CALGON CARBON CORPORATION,
THE SUBSIDIARY GUARANTORS PARTIES HERETO
AND
THE BANK OF NEW YORK,
AS TRUSTEE
5.00% CONVERTIBLE SENIOR NOTES DUE 2036
INDENTURE
DATED AS OF AUGUST 18, 2006
TABLE OF CONTENTS
PAGE
----
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions............................................... 1
Section 1.02. Incorporation by Reference of TIA......................... 11
Section 1.03. Rules of Construction..................................... 12
ARTICLE 2
THE SECURITIES
Section 2.01. Title; Amount and Issue of Securities; Principal and
Interest.................................................. 12
Section 2.02. Form of Securities........................................ 14
Section 2.03. Legends................................................... 14
Section 2.04. Execution and Authentication.............................. 17
Section 2.05. Registrar and Paying Agent................................ 18
Section 2.06. Paying Agent to Hold Money in Trust....................... 19
Section 2.07. Holder Lists.............................................. 19
Section 2.08. General Provisions Relating to Transfer and Exchange...... 19
Section 2.09. Book-Entry Provisions for the Global Securities........... 20
Section 2.10. Special Transfer Provisions............................... 22
Section 2.11. Mutilated, Destroyed, Lost or Stolen Securities........... 23
Section 2.12. Outstanding Securities.................................... 24
Section 2.13. Temporary Securities...................................... 24
Section 2.14. Cancellation.............................................. 25
Section 2.15. Payment of Interest; Defaulted Interest................... 25
Section 2.16. Computation of Interest................................... 26
Section 2.17. CUSIP and ISIN Numbers.................................... 27
ARTICLE 3
COVENANTS
Section 3.01. Payment of Securities..................................... 27
Section 3.02. Financial Statements...................................... 27
Section 3.03. Future Subsidiary Guarantors.............................. 28
Section 3.04. Maintenance of Office or Agency........................... 28
Section 3.05. Corporate Existence....................................... 28
Section 3.06. Payment of Taxes and Other Claims......................... 28
Section 3.07. Compliance Certificate.................................... 29
Section 3.08. Further Instruments and Acts.............................. 29
Section 3.09. Statement by Officers as to Default....................... 29
Section 3.10. Additional Interest....................................... 29
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Section 3.11. Stay, Extension and Usury Laws............................ 29
ARTICLE 4
SUCCESSOR COMPANY
Section 4.01. Consolidation, Merger and Sale of Assets of the Company... 29
Section 4.02. Consolidation, Merger and Sale of Assets of the
Subsidiary Guarantors..................................... 30
ARTICLE 5
REDEMPTION OF SECURITIES
Section 5.01. Optional Redemption....................................... 31
Section 5.02. Election to Redeem; Notice to Trustee..................... 31
Section 5.03. Selection by Trustee of Securities to Be Redeemed......... 31
Section 5.04. Notice of Redemption...................................... 32
Section 5.05. Deposit of Redemption Price............................... 33
Section 5.06. Securities Payable on Redemption Date..................... 33
Section 5.07. Securities Redeemed in Part............................... 34
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default......................................... 34
Section 6.02. Acceleration.............................................. 36
Section 6.03. Other Remedies............................................ 36
Section 6.04. Waiver of Past Defaults................................... 36
Section 6.05. Control by Majority....................................... 37
Section 6.06. Limitation on Suits....................................... 37
Section 6.07. Rights of Holders to Receive Payment...................... 38
Section 6.08. Collection Suit by Trustee................................ 38
Section 6.09. Trustee May File Proofs of Claim.......................... 38
Section 6.10. Priorities................................................ 38
Section 6.11. Restoration of Rights and Remedies........................ 39
Section 6.12. Undertaking of Costs...................................... 39
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee......................................... 39
Section 7.02. Rights of Trustee......................................... 41
Section 7.03. Individual Rights of Trustee.............................. 41
Section 7.04. Trustee's Disclaimer...................................... 42
Section 7.05. Notice of Defaults........................................ 42
Section 7.06. Reports by Trustee to Holders............................. 42
Section 7.07. Compensation and Indemnity................................ 42
Section 7.08. Replacement of Trustee.................................... 43
Section 7.09. Successor Trustee by Merger............................... 44
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Section 7.10. Eligibility; Disqualification............................. 44
Section 7.11. Preferential Collection of Claims Against Company......... 45
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01. Discharge of Liability on Securities...................... 45
Section 8.02. Reinstatement............................................. 46
Section 8.03. Officers' Certificate; Opinion of Counsel................. 46
ARTICLE 9
AMENDMENTS
Section 9.01. Without Consent of Holders................................ 46
Section 9.02. With Consent of Holders................................... 47
Section 9.03. Compliance with TIA....................................... 48
Section 9.04. Revocation and Effect of Consents and Waivers............. 48
Section 9.05. Notation on or Exchange of Securities..................... 49
Section 9.06. Trustee to Sign Amendments................................ 49
ARTICLE 10
SUBSIDIARY GUARANTEES
Section 10.01. Subsidiary Guarantees..................................... 49
Section 10.02. Limitation on Liability; Release and Discharge;
Termination on Conversion................................. 51
Section 10.03. Right of Contribution..................................... 52
ARTICLE 11
PURCHASE AT THE OPTION OF HOLDER UPON A FUNDAMENTAL
CHANGE; PURCHASE AT THE OPTION OF HOLDER
Section 11.01. Purchase at the Option of the Holder Upon a Fundamental
Change.................................................... 52
Section 11.02. Purchase at the Option of the Holder...................... 54
Section 11.03. Further Conditions and Procedures for Purchase at the
Option of the Holder Upon a Fundamental Change and
Purchase at the Option of the Holder...................... 56
ARTICLE 12
CONVERSION
Section 12.01. Conversion of Securities.................................. 59
Section 12.02. Adjustments to Conversion Rate............................ 63
Section 12.03. Adjustment Upon Certain Fundamental Changes............... 70
Section 12.04. Effect of Reclassification, Consolidation, Merger or
Sale...................................................... 72
Section 12.05. Responsibility of Trustee................................. 73
Section 12.06. Notice to Holders Prior to Certain Actions................ 74
Section 12.07. Stockholder Rights Plan................................... 75
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ARTICLE 13
MISCELLANEOUS
Section 13.01. TIA Controls.............................................. 75
Section 13.02. Notices................................................... 75
Section 13.03. Communication by Holders with other Holders............... 76
Section 13.04. Certificate and Opinion as to Conditions Precedent........ 76
Section 13.05. Statements Required in Certificate or Opinion............. 77
Section 13.06. When Securities Are Disregarded........................... 77
Section 13.07. Rules by Trustee, Paying Agent and Registrar.............. 77
Section 13.08. Legal Holidays............................................ 77
Section 13.09. Governing Law; Waiver of Jury Trial....................... 77
Section 13.10. No Recourse Against Others................................ 78
Section 13.11. Successors................................................ 78
Section 13.12. Multiple Originals........................................ 78
Section 13.13. Qualification of Indenture................................ 78
Section 13.14. Table of Contents; Headings............................... 78
Section 13.15. Severability Clause....................................... 78
Section 13.16. Calculations.............................................. 78
SCHEDULE A Additional Shares
EXHIBIT A Form of the Security
EXHIBIT B Form of Supplemental Indenture
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CROSS-REFERENCE TABLE
Indenture
TIA Section Section
- ----------- ----------------
310(a)(1) ................................................... 7.10
(a)(2) ................................................... 7.10
(a)(3) ................................................... N.A.
(a)(4) ................................................... N.A.
(a)(5) ................................................... 7.10
(b) ...................................................... 7.08; 7.10
(c) ...................................................... N.A.
