment under this Article 10 shall cause an
adjustment to the Conversion Rate as so adjusted.
Section 10.09 Notice of Adjustment.
Whenever the Conversion Price is adjusted, the Company shall promptly
mail to Holders of Notes a notice of the adjustment and concurrently file with
the Trustee and the Conversion Agent such notice and a certificate from the
Company's independent public accountants briefly stating the facts requiring the
adjustment and the manner of computing such adjustment. The certificate shall be
conclusive evidence that such adjustment is correct. Neither the Trustee nor any
Conversion Agent shall be under any duty or responsibility with respect to any
such notice and certificate (or the receipt of such notice and certificate or
with the knowledge of any adjustment absent such notice and certificate) except
to exhibit the same to any Holder desiring inspection thereof.
Section 10.10 Notice of Certain Transactions.
The Company shall mail to Holders of Notes and file with the Trustee
and/or the Conversion Agent a notice stating the proposed record date for a
dividend or distribution or the proposed effective date of a subdivision,
combination, reclassification, consolidation, merger, binding share exchange,
transfer, liquidation or dissolution, if any of the following occur:
(a) the Company takes any action that would require an adjustment
in the Conversion Rate pursuant to Section 10.05 (unless no adjustment is to
occur pursuant to Section 10.06); or
(b) the Company takes any action that would require a supplemental
indenture pursuant to Section 10.11; or
(c) there is a liquidation or dissolution of the Company.
The Company shall file and mail such notice at least 15 days before the
applicable date of any such transaction. Failure to file or mail the notice or
any defect in it shall not affect the validity of the transaction.
Section 10.11 Effect of Reclassification, Consolidation, Merger, Share Exchange
or Sale on Conversion Privilege.
If any of the following shall occur: (i) any reclassification or change
of outstanding shares of Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination); (ii) any consolidation, combination, merger or
share exchange to which the Company is a party other than a merger in which the
Company is the
65
continuing corporation and which does not result in any reclassification of, or
change (other than a change in name, or par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination) in, outstanding shares of Common Stock; or (iii) any sale or
conveyance of all or substantially all of the assets of the Company; then the
Company, or such successor or purchasing corporation, as the case may be, shall,
as a condition precedent to such reclassification, change, consolidation,
merger, share exchange, sale or conveyance, execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Note then outstanding
shall have the right to convert such Note into the kind and amount of shares of
Capital Stock and other securities and property (including cash) receivable upon
such reclassification, change, consolidation, merger, share exchange, sale or
conveyance by a holder of the number of shares of Common Stock deliverable upon
conversion of such Note immediately prior to such reclassification, change,
consolidation, merger, share exchange, sale or conveyance. Such supplemental
indenture shall provide for adjustments of the Conversion Price which shall be
as nearly equivalent as may be practicable to the adjustments of the Conversion
Price provided for in this Article 10. If, in the case of any such
consolidation, merger, share exchange, sale or conveyance, the stock or other
securities and property (including cash) receivable thereupon by a holder of
Common Stock includes shares of Capital Stock or other securities and property
of a corporation other than the successor or purchasing corporation, as the case
may be, in such consolidation, merger, share exchange, sale or conveyance, then
such supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the Holders
of the Notes as the Board of Directors of the Company shall reasonably consider
necessary by reason of the foregoing. The provision of this Section 10.11 shall
similarly apply to successive consolidations, mergers, share exchanges, sales or
conveyances. Notwithstanding the foregoing, a distribution by the Company to all
or substantially all holders of its Common Stock for which an adjustment to the
Conversion Price or provision for conversion of the Notes may be made pursuant
to Section 10.05 shall not be deemed to be a sale or conveyance of all or
substantially all of the assets of the Company for purposes of this Section
10.11.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 10.11, the Company shall promptly file with the Trustee
an Opinion of Counsel stating that such supplemental indenture is authorized or
permitted by this Indenture and an Officer's Certificate briefly stating (a) the
reasons therefor, (b) the kind or amount of shares of stock or securities or
property (including cash) receivable by Holders of the Notes upon the conversion
of their Notes after any such reclassification, change, consolidation, merger,
share exchange, sale or conveyance, (c) any adjustment to be made with respect
thereto and (d) that all conditions precedent have been complied with.
Section 10.12 Trustee's Disclaimer.