311(a) ...................................................... 7.11
(b) ...................................................... 7.11
(c) ...................................................... N.A.
312(a) ...................................................... 2.07
(b) ...................................................... 13.03
(c) ...................................................... 13.03
313(a) ...................................................... 7.06
(b) ...................................................... 7.06
(c) ...................................................... 7.06
(d) ...................................................... N.A.
314(a) ...................................................... 3.02(b); 3.07
(b) ...................................................... N.A.
(c) ...................................................... 13.04
(d) ...................................................... N.A.
(e) ...................................................... 13.05
(f) ...................................................... N.A.
315(a) ...................................................... 7.01
(b) ...................................................... 7.05
(c) ...................................................... 7.01
(d) ...................................................... 7.01
(e) ...................................................... 6.12
316(a) ...................................................... 6.04, 6.05,13.06
(b) ...................................................... 6.07
(c) ...................................................... 6.05
317(a) ...................................................... 6.08, 6.09
(b) ...................................................... 2.06
318(a) ...................................................... 13.01
(b) ...................................................... N.A.
(c) ...................................................... 13.01
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
vi
INDENTURE dated as of August 18, 2006, among CALGON CARBON CORPORATION, a
Delaware corporation (the "COMPANY"), the Subsidiary Guarantors (as defined
below) and The Bank of New York, as Trustee (the "TRUSTEE").
Each party agrees as follows for the benefit of the other parties and for
the equal and ratable benefit of the Holders of the Company's 5.00% Convertible
Senior Notes due 2036 (the "SECURITIES") and the Guarantees thereof by certain
of the Company's subsidiaries.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"ADDITIONAL INTEREST" means all amounts, if any, payable pursuant to
Section 2 of the Registration Rights Agreement.
"ADDITIONAL SHARES" has the meaning specified in Section 12.03(a).
"ADJUSTMENT EVENT" has the meaning specified in Section 12.02(m).
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling, controlled by or under direct or indirect common control
with such specified Person. For the purposes of this definition, "CONTROL" when
used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise, and the terms
"CONTROLLING" and "CONTROLLED" have meanings correlative to the foregoing.
"AGENT MEMBERS" has the meaning specified in Section 2.09(a).
"AUTHENTICATING AGENT" has the meaning specified in Section 2.04.
"BANKRUPTCY LAW" means Title 11 of the United States Code or any similar
federal or state law for the relief of debtors.
"BENEFICIAL OWNER" shall mean any person who is considered a beneficial
owner of a security in accordance with Rule 13d-3 promulgated by the Commission
under the Exchange Act.
"BOARD OF DIRECTORS" means, as to any Person, the board of directors of
such Person or any duly authorized committee thereof.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or Assistant Secretary of a Person to have been duly adopted by the Board of
Directors of such Person and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BID SOLICITATION AGENT" means the agency appointed by the Company to
solicit bids for the Trading Price of the Securities in accordance with Section
12.01(a)(ii). The Bid Solicitation Agent appointed by the Company shall
initially be the Trustee.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which the banking institutions in New York City are
authorized or obligated by law or executive order to close or be closed.
"CAPITAL STOCK" of any Person means any and all shares, interests, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"CERTIFICATE OF DESTRUCTION" has the meaning specified in Section 2.14.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" has the meaning specified in Section 1.02.
"COMMON EQUITY" of any Person means Capital Stock of such Person that is
generally entitled to (1) vote in the election of directors of such Person or
(2) if such Person is not a corporation, vote or otherwise participate in the
selection of the governing body, partners, managers or others that will control
the management or policies of such Person.
"COMMON STOCK" means the Company's Common Stock, par value $0.01 per share.
"COMPANY" means Calgon Carbon Corporation or its successors and assigns.
"COMPANY NOTICE" has the meaning specified in Section 11.03(a).
"COMPANY NOTICE DATE" has the meaning specified in Section 11.03(a).
"COMPANY ORDER" has the meaning specified in Section 2.04.
"CONTINUING DIRECTOR" means a director who either was a member of the Board
of Directors on August 14, 2006, or who becomes a member of the Board of
Directors subsequent to that date and whose election, appointment or nomination
for election by stockholders of the Company, is duly approved by a majority of
the continuing directors on the Board of Directors at the time of such approval,
either by a specific vote or by approval of the proxy statement issued by the
Company on behalf of the entire Board of Directors in which such individual is
named as nominee for director.
"CONVERSION AGENT" means the office or agency appointed by the Company
where Securities may be presented for conversion. The Conversion Agent appointed
by the Company shall initially be the Trustee.
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"CONVERSION DATE" has the meaning specified in Section 12.01(b).
"CONVERSION NOTICE" has the meaning specified in Section 12.01(b).
"CONVERSION PRICE" means, in respect of each $1,000 principal amount of
Securities, $1,000 divided by the Conversion Rate, as may be adjusted from time
to time as set forth herein.
"CONVERSION RATE" means, in respect of each $1,000 principal amount of
Securities, initially 196.0784 shares of Common Stock, subject to adjustments as
set forth herein.
"CREDIT AGREEMENT" means the Credit Agreement, dated as of the Issue Date,
among the Company, Calgon Carbon Investments Inc., certain other subsidiaries of
the Company, JPMorgan Chase Bank, N.A., as Administrative Agent, and the lenders
parties thereto from time to time, as amended, restated, modified, renewed,
refunded, replaced or refinanced in whole or in part from time to time (and
whether or not with the original administrative agent and lenders or another
administrative agent or agents or other lenders and whether provided under the
original Credit Agreement or any other credit or other agreement or indenture).
"CUSTODIAN" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
"DAILY CONVERSION VALUE" means, for each of the 25 consecutive Trading Days
during the Observation Period, one-twenty-fifth (1/25) of the product of (1) the
applicable Conversion Rate and (2) the Daily VWAP of the Common Stock on such
day.
"DAILY SETTLEMENT AMOUNT," for each of the 25 Trading Days during the
Observation Period, shall consist of:
(i) cash equal to the lesser of $40 and the Daily Conversion Value
relating to such day; and
(ii) to the extent the Daily Conversion Value exceeds $40, a number of
shares equal to (A) the difference between the Daily Conversion Value and
$40, divided by (B) the Daily VWAP of the Common Stock (or the
consideration into which the Common Stock has been exchanged in connection
with certain corporate transactions) on such day.
"DAILY VWAP" of the Common Stock means, for each of the 25 consecutive
Trading Days during the Observation Period, the per share volume-weighted
average price as displayed under the heading "Bloomberg VWAP" on Bloomberg
Financial Markets page "CCC.N (equity) AQR", or any successor page, in respect
of the period from 9:30 a.m. to 4:00 p.m., New York City time, on such Trading
Day (or if such volume-weighted average price is unavailable, the market value
of one share of Common Stock on such Trading Day as determined using a
volume-weighted average method by a nationally recognized independent investment
banking firm selected by the Company for this purpose).
3
"DEFAULT" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 2.15.
"DEFINITIVE SECURITIES" mean certificated Securities that are not Global
Securities.
"DETERMINATION DATE" has the meaning specified in Section 12.02(m).
"DTC" means The Depository Trust Company, its nominees and their respective
successors and assigns, or such other depository institution hereinafter
appointed by the Company pursuant to the terms of this Indenture.
"EFFECTIVE DATE" has the meaning specified in Section 12.03(b).
"EVENT OF DEFAULT" has the meaning specified in Section 6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"EX-DIVIDEND DATE" means, in respect of a dividend or distribution to
holders of Common Stock, the first date upon which a sale of the Common Stock
does not automatically transfer the right to receive the relevant dividend or
distribution from the seller of the Common Stock to its buyer.
"EXPIRATION TIME" has the meaning specified in Section 12.02(e).
"FAIR MARKET VALUE" means the amount that a willing buyer would pay a
willing seller in an arm's length transaction.
A "FUNDAMENTAL CHANGE" shall be deemed to have occurred at such time after
the original issuance of the Securities as any of the following occurs:
(1) any "person" or "group" within the meaning of Section 13(d) of the
Exchange Act, other than the Company, any Subsidiary of the Company or
any employee benefit plan of the Company or any such Subsidiary, files
a Schedule TO or any other schedule, form or report under the Exchange
Act disclosing that such person or group has become the Beneficial
Owner of Common Equity of the Company representing more than 50% of
the ordinary voting power of the Company's Common Equity;
(2) consummation of any share exchange, consolidation or merger of the
Company pursuant to which the Common Stock will be converted into
cash, securities or other property or any conveyance, transfer, sale,
lease or disposition (in one transaction or a series of transactions)
of all or substantially all of the consolidated assets of the Company
and its Subsidiaries, taken as a whole, to any Person other
4
than one of the Company's Subsidiaries; provided, however, that a
transaction where the holders of more than 50% of all classes of the
Company's Common Equity immediately prior to such transaction own,
directly or indirectly, more than 50% of all classes of Common Equity
of the continuing or surviving corporation or transferee or parent
thereof immediately after such event shall not be a Fundamental
Change;
(3) Continuing Directors cease to constitute at least a majority of the
Board of Directors;
(4) the stockholders of the Company approve any plan or proposal for the
liquidation or dissolution of the Company; or
(5) the Common Stock (or other common stock into which the Securities are
then convertible) ceases to be listed on a national securities
exchange or quoted on the Nasdaq Global Select Market or the Nasdaq
Global Market (to the extent that the Nasdaq Global Select Market or
the Nasdaq Global Market is not at such time a U.S. national
securities exchange) or another established automated over-the-counter
trading market in the United States;
provided, however, that a Fundamental Change shall not be deemed to have
occurred if at least 90% of the consideration received or to be received by the
holders of the Common Stock, excluding cash payments for fractional shares, in
connection with the transaction or transactions constituting the Fundamental
Change consists of shares of common stock traded on a U.S. national securities
exchange or quoted on the Nasdaq Global Select Market or the Nasdaq Global
Market (to the extent that the Nasdaq Global Select Market or the Nasdaq Global
Market is not at such time a United States national exchange) or which shall be
so traded or quoted when issued or exchanged in connection with such Fundamental
Change (such securities being referred to as "PUBLICLY TRADED SECURITIES") and
as a result of such transaction or transactions the Securities become
convertible into such Publicly Traded Securities pursuant to the terms of this
Indenture.
"FUNDAMENTAL CHANGE PURCHASE DATE" has the meaning specified in Section
11.01.
"FUNDAMENTAL CHANGE PURCHASE NOTICE" has the meaning specified in Section
11.01(b).
"FUNDAMENTAL CHANGE PURCHASE PRICE" has the meaning specified in Section
11.01.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the (i) Public Company Accounting Oversight
Board, (ii) statements and pronouncements of the Financial Accounting Standards
Board, (iii) in such other statements by such other entity as may be approved by
a significant segment of the accounting profession as in effect from time to
time and (iv) the rules and regulations of the Commission governing the
inclusion of financial statements in period reports required to be filed
pursuant to Section 13 of
5
the Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the
Commission.
"GLOBAL SECURITIES" means certificated Securities in global form, without
interest coupons, substantially in the form of Exhibit A hereto and registered
in the name of DTC or a nominee of DTC.
"GLOBAL SECURITY LEGEND" has the meaning specified in Section 2.03(iv).
"GUARANTEE" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any debt of any other Person and any
obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the purchase or
payment of) such debt of such other Person (whether arising by virtue
of partnership arrangements, or by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise); or
(2) entered into for purposes of assuring in any other manner the obligee
of such debt of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" will not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"GUARANTEED OBLIGATIONS" has the meaning specified in Section 10.01.
"HOLDER" means the Person in whose name a Security is registered in the
Securities Register.
"INDENTURE" means this Indenture, as amended or supplemented from time to
time.
"INITIAL PURCHASER" means J.P. Morgan Securities Inc.
"ISSUE DATE" means August 18, 2006.
"LAST REPORTED SALE PRICE" of the Common Stock on any date means:
(a) 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 asked prices) on the NYSE
on that date (or, if no closing sale price is reported, the last reported sale
price);
6
(b) if the Common Stock is not listed for trading on the NYSE, the closing
sale price (or, if no closing sale price is reported, the last reported sale
price) as reported on that date in composite transactions for the principal U.S.
national or regional securities exchange on which the Common Stock is listed;
(c) if the Common Stock is not so listed on a U.S. national or regional
securities exchange, the last sale price of the Common Stock on that date as
reported by the Nasdaq Global Select Market or the Nasdaq Global Market (to the
extent that the Nasdaq Global Select Market or the Nasdaq Global Market is not
at such time a U.S. national or regional securities exchange);
(d) if the Common Stock is not so reported by the Nasdaq Global Select
Market or the Nasdaq Global Market (to the extent that the Nasdaq Global Select
Market or the Nasdaq Global Market is not at such time a U.S. national or
regional securities exchange), the last quoted bid price for the Common Stock on
that date in the over-the-counter market as reported by Pink Sheets LLC or
similar organization; or
(e) if the Common Stock is not so quoted by Pink Sheets LLC or similar
organization, the average of the mid-point of the last bid and ask prices for
the Common Stock on that date from a nationally recognized independent
investment banking firm selected by the Company for this purpose.
"LEGAL HOLIDAY" has the meaning specified in Section 13.08.
"MARKET DISRUPTION EVENT" means:
(a) for the purposes of Section 12.01(a), if the Common Stock is listed on
the NYSE or another U.S. national or regional securities exchange, or is quoted
on the Nasdaq Global Select Market or Nasdaq Global Market (to the extent that
the Nasdaq Global Select Market or Nasdaq Global Market is not at such time a
U.S. national or regional exchange), the occurrence or existence during the one
half-hour period ending on the scheduled close of trading on any Trading Day of
any material suspension or limitation imposed on trading (by reason of movements
in price exceeding limits permitted by the stock exchange or otherwise) in the
Common Stock or in any options, contracts or future contracts relating to the
Common Stock; and
(b) for every other purpose (i) failure by the primary U.S. national
securities exchange or market on which the Common Stock is listed or admitted to
trading to open for trading during its regular trading session or (ii) the
occurrence or existence prior to 1:00 p.m. on any Trading Day for the Common
Stock for an aggregate one half-hour period of any suspension or limitation
imposed on trading (by reason of movements in price exceeding limits permitted
by the stock exchange or otherwise) in the Common Stock or in any options,
contracts or future contracts relating to the Common Stock.
"MEASUREMENT PERIOD" has the meaning specified in Section 12.01(a)(ii).
7
"NYSE" means the New York Stock Exchange, Inc.
"OBSERVATION PERIOD" means, with respect to a conversion of any Security,
the 25 consecutive Trading Day period beginning on and including the second
Trading Day immediately following the Conversion Date for such Security, except
that with respect to any Conversion Date for a Security occurring after the date
of issuance of a notice of redemption pursuant to Article 5, the Observation
Period shall be the 25 consecutive Trading Day period beginning on and including
the 28th Scheduled Trading Day prior to the applicable Redemption Date.
"OFFERING MEMORANDUM" means the offering memorandum, dated August 14, 2006,
relating to the offering by the Company of the Securities.