The Trustee has no duty to determine when an adjustment under this
Article 10 should be made, how it should be made or what such adjustment should
be made, but may accept as conclusive evidence of the correctness thereof, and
shall be protected in relying upon, the Officer's Certificate with respect
thereto, which the Company is obligated to file with the Trustee pursuant to
Section 10.09. The Trustee shall not be accountable for and makes no
representation as to the validity or value of any securities or assets issued
upon conversion of Notes, and the Trustee shall not be responsible for the
Company's failure to comply with any provisions of this Article 10. Each
Conversion Agent (other than the Company or an Affiliate of the Company) shall
have the same protection under this Section 10.12 as the Trustee.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 10.11, but may accept as conclusive evidence of the
correctness thereof, and shall be protected in relying upon, the Officer's
Certificate with respect thereto, which the Company is obligated to file with
the Trustee pursuant to Section 10.11 of this Indenture.
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Section 10.13 Voluntary Reduction.
The Company from time to time may decrease the Conversion Price by any
amount at any time for at least 20 days, so long as the decrease is irrevocable
during such 20-day period. Whenever the Conversion Price is decreased, the
Company shall mail to Holders of Notes and file with the Trustee and the
Conversion Agent a notice of the decrease. The Company shall mail the notice at
least 15 days before the date the decreased Conversion Price takes effect. The
notice shall state the decreased Conversion Price and the period during which it
will be in effect. A voluntary decrease of the Conversion Price does not change
or adjust the Conversion Price otherwise in effect for purposes of Section 10.14
Section 10.14 Conversion Value of Notes Tendered.
(a) Subject to certain exceptions described in Sections
10.01(a)(3) and 10.01(a)(4), Holders tendering the Notes for conversion shall be
entitled to receive, upon conversion of such Notes, cash and shares of Common
Stock, the value of which (the "Conversion Value") shall be equal to the product
of:
(1) (A) the aggregate principal amount of Notes to be
converted divided by 1,000 multiplied by (B) the Conversion Rate; and
(2) the average of the Common Stock Price for the five
consecutive Trading Days (appropriately adjusted to take into account
the occurrence during such period of stock splits and similar events)
including and immediately following the second Trading Day following
the day the Notes are tendered for conversion (the "Five Day Average
Closing Stock Price"); provided that, if the shares of Common Stock are
not listed on The New York Stock Exchange, then the Five Day Average
Closing Stock Price shall be determined by the Company by reference to
the Common Stock Price as reported by NASDAQ.
(b) Subject to certain exceptions described below and under
Sections 10.01(a)(3) and 10.01(a)(4), the Company shall deliver the Conversion
Value to converting holders as follows:
(1) an amount in cash (the "Principal Return") equal to
the lesser of (a) the aggregate Conversion Value of the Notes to be
converted and (b) the aggregate principal amount of the Notes to be
converted;
(2) if the aggregate Conversion Value of the Notes to be
converted is greater than the aggregate Principal Return of the Notes
to be converted, an amount in shares (the "Net Shares"), determined as
set forth below, equal to the difference between such aggregate
Conversion Value and such aggregate Principal Return (the "Net Share
Amount"); and
(3) an amount paid in cash, determined as set forth
below, for any fractional shares of Common Stock.
The number of Net Shares to be paid shall be determined by dividing the
Net Share Amount by the Five Day Average Closing Stock Price. Holders of Notes
will not receive a fractional share upon conversion of a Note. Instead, the
Holder will receive cash for the value of the fractional share. The cash payment
for fractional shares shall be based on the Five Day Average Closing Stock
Price.
The Conversion Value, Principal Return, number of Net Shares and Net
Share Amount shall be determined by the Company at the end of the fifth
consecutive Trading Day including and immediately
67
following the second Trading Day after the day the Notes are tendered for
conversion (the "Determination Date").
(c) The Company shall pay the Principal Return and cash for
fractional shares and deliver the Net Shares, if any, as promptly as practicable
after the Conversion Date, but in no event later than four Business Days
thereafter. Delivery of the Principal Return, Net Shares and cash in lieu of
fractional shares shall be deemed to satisfy the Company's obligation to pay the
principal amount of the Notes, including accrued interest and Liquidated
Damages, if any, payable on the Notes, except as described below. Accrued
interest shall be deemed paid in full rather than canceled, extinguished or
forfeited. The Company shall not adjust the Conversion Price to account for the
accrued interest. Nonetheless, if Notes are converted after a regular record
date and prior to the opening of business on the next interest payment date,
including the date of maturity, Holders of such Notes, at the close of business
on the next regular record date shall receive the interest (and Liquidated
Damages, if any) payable on such Notes on the corresponding interest payment
date notwithstanding the conversion.