"OFFICER" means the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, any Vice President, the Treasurer or the
Secretary of the Company. The term Officer of any Subsidiary Guarantor has a
correlative meaning.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers of the
Company or the Subsidiary Guarantors, as applicable.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
"PAYING AGENT" has the meaning specified in Section 2.05.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company, government or any agency or political subdivision hereof or
any other entity.
"PREFERRED STOCK", as applied to the Capital Stock of any corporation,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"PUBLICLY TRADED SECURITIES" has the meaning specified in the definition of
"Fundamental Change" in this Section 1.01.
"PURCHASE AGREEMENT" means the Purchase Agreement dated August 14, 2006,
among the Company, the Subsidiary Guarantors and the Initial Purchaser relating
to the initial purchase and sale of the Securities.
"PURCHASE DATE" has the meaning specified in Section 11.02(a).
"PURCHASE NOTICE" has the meaning specified in Section 11.02(a)(i).
8
"PURCHASE PRICE" has the meaning specified in Section 11.02(a).
"QIB" means any "qualified institutional buyer" (as term is defined in Rule
144A).
"RECORD DATE" means, in respect of a dividend or distribution to holders of
Common Stock, the date fixed for determination of holders of Common Stock
entitled to receive such dividend or distribution.
"REDEMPTION DATE" means, with respect to any redemption of Securities, the
date of redemption with respect thereto.
"REDEMPTION PRICE" has the meaning specified in Section 5.01.
"REFERENCE PROPERTY" has the meaning specified in Section 12.04(a).
"REGISTRAR" has the meaning specified in Section 2.05.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement
dated as of the Issue Date among the Company, the Subsidiary Guarantors and the
Initial Purchaser.
"REGULAR RECORD DATE" for the payment of interest on the Securities
(including Additional Interest, if any), means the February 1 (whether or not a
Business Day) immediately preceding an interest payment date on February 15 and
the August 1 (whether or not a Business Day) immediately preceding an interest
payment date on August 15.
"REORGANIZATION EVENT" has the meaning specified in Section 12.04(a).
"RESTRICTED SECURITIES" has the meaning specified in Section 2.03.
"RESTRICTED SECURITIES LEGEND" has the meaning specified in Section 2.03.
"RULE 144A" means Rule 144A under the Securities Act.
"SCHEDULED TRADING DAY" means a day that is scheduled to be a Trading Day
on the primary U.S. national securities exchange or market on which the Common
Stock is listed or admitted for trading.
"SECURITIES" has the meaning ascribed to it in the second introductory
paragraph of this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"SECURITIES CUSTODIAN" means the custodian with respect to the Global
Security (as appointed by DTC), or any successor Person thereto and shall
initially be the Trustee.
"SECURITIES REGISTER" has the meaning specified in Section 2.05.
9
"SETTLEMENT AMOUNT" has the meaning specified in Section 12.01(c).
"SHELF REGISTRATION STATEMENT" shall have the meaning contemplated by and
in accordance with the terms of the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a "Significant
Subsidiary" of the Company within the meaning of Rule 1-02 under Regulation S-X
promulgated by the Commission.
"SPECIAL INTEREST PAYMENT DATE" has the meaning specified in Section
2.15(a).
"SPECIAL RECORD DATE" has the meaning specified in Section 2.15(a).
"SPIN OFF" has the meaning specified in Section 12.02(c).
"STATED MATURITY" means, with respect to any security, the date specified
in such security as the fixed date on which the payment of principal of such
security is due and payable, including pursuant to any mandatory redemption
provision, but shall not include any contingent obligations to repay, redeem or
repurchase any such principal prior to the date originally scheduled for the
payment thereof.
"STOCK PRICE" means, for purposes of Section 12.03, the price per share of
Common Stock paid in connection with a Fundamental Change pursuant to clause
(1), (2) or (5) of the definition of "Fundamental Change", which shall be equal
to (i) if such Fundamental Change is a transaction pursuant to clause (2) of the
definition thereof, and holders of Common Stock receive only cash in such
transaction, the cash amount paid per share of Common Stock and (ii) in all
other cases, the average of the Last Reported Sale Prices of the Common Stock
over the five Trading Day period ending on the Trading Day preceding the
Effective Date of such Fundamental Change.
"SUBSIDIARY" of the Company means (i) a corporation a majority of whose
Capital Stock with voting power, under ordinary circumstances, to elect
directors is at the time, directly or indirectly, owned by the Company, by the
Company and one or more Subsidiaries of the Company or by one or more
Subsidiaries of the Company or (ii) any other Person (other than a corporation)
in which the Company, one or more Subsidiaries of the Company or the Company and
one or more Subsidiaries of the Company, directly or indirectly, at the date of
determination thereof, has greater than a 50% ownership interest.
"SUBSIDIARY GUARANTEE" means, individually, any Guarantee of the Guaranteed
Obligations by a Subsidiary Guarantor pursuant to the terms of this Indenture
and any supplemental indenture hereto, and, collectively, all such Guarantees.
"SUBSIDIARY GUARANTOR" means each domestic Subsidiary of the Company that
is a party to the Credit Agreement as of the Issue Date or becomes a party to
the Credit Agreement on any subsequent date during the life of the Securities,
whether as a borrower, co-borrower or guarantor.
10
"SUCCESSOR COMPANY" has the meaning specified in Section 4.01(a).
"TIA" means the Trust Indenture Act of 1939, as in effect on the date of
this Indenture, except as provided in Section 9.03.
"TRADING DAY" means:
(a) for the purposes of Section 12.01(a), a day during which (i) trading in
the Common Stock generally occurs on the primary U.S. national securities
exchange or market on which the Common Stock is listed or admitted for trading,
(ii) there is no Market Disruption Event and (iii) a Last Reported Sale Price
for the Common Stock is available on the primary U.S. national securities
exchange or market on which the Common Stock of the Company is listed or
admitted for trading; and
(b) for every other purpose, a day during which (i) trading in the Common
Stock generally occurs on the primary U.S. national securities exchange or
market on which the Common Stock is listed or admitted for trading and (ii)
there is no Market Disruption Event.
"TRADING PRICE" of the Securities on any date of determination means the
average of the secondary market bid quotations obtained by the Bid Solicitation
Agent for $5,000,000 aggregate principal amount of the Securities at
approximately 3:30 p.m., New York City time, on such determination date from
three independent nationally recognized securities dealers selected by the
Company; provided that, only two such bids can reasonably be obtained, then the
average of the two bids shall be used, and if only one such bid can reasonably
be obtained, that one bid shall be used. If the Bid Solicitation Agent cannot
reasonably obtain at least one bid for $5,000,000 aggregate principal amount of
the Securities, then, for purposes of Section 12.01(a)(ii) only, the Trading
Price per $1,000 principal amount of Securities will be deemed to be less than
103% of the product of the Last Reported Sale Price of the Common Stock and the
applicable Conversion Rate.
"TRUST OFFICER" means, when used with respect to the Trustee, the officer
within the corporate trust department of the Trustee having direct
responsibility for the administration of this Indenture.
"TRUSTEE" means the party named as such in this Indenture until a successor
replaces it and, thereafter, means the successor.
"UCC" means the Uniform Commercial Code as in effect in the State of New
York.
Section 1.02. Incorporation by Reference of TIA. This Indenture is subject
to the mandatory provisions of the TIA which are incorporated by reference in
and made a part of this Indenture. The following TIA terms have the following
meanings:
"COMMISSION" means the United States Securities and Exchange Commission.
"INDENTURE SECURITIES" means the Securities.
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"INDENTURE SECURITY HOLDER" means a Holder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company and any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by Commission rule
have the meanings assigned to them by such definitions.
Section 1.03. Rules of Construction. Unless the context otherwise
requires:(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it
in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the plural
include the singular;
(f) the principal amount of any non-interest bearing or other discount
security at any date shall be the principal amount thereof that would be shown
on a balance sheet of the issuer dated such date prepared in accordance with
GAAP; and
(g) the principal amount of any Preferred Stock shall be the greater of (i)
the maximum liquidation value of such Preferred Stock and (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock.
ARTICLE 2
THE SECURITIES
Section 2.01. Title; Amount and Issue of Securities; Principal and
Interest. The Securities shall be known and designated as the "5.00% Convertible
Senior Notes due 2036" of the Company. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
initially limited to $75,000,000, except for Securities authenticated and
delivered upon registration of, transfer of, or in exchange for, or in lieu of
other Securities pursuant to Section 2.03, 2.04, 2.08 2.09, 2.10, 2.11, 2.13,
5.07, 9.05, 11.03, or 12.01. The Securities shall be issuable in denominations
of $1,000 or multiples thereof.
(a) The Securities shall mature on August 15, 2036, unless earlier
converted, redeemed or repurchased in accordance with the provisions hereof.
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(b) Interest on the Securities shall accrue from and including the date
specified on the face of such Securities until the principal thereof is paid or
made available for payment. Interest shall be payable semiannually in arrears on
February 15 and August 15 in each year, commencing February 15, 2007.
(c) The Securities shall be jointly and severally Guaranteed by the
Subsidiary Guarantors as provided in Article 10.
(d) A Holder of any Security at 5:00 p.m., New York City time, on a Regular
Record Date shall be entitled to receive interest (including any Additional
Interest), on such Security on the corresponding interest payment date,
notwithstanding the conversion of such Securities at any time after 5:00 p.m.,
New York City time, on such Regular Record Date. Securities surrendered for
conversion during the period after 5:00 p.m., New York City time, on any Regular
Record Date to 9:00 a.m., New York City time, on the corresponding interest
payment date must be accompanied by payment of an amount equal to the interest
(including any Additional Interest) that the Holder is to receive on the
Securities. Notwithstanding the foregoing, no such payment of interest
(including any Additional Interest) need be made by any converting Holder (i) if
the Company has specified a Redemption Date that is after a Regular Record Date
and on or prior to the third Trading Day after the corresponding interest
payment date, (ii) if the Company has specified a Fundamental Change Purchase
Date that is after a Regular Record Date and on or prior to the third Trading
Day after the corresponding interest payment date, or (iii) to the extent of any
overdue interest (including any Additional Interest) existing at the time of
conversion of such Security. Except as described above, no interest or
Additional Interest on converted Securities will be payable by the Company on
any interest payment date subsequent to the date of conversion and delivery of
the cash and shares of Common Stock, if applicable, pursuant to Article 12
hereunder, together with any cash payment for any fractional share, upon
conversion will be deemed to satisfy in full the Company's obligation to pay the
principal amount of the Securities and accrued and unpaid interest and
Additional Interest, if any, to, but not including, the related Conversion Date.
(e) Principal of and interest (including Additional Interest, if any) on
Global Securities shall be payable to DTC in immediately available funds.
(f) Principal on Definitive Securities shall be payable at the office or
agency of the Company maintained for such purpose, which initially shall be the
corporate trust office of the Trustee at its agency in New York, New York.
Interest (including Additional Interest, if any) on Definitive Securities will
be payable (i) to Holders having an aggregate principal amount of $5,000,000 or
less, by check mailed to the Holders of these Securities and (ii) to Holders
having an aggregate principal amount of more than $5,000,000, either by check
mailed to each Holder or, upon application by a Holder to the Registrar not
later than the relevant Regular Record Date, by wire transfer in immediately
available funds to such Holder's account within the United States, which
application shall remain in effect until the Holder notifies, in writing, the
Registrar to the contrary.
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Section 2.02. Form of Securities. Except as otherwise provided pursuant to
this Section 2.02, the Securities are issuable in fully registered form without
coupons in substantially the form of Exhibit A hereto, with such applicable
legends as are provided for in Section 2.03. The Securities are not issuable in
bearer form. The terms and provisions contained in the form of Security shall
constitute, and are hereby expressly made, a part of this Indenture and to the
extent applicable, the Company, the Subsidiary Guarantors and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby. Any of the Securities may have such
letters, numbers or other marks of identification and such notations, legends
and endorsements as the officers executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent
with the provisions of this Indenture, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange or automated quotation system on which the
Securities may be listed or designated for issuance, or to conform to usage.
The Securities shall be issued initially in the form of one or more
permanent Global Securities, with the applicable legends as provided in Section
2.03. Each Global Security shall be duly executed by the Company and
authenticated and delivered by the Trustee, and shall be registered in the name
of DTC or its nominee and retained by the Trustee, as Securities Custodian, at
its corporate trust office, for credit to the accounts of the Agent Members
holding the Securities evidenced thereby. The aggregate principal amount of the
Global Securities may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as Securities Custodian, and of DTC or its
nominee, as hereinafter provided.
Section 2.03. Legends. Each Security issued hereunder shall, upon issuance,
bear the legend set forth in Section 2.03(i), and each Common Stock certificate
representing shares of the Common Stock issued upon conversion of any Security
issued hereunder, shall, upon issuance, unless as otherwise set forth below,
bear the legend set forth in Section 2.03(ii) (each such legend, a "RESTRICTED
SECURITIES LEGEND"), and such legend shall not be removed except as provided in
Section 2.03(iii). Each Security that bears or is required to bear the
Restricted Securities Legend set forth in Section 2.03(i) (together with each
Common Stock certificate representing shares of the Common Stock issued upon
conversion of such Security that bears or is required to bear the Restricted
Securities Legend set forth in Section 2.03(ii), collectively, the "RESTRICTED
SECURITIES") shall be subject to the restrictions on transfer set forth in this
Section 2.03 (including the Restricted Securities Legend set forth below), and
the Holder of each such Restricted Security, by such Holder's acceptance
thereof, shall be deemed to have agreed to be bound by all such restrictions on
transfer.
As used in Section 2.03, the term "transfer" encompasses any sale, pledge,
transfer or other disposition whatsoever of any Restricted Security.
(i) Restricted Securities Legend for Securities. Except as
provided in Section 2.03(iii), any certificate evidencing such
Security (and all Securities issued in exchange therefor or
substitution thereof, other than stock certificates representing
shares of the Common Stock, if any, issued upon conversion thereof
which shall bear
14
the legend set forth in Section 2.03(ii), if applicable) shall bear a
Restricted Securities Legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR A BENEFICIAL INTEREST
HEREIN, THE HOLDER AGREES (1) THAT IT WILL NOT WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THE
SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF
SUCH SECURITY, EXCEPT (A) TO THE COMPANY; (B) UNDER A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT; (C)
ONLY WITH RESPECT TO THIS SECURITY, TO A PERSON THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
ADOPTED UNDER THE SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN
COMPLIANCE WITH RULE 144A (IF AVAILABLE); OR (D) UNDER ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (2)
THAT IT WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY, WITHIN TWO YEARS
AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, FURNISH TO THE TRUSTEE AND
THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS MAY
BE REQUIRED PURSUANT TO THE INDENTURE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT."
(ii) Restricted Securities Legend for the Common Stock Issued
Upon Conversion of the Securities. Each stock certificate representing
Common Stock issued upon conversion of Securities bearing a Restricted
Securities Legend will, subject to the availability of a Shelf
Registration Statement and registration thereunder as set forth in the
Registration Rights Agreement, bear the following legend:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER AGREES (1) THAT IT WILL NOT, WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THE NOTES UPON THE CONVERSION OF WHICH
THIS SECURITY WAS ISSUED, RESELL OR OTHERWISE TRANSFER THE SECURITY
EVIDENCED HEREBY, EXCEPT (A) TO THE ISSUER; (B) UNDER A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
15
ACT; OR (C) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT; AND (2) AGREES THAT IT WILL, PRIOR TO
ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE
OF THE NOTES UPON THE CONVERSION OF WHICH THIS SECURITY WAS ISSUED, FURNISH
TO THE TRANSFER AGENT AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS MAY BE REQUIRED TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT."