(d) If an Event of Default, as described under Section 6.01 of
this Indenture has occurred and is continuing (other than a Default in a cash
payment upon conversion of the Notes), the Company may not pay cash upon
conversion of any Notes (other than cash in lieu of fractional shares) and
instead will make payment only through the delivery of shares of Common Stock.
The number of shares of Common Stock to be delivered will be equal to (A) the
aggregate principal amount of Notes to be converted divided by 1,000 multiplied
by (B) the Conversion Rate.
(e) Neither the Trustee nor the Conversion Agent has any duty to
determine or calculate the Conversion Value, Principal Return, number of Net
Shares, the Net Share Amount of any other computation required under this
Article 10, all of which shall be determined by the Company (or the Bid
Solicitation Agent, as the case may be) in accordance with the provisions of
this Indenture and the Trustee and Conversion Agent shall not be under any
responsibility to determine the correctness of any such determinations and/or
calculations and may conclusively rely on the correctness thereof.
ARTICLE 11.
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
This Indenture shall be discharged and shall cease to be of further
effect as to all Notes issued hereunder, when:
(1) either:
(a) all Notes that have been authenticated under
the Original Indenture and this Indenture (except lost, stolen or
destroyed Notes that have been replaced or paid and Notes for whose
payment money has theretofore been deposited in trust and thereafter
repaid to the Company) have been delivered to the Trustee for
cancellation; or
(b) all Notes that have not been delivered to
the Trustee for cancellation have become due and payable by reason of
the making of a notice of redemption or otherwise or shall become due
and payable within one year and the Company has irrevocably deposited
or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as shall be sufficient without consideration of any
reinvestment of interest, to pay and
68
discharge the entire indebtedness on the Notes not delivered to the
Trustee for cancellation for principal, premium, if any, and accrued
interest to the date of maturity or redemption;
(2) no Default or Event of Default has occurred and is
continuing on the date of such deposit or shall occur as a result of
such deposit and such deposit shall not result in a breach or violation
of, or constitute a default under, any other instrument to which the
Company is a party or by which the Company is bound;
(3) the Company has paid or caused to be paid all sums
payable by it under this Indenture; and
(4) the Company has delivered irrevocable instructions to
the Trustee under this Indenture to apply the deposited money toward
the payment of the Notes at maturity or the redemption date, as the
case may be.
In addition, the Company must deliver an Officer's Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if
money has been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section, the provisions of Section 11.02 and Section 8.06 shall
survive. In addition, nothing in this Section 11.01 shall be deemed to discharge
those provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.
Section 11.02 Application of Trust Money.
Subject to the provisions of Section 8.06, all money deposited with the
Trustee pursuant to Section 11.01 shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal (and premium, if any) and interest for whose payment such money
has been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 11.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 11.01; provided
that if the Company has made any payment of principal of, premium, if any, or
interest on any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or Government Securities held by the Trustee
or Paying Agent.
ARTICLE 12.
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties or provisions of
the TIA shall control.
69
Section 12.02 Notices.
Any notice or communication by the Company or the Trustee to the others
is duly given if in writing and delivered in Person or mailed by first class
mail (registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company:
Calpine Corporation
50 West San Fernando Street
San Jose, California 95113
Telephone No.: (408) 995-5115
Attention: Ron Fischer
With a copy to:
Covington & Burling
1330 Avenue of the Americas
New York, NY 10019
Telecopier No.: (212) 841-1010
Attention: Bruce Bennett
If to the Trustee:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Telecopier No.: (302) 636-4145
Attention: Corporate Capital Markets
By notice to the others, the Company or the Trustee may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
70
Section 12.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
Section 12.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officer's Certificate in form and substance
reasonably satisfactory to the Trustee (which must include the
statements set forth in Section 12.05 hereof) stating that, in the
opinion of the signer, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have
been satisfied; and
(2) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which must include the
statements set forth in Section 12.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants
have been satisfied.
Section 12.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) must comply with the provisions of TIA
Section 314(e) and must include:
(1) a statement that the Person making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he
or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been satisfied.
Section 12.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 12.07 No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Notes, this Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes by accepting a Note waives and releases all such liability.
The waiver and release
71
are part of the consideration for issuance of the Notes. The waiver may not be
effective to waive liabilities under the federal securities laws.
Section 12.08 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 12.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 12.10 Successors.
All agreements of the Company in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
Section 12.11 Severability.
In case any provision in this Indenture or in the Notes is invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 12.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 12.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
72
SIGNATURES
Dated as of March 12, 2004
CALPINE CORPORATION
By: /s/ ERIC N. PRYOR
----------------------------
Name: Eric N. Pryor
Title: Senior Vice President
73
WILMINGTON TRUST COMPANY
By: /s/ KRISTIN LONG
---------------------------------
Name: Kristin Long
Title: Financial Services Officer
74
EXHIBIT A
[Face of Note]
- --------------------------------------------------------------------------------
CUSIP 131347BH8
4.75% Contingent Convertible Notes due 2023
No. ___ $____________
CALPINE CORPORATION
promises to pay to CEDE & CO.
or registered assigns,
the principal sum of _________________________________________________________
Dollars on November 15, 2023.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
CALPINE CORPORATION
By: _____________________________________
Name:
Title:
Dated: November 14, 2003
This is one of the Notes referred to
in the within-mentioned Indenture:
WILMINGTON TRUST COMPANY,
as Trustee
By: ____________________________________
Authorized Signatory
- --------------------------------------------------------------------------------
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[Back of Note]
4.75% Contingent Convertible Notes due 2023
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN AND SHALL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (3) TO AN
INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
A-2
(1) INTEREST. Calpine Corporation, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at
4.75% per annum from November 14, 2003 until maturity. The Company shall pay
interest semi-annually in arrears on May 15 and November 15 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day (each,
an "Interest Payment Date"). Interest on the Notes shall accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the date of issuance; provided that if there is no existing Default in the
payment of interest, and if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be May 15, 2004. The Company
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
(2) METHOD OF PAYMENT. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the May 1 or November 1 next preceding the Interest
Payment Date, even if such Notes are cancelled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.12 of the
Indenture with respect to defaulted interest. The Notes shall be payable as to
principal, premium, if any, and interest at the office or agency of the Company
maintained for such purpose within or without the City and State of New York,
or, at the option of the Company, payment of interest may be made by check
mailed to the Holders at their addresses set forth in the register of Holders;
provided that payment by wire transfer of immediately available funds shall be
required with respect to principal of and interest, premium on, all Global Notes
and all other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. Such payment shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
(3) PAYING AGENT, CONVERSION AGENT AND REGISTRAR. Initially,
Wilmington Trust Company, the Trustee under the Indenture, shall act as Paying
Agent, Conversion Agent and Registrar. The Company may change any Paying Agent,
Conversion Agent or Registrar without prior notice to any Holder. The Company or
any of its Subsidiaries may act in any such capacity.
(4) INDENTURE. The Company issued the Notes under an Indenture
dated as of November 14, 2003, as amended and restated on February __, 2004 (as
so amended and restated, the "Indenture") between the Company and the Trustee.
The terms of the Notes include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code Section 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling.
(5) OPTIONAL REDEMPTION. At any time on or after November 22,
2009, the Company may redeem the Notes, in whole at any time, or in part from
time to time, for cash at a price equal to 100% of the principal amount of the
Notes plus accrued and unpaid interest (and Liquidated Damages, if any) up to
but not including the date of redemption. The Company will give not less than 30
days' nor more than 60 days' notice of redemption by mail to Holders of the
Notes. If the Company opts to redeem less than all of the Notes at any time, the
Trustee will
A-3
select or cause to be selected the Notes to be redeemed by any method that it
deems fair and appropriate. In the event of a partial redemption, the Trustee
may provide for selection for redemption of portions of the principal amount of
any Note of a denomination larger than $1,000.
(6) MANDATORY REDEMPTION. The Company shall not be required to
make mandatory redemption or sinking fund payments with respect to the Notes.