(iii) Removal of the Restricted Securities Legends. The
Restricted Securities Legend may be removed from any Security or any
Common Stock certificate representing shares of the Common Stock
issued upon conversion of any Security if there is delivered to the
Company such satisfactory evidence, which may include an opinion of
independent counsel, as may be reasonably required by the Company,
that neither such legend nor the restrictions on transfer set forth
therein are required to ensure that transfers of such Security or
shares of the Common Stock issued upon conversion of Securities, as
the case may be, will not violate the registration requirements of the
Securities Act or the qualification requirements under any state
securities laws. Upon provision of such satisfactory evidence, at the
written direction of the Company, (x) in the case of a Security, the
Trustee shall authenticate and deliver in exchange for such Security
another Security or Securities having an equal aggregate principal
amount that does not bear such legend or (y) in the case of a Common
Stock certificate representing shares of the Common Stock, the
transfer agent for the Common Stock shall counter-sign and deliver in
exchange for the Common Stock certificate or certificates representing
such shares of Common Stock bearing such legend, one or more new
Common Stock certificates representing a like aggregate number of
shares of Common Stock that do not bear such legend. If the Restricted
Securities Legend has been removed from a Security or Common Stock
certificates representing shares of the Common Stock issued upon
conversion of any Security as provided above, no other Security issued
in exchange for all or any part of such Security, or no other Common
Stock certificates issued in exchange for such Common Stock, shall
bear such legend, unless the Company has reasonable cause to believe
that such other Security is a "restricted security" (or such shares of
Common Stock are "restricted securities") within the meaning of Rule
144 and instructs the Trustee or the transfer agent for the Common
Stock, as applicable, in writing to cause a Restricted Securities
Legend to appear thereon.
Any Security (or Security issued in exchange or substitution therefor) as
to which the conditions for removal of the Restricted Securities Legend set
forth in Section 2.03(i) as set forth therein have been satisfied may, upon
surrender of such Security for exchange to the Registrar in accordance with the
provisions of Section 2.08, be exchanged for a new Security or Securities, of
like tenor and aggregate principal amount, which shall not bear the Restricted
Securities Legend required by Section 2.03(i).
16
Any Common Stock certificate representing shares of Common Stock issued
upon conversion of any Security as to which the conditions for removal of the
Restricted Securities Legend set forth in Section 2.03(ii) have been satisfied
may, upon surrender of the Common Stock certificates representing such shares of
Common Stock for exchange in accordance with the procedures of the transfer
agent for the Common Stock, be exchanged for a new Common Stock certificate or
certificates representing a like aggregate number of shares of Common Stock,
which shall not bear the Restricted Securities Legend.
(iv) Global Security Legend. Each Global Security shall also bear
the following legend (the "GLOBAL SECURITY LEGEND") on the face
thereof:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE INDENTURE REFERRED TO IN THE TERMS OF SECURITIES ATTACHED HERETO."
Section 2.04. Execution and Authentication. One Officer shall sign the
Securities for the Company by manual or facsimile signature. If an Officer whose
signature is on a Security no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of the Trustee
manually authenticates the Security. Upon the written order of the Company
signed by an Officer of the Company (a "COMPANY ORDER"), the Trustee shall
authenticate a Security executed by the Company. The signature of the Trustee on
a Security shall be conclusive evidence that such Security has been duly and
validly authenticated and issued under this Indenture. A Security shall be dated
the date of its authentication.
The Trustee may appoint an agent (the "AUTHENTICATING AGENT") reasonably
acceptable to the Company to authenticate the Securities. Any such instrument
shall be evidenced by an instrument signed by a Trust Officer of the Trustee, a
copy of which shall be furnished to the
17
Company. Unless limited by the terms of such appointment, any such
Authenticating Agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by the Authenticating Agent. An Authenticating Agent has the same
rights as any Registrar, Paying Agent or agent for service of notices and
demands.
In case the Company or any Subsidiary Guarantor, pursuant to Article 4,
shall be consolidated or merged with or into any other Person or shall convey,
transfer, lease or otherwise dispose of its properties and assets substantially
as an entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company or any
Subsidiary Guarantor shall have been merged, or the Person which shall have
received a conveyance, transfer, lease or other disposition as aforesaid, shall
have executed an indenture supplemental hereto with the Trustee pursuant to
Article 4, any of the Securities authenticated or delivered prior to such
consolidation, merger, conveyance, transfer, lease or other disposition may,
from time to time, at the request of the successor Person, be exchanged for
other Securities executed in the name of the successor Person with such changes
in phraseology and form as may be appropriate, but otherwise in substance of
like tenor as the Securities surrendered for such exchange and of like principal
amount; and the Trustee, upon Company Order of the successor Person, shall
authenticate and deliver Securities as specified in such order for the purpose
of such exchange. If Securities shall at any time be authenticated and delivered
in any new name of a successor Person pursuant to this Section 2.04 in exchange
or substitution for or upon registration of transfer of any Securities, such
successor Person, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time outstanding for
Securities authenticated and delivered in such new name.
Section 2.05. Registrar and Paying Agent. The Company shall maintain an
office or agency where Securities may be presented for registration of transfer
or for exchange (the "REGISTRAR") and an office or agency where Securities may
be presented for payment (the "PAYING AGENT"). The Registrar shall keep a
register of the Securities and of their transfer and exchange (the "SECURITIES
REGISTER"). The Company may have one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional paying
agent and the term "Registrar" includes any co-registrar.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of each such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any of its domestically organized, wholly owned Subsidiaries may act
as Paying Agent, Registrar, co registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying Agent
for the Securities. The Company may remove any Registrar or Paying Agent upon
written notice to such Registrar or Paying Agent and to the Trustee; provided,
however, that no such removal shall
18
become effective until (i) acceptance of any appointment by a successor as
evidenced by an appropriate agreement entered into by the Company and such
successor Registrar or successor Paying Agent, as the case may be, and delivered
to the Trustee or (ii) notification to the Trustee that the Trustee shall serve
as Registrar or Paying Agent until the appointment of a successor in accordance
with clause (i) above. The Registrar or Paying Agent may resign at any time upon
written notice to the Company and the Trustee.
Section 2.06. Paying Agent to Hold Money in Trust. By no later than 11:00
a.m., New York City time, on the date on which any principal of or interest
(including any Additional Interest) on any Security is due and payable, the
Company shall deposit with the Paying Agent a sum sufficient in immediately
available funds to pay such principal or interest (including any Additional
Interest), when due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that such Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by such Paying Agent for the
payment of principal of or interest (including any Additional Interest) on the
Securities and shall notify the Trustee in writing of any default by the Company
in making any such payment. If the Company or a Subsidiary acts as Paying Agent,
it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying Agent (other
than the Trustee) to pay all money held by it to the Trustee and to account for
any funds disbursed by such Paying Agent. Upon complying with this Section 2.06,
the Paying Agent (if other than the Company or a Subsidiary) shall have no
further liability for the money delivered to the Trustee. Upon any bankruptcy,
reorganization or similar proceeding with respect to the Company, the Trustee
shall serve as Paying Agent for the Securities.