(7) REPURCHASE AT OPTION OF HOLDER. (a) If a Change in Control
occurs, each Holder of Notes shall have the right to require the Company to
repurchase all or any part (equal to $1,000 or an integral multiple of $1,000)
of that Holder's Notes pursuant to the terms set forth in the Indenture. The
Company shall deliver to each holder that has delivered to the Paying Agent an
irrevocable written notice of purchase: (i) a payment in cash equal to the issue
price of the aggregate principal amount of Notes repurchased plus accrued and
unpaid interest (and Liquidated Damages, if any) on the Notes repurchased (the
"Change in Control Purchase Price"), to but excluding the date of purchase or
(ii) at the Company's option, the Change in Control Purchase Price in shares of
Common Stock valued at 95% of the Market Price. Within 30 days following any
Change of Control, the Company shall mail a notice to each Holder as required by
the Indenture. (b) Holders have the right to require the Company to repurchase
all or a portion of their Notes on November 15, 2009, November 15, 2013 and
November 15, 2018. The Company will be required to repurchase any outstanding
Notes for which Holders deliver a written repurchase notice to the paying agent.
This notice must be delivered during the period beginning at any time from the
opening of business on the date that is 20 Business Days prior to the repurchase
date until the close of business on the last Business Day prior to the
repurchase date. If the repurchase notice is given and withdrawn during the
period, the Company will not be obligated to repurchase the related Notes. The
repurchase price payable will be equal to 100% of the principal amount of the
Notes plus any accrued and unpaid interest (and Liquidated Damages, if any) to
such repurchase date. The Company may choose, in its sole discretion, to pay the
repurchase price in cash or shares of its Common Stock, or a combination of cash
and shares of its Common Stock.
(8) NOTICE OF REDEMPTION. Notice of redemption shall be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
(9) CONVERSION. Upon satisfaction of the conditions set forth in
Section 10.01(a) of the Indenture, a Holder of a Note may convert any portion of
the principal amount of any Note that is an integral multiple of $1,000 into
cash and fully paid and non-assessable shares (calculated as to each conversion
to the nearest 1/100th of a share) of Common Stock in accordance with the
provisions of Section 10.14 of the Indenture. Such conversion right shall
commence on the initial issuance date of the Notes and expire at the close of
business on the Business Day immediately preceding the date of Maturity,
subject, in the case of conversion of any Global Note, to any Applicable
Procedures. The Conversion Price shall, as of the date of the Indenture,
initially be $6.50. The Conversion Rate shall, as of the date of the Indenture,
initially be 153.8462. The Conversion Rate will be adjusted under the
circumstances specified in the Indenture.
(10) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of
A-4
Notes may be registered and Notes may be exchanged as provided in the Indenture.
The Registrar and the Trustee may require a Holder, 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. The Company need not exchange or register the transfer of any Note or
portion of a Note selected for redemption, except for the unredeemed portion of
any Note being redeemed in part. Also, the Company need not exchange or register
the transfer of any Notes for a period of 15 days before a selection of Notes to
be redeemed or during the period between a record date and the corresponding
Interest Payment Date.
(11) PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
(12) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes and Additional Notes, if any, voting as a single class, and
any existing default or compliance with any provision of the Indenture or the
Notes may be waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes and Additional Notes, if any, voting as a
single class. Without the consent of any Holder of a Note, the Indenture or the
Notes may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in place of
certificated Notes, to provide for the assumption of the Company's obligations
to Holders of the Notes in case of a merger, consolidation or asset transfer, to
make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights under
the Indenture of any such Holder, to comply with the requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the Trust
Indenture Act, to provide for the issuance of Additional Notes in accordance
with the limitations set forth in the Indenture, to conform the text of the
Indenture or the Notes to any provision of the Description of the Notes section
of the Offering Circular to the extent that such provision of the Description of
the Notes section of the Offering Circular was intended to be a verbatim
recitation of a provision of the Indenture or the Notes and add covenants that
would benefit the Holders of Notes or to surrender any rights the Company has
under the Indenture, provided that no such waiver or amendment shall adversely
affect the right of Holders of Notes.