Section 2.07. Holder Lists. The Trustee shall preserve in as current a form
as is reasonably practicable the most recent list available to it of the names
and addresses of Holders and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, or to the extent otherwise required under the
TIA, the Company, on its own behalf and on behalf of each of the Subsidiary
Guarantors, shall furnish or cause the Registrar to furnish to the Trustee, in
writing at least five 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 Holders and the Company shall otherwise comply with TIA Section 312(a).
Section 2.08. General Provisions Relating to Transfer and Exchange. The
Securities are issuable only in registered form. A Holder may transfer a
Security only by written application to the Registrar stating the name of the
proposed transferee and otherwise complying with the terms of this Indenture. No
such transfer shall be effected until, and such transferee shall succeed to the
rights of a Holder only upon, final acceptance and registration of the transfer
by the Registrar in the Securities Register. Furthermore, any Holder of a Global
Security shall, by acceptance of such Global Security, agree that transfers of
beneficial interests in such Global Security may be effected only through a
book-entry system maintained by the Holder of such Global Security (or its
agent) and that ownership of a beneficial interest in the Global Security shall
be required to be reflected in a book-entry.
19
When Securities are presented to the Registrar with a request to register
the transfer or to exchange them for an equal aggregate principal amount of
Securities of other authorized denominations, the Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transactions are met (including that such Securities are duly endorsed or
accompanied by a written instrument of transfer duly executed by the Holder
thereof or by an attorney who is authorized in writing to act on behalf of the
Holder). Subject to Section 2.04, to permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Registrar's request. No service charge shall be made for any
registration of transfer or exchange or redemption of the Securities, but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any such
transfer taxes or other similar governmental charge payable upon exchanges in
connection with which a Security is issued to a Person other than the Holder
submitting the Security for exchange).
Neither the Company nor the Registrar shall be required to exchange or
register a transfer of any Securities:
(a) for a period of 15 calendar days prior to the mailing of a notice of
redemption of Securities selected for redemption under Article 5;
(b) so selected for redemption or, if a portion of any Security is selected
for redemption, the portion thereof selected for redemption; or
(c) surrendered for conversion or, if a portion of any Security is
surrendered for conversion, the portion thereof surrendered for conversion.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between beneficial owners of any Global
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
Section 2.09. Book-Entry Provisions for the Global Securities. (a) The
Global Securities initially shall:
(i) be registered in the name of DTC (or a nominee thereof);
(ii) be delivered to the Trustee as Securities Custodian;
(iii) bear the Restricted Securities Legend set forth in Section
2.03(i); and
(iv) bear the Global Security Legend set forth in Section 2.03(iv).
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Members of, or participants in, DTC ("AGENT MEMBERS") shall have no rights
under this Indenture with respect to any Global Security held on their behalf by
DTC, or the Trustee as its custodian, or under such Global Security, and DTC may
be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing contained herein shall
prevent the Company, the Trustee or any agent of the Company or Trustee from
giving effect to any written certification, proxy or other authorization
furnished by DTC or impair, as between DTC and the Agent Members, the operation
of customary practices governing the exercise of the rights of a Holder of any
Security.
(b) The Holder of a Global Security may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
(c) A Global Security may not be transferred, in whole or in part, to any
Person other than DTC (or a nominee thereof), and no such transfer to any such
other Person may be registered. Beneficial interests in a Global Security may be
transferred in accordance with the rules and procedures of DTC and the
provisions of Section 2.10.
(d) If at any time:
(i) DTC notifies the Company in writing that it is unwilling or unable
to continue to act as depositary for the Global Securities and a successor
depositary for the Global Securities is not appointed by the Company within
90 days of such notice;
(ii) DTC ceases to be registered as a "clearing agency" under the
Exchange Act and a successor depositary for the Global Securities is not
appointed by the Company within 90 days of such cessation;
(iii) the Company, at its option, notifies the Trustee in writing that
it elects to cause the issuance of the Definitive Securities under this
Indenture in exchange for all or any part of the Securities represented by
a Global Security or Global Securities, subject to the procedures of DTC;
or
(iv) an Event of Default has occurred and is continuing and the
Registrar has received a request from DTC or the Company for the issuance
of Definitive Securities in exchange for such Global Security or Global
Securities;
DTC shall surrender such Global Security or Global Securities to the Trustee for
cancellation and the Company shall execute, and the Trustee, upon receipt of an
Officers' Certificate and Company Order for the authentication and delivery of
Securities, shall authenticate and make available for delivery in exchange for
such Global Security or Global Securities, Definitive Securities in an aggregate
principal amount equal to the aggregate principal amount of such Global Security
or Global Securities. Such Definitive Securities shall be registered in such
21
names as DTC shall identify in writing as the beneficial owners of the
Securities represented by such Global Security or Global Securities (or any
nominee thereof).
(e) Notwithstanding the foregoing, in connection with any transfer of
beneficial interests in a Global Security to the beneficial owners thereof
pursuant to Section 2.09(d), the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of such Global Security
in an amount equal to the principal amount of the beneficial interests in such
Global Security to be transferred.
Section 2.10. Special Transfer Provisions. Unless a Security is no longer a
Restricted Security, the following provisions shall apply to any sale, pledge or
other transfer of such Securities:
(a) Transfer of Securities to a QIB. The following provisions shall apply
with respect to the registration of any proposed transfer of Securities to a
QIB:
(i) If the Securities to be transferred consist of a beneficial
interest in the Global Securities, the transfer of such interest may be
effected only through the book-entry systems maintained by DTC.
(ii) If the Securities to be transferred consist of Definitive
Securities, the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for on
the form of Security stating (or has otherwise advised the Company and the
Registrar in writing) that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed a certification
stating or has otherwise advised the Company and the Registrar in writing
that:
(A) it is purchasing the Securities for its own account or an
account with respect to which it exercises sole investment discretion;
(B) it and any such account is a QIB within the meaning of Rule
144A;
(C) it is aware that the sale to it is being made in reliance on
Rule 144A;
(D) it acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or has
determined not to request such information; and
(E) it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A.
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(b) General. By its acceptance of any Security bearing the Restricted
Securities Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and agrees that it will
transfer such Security only as provided in this Indenture. The Registrar shall
not register a transfer of any Security unless such transfer complies with the
restrictions on transfer of such Security set forth in this Indenture. The
Registrar shall be entitled to receive and rely on written instructions from the
Company verifying that such transfer complies with such restrictions on
transfer. In connection with any transfer of Securities, each Holder agrees by
its acceptance of the Securities to furnish the Registrar or the Company such
certifications, legal opinions or other information as either of them may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act; provided that the Registrar shall not be required to
determine (but may rely on a determination made by the Company with respect to)
the sufficiency of any such certifications, legal opinions or other information.
The Registrar shall retain copies of all certifications, letters, notices
and other written communications received pursuant to Section 2.09 hereof or
this Section 2.10. The Company shall have the right to inspect and make copies
of all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Registrar.
Section 2.11. Mutilated, Destroyed, Lost or Stolen Securities. If a
mutilated Security is surrendered to the Registrar or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Security if the requirements of Section 8-405 of the UCC are met, such that the
Holder (a) notifies the Company or the Trustee within a reasonable time after
such Holder has notice of such loss, destruction or wrongful taking and the
Registrar has not registered a transfer prior to receiving such notification,
(b) makes such request to the Company or Trustee prior to the Security being
acquired by a protected purchaser as defined in Section 8-303 of the UCC and (c)
satisfies any other reasonable requirements of the Trustee. Such Holder shall
furnish an indemnity bond sufficient in the judgment of the Company and the
Trustee to protect the Company, the Trustee, the Paying Agent and the Registrar
from any loss which any of them may suffer if a Security is replaced, and, in
the absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon Company
Order the Trustee shall authenticate and make available for delivery, in
exchange for any such mutilated Security or in lieu of any such destroyed, lost
or stolen Security, a new Security of like tenor and principal amount, bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
due and payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security.