(13) DEFAULTS AND REMEDIES. Events of Default include: (i) default
for 30 days in payment of any interest installment due and payable on the Notes;
(ii) default in payment of principal of the Notes and accrued interest at
maturity, upon repurchase or following a Change of Control, when the same
becomes due and payable; (iii) material default in the Company's performance of
any other covenants or agreements in the Notes or this Indenture which default
continues for 30 days after the date on which written notice of such default is
given to the Company by the Trustee or to the Company and Trustee by the Holders
of at least 25% in principal amount of the then outstanding Notes; (iv) default
by the Company under any instrument or instruments under which there is or may
be secured or evidenced any of the Company's indebtedness (other than the Notes)
having an outstanding principal amount of $50,000,000 (or its equivalent in any
other currency or currencies) or more, individually or in the aggregate, that
has caused the Holders thereof to declare such indebtedness to be due and
payable prior to its Stated Maturity, unless such declaration has been rescinded
within 30 days; (v) default in the payment of the principal of any bond,
debenture, note or other evidence of the Company's indebtedness, in each case
for money borrowed, or in the payment of principal under any mortgage,
indenture, agreement or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness of ours for money borrowed,
which default for
A-5
payment of principal is individually or in an aggregate principal amount
exceeding $50,000,000 (or its equivalent in any other currency or currencies)
when such indebtedness becomes due and payable (whether at maturity, upon
redemption or acceleration or otherwise), if such default shall continue
unremedied or unwaived for more than 30 days after the expiration of any grace
period or extension of the time for payment applicable thereto; and (vi) certain
events of bankruptcy, insolvency and reorganization of the Company. If any Event
of Default occurs and is continuing, the Trustee or the Holders of at least 25%
in principal amount of the then outstanding Notes may declare all the Notes to
be due and payable. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, all outstanding
Notes shall become due and payable without further action or notice. Holders may
not enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of the
then outstanding Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default if it determines that withholding Notes
is in their interest, except a Default or Event of Default relating to the
payment of principal or interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of interest on, or the principal of, the Notes.
The Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required upon becoming aware
of any Default or Event of Default under clauses (3) through (5) of Section 6.01
of the Indenture, to deliver to the Trustee a statement specifying such Default
or Event of Default.
(14) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
(15) NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company as such, shall not have any
liability for any obligations of the Company under the Notes, the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
(16) AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
(17) 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).
(18) 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 the Notes 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 the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
A-6
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Calpine Corporation
50 West San Fernando Street
San Jose, California 95113
Attention: Ron Fischer
A-7
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(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 Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
Your Signature: _________________________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 3.09 or 3.10 of the Indenture, check the appropriate box
below:
- Section 3.09 - Section 3.10
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 3.09 or Section 3.10 of the Indenture, state the
amount you elect to have purchased:
$__________________
Date: _______________
Your Signature: _________________________________
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No.: ________________________
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-9
FORM OF CONVERSION NOTICE
TO: CALPINE CORPORATION
WILMINGTON TRUST COMPANY
THE UNDERSIGNED REGISTERED OWNER OF THIS NOTE HEREBY IRREVOCABLY
EXERCISES THE OPTION TO CONVERT THIS NOTE, OR THE PORTION THEREOF BELOW
DESIGNATED, INTO THE CONVERSION VALUE IN ACCORDANCE WITH THE TERMS OF THE
INDENTURE REFERRED TO IN THIS NOTE. CAPITALIZED TERMS USED HEREIN BUT NOT
DEFINED HEREIN SHALL HAVE THE MEANINGS ASCRIBED TO SUCH TERMS IN THE INDENTURE.
PLEASE NOTE: You may only convert this Note upon satisfaction of one of
the conditions set forth in Section 10.01(a)(1) through (5) of the Indenture. If
you are converting this Note upon satisfaction of the condition set forth in
Section 10.01(a)(3), please provide, with this Conversion Notice, reasonable
evidence that the Trading Price of the Note is less than 95% of the product of
(x) the Common Stock Price and (y) the Conversion Rate in effect.
Upon conversion of your Note, you will receive the Conversion Value in
cash and Common Stock of the Company in accordance with Article 10 of the
Indenture.
To convert only part of this Note, state the Principal Amount to be
converted (which must be $1,000 or an integral multiple of $1,000):
$___________________________
If you want the stock certificate (if any) made out in another person's
name, fill in the form below:
________________________________________________________________________________
(Insert other person's social security or tax ID no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type other person's name, address and zip code)
Date: _____________________________ Signed: ______________________
(Sign exactly as your name appears on the other side of this Security.
The Signature(s) must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended)
Signature Guarantee:________________________________
A-10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Amount
Amount of decrease in Amount of increase in of this Global Note
Principal Amount Principal Amount following such Signature of authorized
of of decrease officer of Trustee
Date of Exchange this Global Note this Global Note (or increase) or Custodian
- ---------------- --------------------- --------------------- ------------------- -----------------------
* This schedule should be included only if the Note is issued in global form.
A-11
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Calpine Corporation
50 West San Fernando Street
San Jose, California 95113
Wilmington Trust Company
520 Madison Avenue, 33rd Floor
New York, NY 10022
Re: 4.75% Contingent Convertible Notes due 2023
Reference is hereby made to the Indenture, dated as of November 14,
2003, as amended and restated on February __, 2004 (as so amended and restated,
the "Indenture"), between Calpine Corporation, as issuer (the "Company"), and
Wilmington Trust Company, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
___________________, (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE SHALL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer
is being effected pursuant to and in accordance with Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the beneficial interest or Definitive
Note is being transferred to a Person that the Transferor reasonably believed
and believes is purchasing the beneficial interest or Definitive Note for its
own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note shall be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.
2. [ ] CHECK AND COMPLETE IF TRANSFEREE SHALL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A. The Transfer is being
effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Notes and Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a
subsidiary thereof;
B-1
or
(c) [ ] such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in
compliance with the prospectus delivery requirements of the Securities
Act;
or
(d) [ ]such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A or Rule 144,
and the Transferor hereby further certifies that it has not engaged in
any general solicitation within the meaning of Regulation D under the
Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or
Restricted Definitive Notes and the requirements of the exemption
claimed, which certification is supported by (1) a certificate executed
by the Transferee in the form of Exhibit D to the Indenture and (2) an
Opinion of Counsel provided by the Transferor or the Transferee (a copy
of which the Transferor has attached to this certification), to the
effect that such Transfer is in compliance with the Securities Act.
Upon consummation of the proposed transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive
Note shall be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the IAI Global Note and/or the
Definitive Notes and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Transferor]
By: _______________________
Name:
Title:
Dated: _______________________
B-2
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] IAI Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee shall hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] IAI Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note,
in accordance with the terms of the Indenture.
B-3
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Calpine Corporation
50 West San Fernando Street
San Jose, California 95113
Wilmington Trust Company
520 Madison Avenue, 33rd Floor
New York, NY 10022
Re: 4.75% Contingent Convertible Notes due 2023
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of November 14,
2003, as amended and restated on February __, 2004 (as so amended and restated,
the "Indenture"), among Calpine Corporation, as issuer (the "Company") and
Wilmington Trust Company, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
__________________________, (the "Owner") owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $____________ in such Note[s] or interests (the "Exchange"). In
connection with the Exchange, the Owner hereby certifies that:
EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued shall continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE] [ ]144A Global Note, [ ]IAI Global Note with an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities laws of any state
of the United States. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the beneficial interest issued shall be subject
to the restrictions on transfer enumerated in the Private Placement Legend
printed on the relevant Restricted Global Note and in the Indenture and the
Securities Act.
C-1
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_____________________________________
[Insert Name of Transferor]
By: ________________________________
Name:
Title:
Dated: ______________________
C-2
EXHIBIT D
FORM OF CERTIFICATE OF
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Calpine Corporation
50 West San Fernando Street
San Jose, California 95113
Wilmington Trust
520 Madison Avenue, 33rd Floor
New York, NY 10022
Re: 4.75% Contingent Convertible Notes due 2023
Reference is hereby made to the Indenture, dated as of November 14,
2003, as amended and restated on February __, 2004 (as so amended and restated,
the "Indenture"), among Calpine Corporation, as issuer (the "Company") and
Wilmington Trust Company, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we shall do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such transfer is in
compliance with the Securities Act, (D) pursuant to the provisions of Rule
144(k) under the Securities Act or (E) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
Person purchasing the Definitive Note or beneficial interest in a Global Note
from us in a transaction meeting the requirements of clauses (A) through (D) of
this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we shall be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
shall bear a legend to the foregoing effect.
D-1
EXHIBIT D
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
_____________________________________
[Insert Name of Transferor]
By: ________________________________
Name:
Title:
Dated: ______________________
D-2