Upon the issuance of any new Security under this Section 2.11, the Company
may require the payment by the Holder of a sum sufficient to cover any tax or
other governmental charge that
23
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) in connection therewith.
Every new Security issued pursuant to this Section 2.11 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company and any other obligor upon the
Securities, whether or not the mutilated, destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all
benefits of this Indenture equally and ratably with any and all other Securities
duly issued hereunder.
The provisions of this Section 2.11 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.12. Outstanding Securities. Securities outstanding at any time
are all Securities authenticated by the Trustee except for those cancelled by
it, those delivered to it for cancellation and those described in this Section
2.12 as not outstanding. A Security does not cease to be outstanding in the
event the Company or a Subsidiary of the Company holds the Security; provided,
however, that (i) for purposes of determining which Securities are outstanding
for consent or voting purposes hereunder, the provisions of Section 13.06 shall
apply and (ii) in determining whether the Trustee shall be protected in making a
determination whether the Holders of the requisite principal amount of
outstanding Securities are present at a meeting of Holders of Securities for
quorum purposes or have consented to or voted in favor of any request, demand,
authorization, direction, notice, consent, waiver, amendment or modification
hereunder, or relying upon any such quorum, consent or vote, only Securities
which a Trust Officer of the Trustee actually knows to be held by the Company or
an Affiliate of the Company shall not be considered outstanding.
If a Security is replaced or paid pursuant to Section 2.11, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with this
Indenture, on a Redemption Date, Purchase Date, Fundamental Change Purchase Date
or at Stated Maturity, money sufficient to pay all principal and interest
(including any Additional Interest) payable on that date with respect to the
Securities (or portions thereof) to be redeemed, purchased or maturing, as the
case may be, and the Paying Agent is not prohibited from paying such money to
the Holders on that date pursuant to the terms of this Indenture, then on and
after that date such Securities (or portions thereof) cease to be outstanding
and interest on them ceases to accrue.
Section 2.13. Temporary Securities. In the event that Definitive
Securities are to be issued under the terms of this Indenture, until such
Definitive Securities are ready for delivery, the Company may prepare and upon
receipt of a Company Order the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of Definitive Securities
but may have variations that the Company considers appropriate for temporary
24
Securities. Without unreasonable delay, the Company shall prepare and upon
receipt of a Company Order the Trustee shall authenticate Definitive Securities.
After the preparation of Definitive Securities, the temporary Securities shall
be exchangeable for Definitive Securities upon surrender of the temporary
Securities at any office or agency maintained by the Company for that purpose
and such exchange shall be without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute,
and the Trustee shall authenticate and make available for delivery in exchange
therefor, one or more Definitive Securities representing an equal principal
amount of Securities. Until so exchanged, the Holder of temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as a
Holder of Definitive Securities.
Section 2.14. Cancellation. The Company at any time may deliver Securities
to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee any Securities surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancellation and dispose of such Securities in accordance with its internal
policies and customary procedures including delivery of a certificate (a
"CERTIFICATE OF DESTRUCTION") describing such Securities disposed (subject to
the record retention requirements of the Exchange Act) or deliver canceled
Securities to the Company pursuant to written direction by an Officer. The
Company may not issue new Securities to replace Securities it has paid for or
delivered to the Trustee for cancellation for any reason other than in
connection with a transfer or exchange.
At such time as all beneficial interests in a Global Security have either
been exchanged for Definitive Securities, transferred, redeemed, repurchased or
canceled, such Global Security shall be returned by DTC to the Trustee for
cancellation or retained and canceled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Security is exchanged for
Definitive Securities, transferred in exchange for an interest in another Global
Security, redeemed, repurchased or canceled, the principal amount of Securities
represented by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee (if it is then the Securities
Custodian for such Global Security) with respect to such Global Security, by the
Trustee or the Securities Custodian, to reflect such reduction.
Section 2.15. Payment of Interest; Defaulted Interest. Interest (including
any Additional Interest) on any Security which is payable, and is punctually
paid or duly provided for, on any interest payment date shall be paid to the
Person in whose name such Security (or one or more predecessor Securities) is
registered at 5:00 p.m., New York City time, on the Regular Record Date for such
payment at the office or agency of the Company maintained for such purpose
pursuant to Section 2.05; provided, however, that interest will be paid at the
Stated Maturity only to the Person to whom the principal amount is paid.
Any interest on any Security which is payable, but is not paid when the
same becomes due and payable and such nonpayment continues for a period of 30
calendar days, shall forthwith cease to be payable to the Holder on the Regular
Record Date, and such defaulted interest and (to the extent lawful) interest on
such defaulted interest at the annual rate borne by the Securities plus 1% (such
defaulted interest and interest thereon herein collectively called "DEFAULTED
25
INTEREST") shall be paid by the Company at its election, in each case, as
provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities (or their respective predecessor
Securities) are registered at 5:00 p.m., New York City time, on a Special Record
Date (as defined below) for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each Security
and the date (not less than 30 calendar days after such notice) of the proposed
payment (the "SPECIAL INTEREST PAYMENT DATE"), and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a record date (the "SPECIAL RECORD
DATE") for the payment of such Defaulted Interest which shall be not more than
15 calendar days and not less than 10 calendar days prior to the Special
Interest Payment Date and not less than 10 calendar days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date, and in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date and Special Interest Payment Date
therefor to be given in the manner provided for in Section 13.02, not less than
10 calendar days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date and Special
Interest Payment Date therefor having been so given, such Defaulted Interest
shall be paid on the Special Interest Payment Date to the Persons in whose names
the Securities (or their respective predecessor Securities) are registered at
5:00 p.m., New York City time, on such Special Record Date and shall no longer
be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.15, each Security
delivered under this Indenture upon registration of, transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest
(including any Additional Interest) accrued and unpaid, and to accrue, which
were carried by such other Security.
Section 2.16. Computation of Interest. Interest (including any Additional
Interest) on the Securities shall be computed on the basis of a 360-day year of
twelve 30-day months; provided, however, that for any period other than a full
interest period, interest will be computed on the basis of the actual number of
days elapsed during the period and a 365-day year.
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Section 2.17. CUSIP and ISIN Numbers. The Company in issuing the
Securities may use "CUSIP" and "ISIN" numbers (if then generally in use) and, if
so, the Trustee shall use "CUSIP" and "ISIN" numbers in notices of redemption as
a convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such CUSIP or ISIN numbers. The Company shall promptly notify the
Trustee in writing of any change in the CUSIP and ISIN numbers.
ARTICLE 3
COVENANTS
Section 3.01. Payment of Securities. The Company shall promptly pay the
principal of and interest (including any Additional Interest) on the Securities
on the dates and in the manner provided in the Securities and in this Indenture.
Principal and interest (including any Additional Interest) shall be considered
paid on the date due if on such date the Trustee or the Paying Agent holds in
accordance with this Indenture immediately available funds sufficient to pay all
principal and interest (including any Additional Interest) then due and the
Trustee or the Paying Agent, as the case may be, is not prohibited from paying
such money to the Holders on that date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the annual rate
borne by the Securities plus 1%, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
Notwithstanding anything to the contrary contained in this Indenture, the
Company may, to the extent it is required to do so by law, deduct or withhold
income or other similar taxes imposed by the United States of America from
principal or interest (including any Additional Interest) payments hereunder.
Section 3.02. Financial Statements. (a) In the event and for so long as
the Company is not subject to Section 13 or 15(d) of the Exchange Act, it shall,
so long as any of the Securities or Common Stock issuable upon conversion of the
Securities shall, at such time, constitute "restricted securities" within the
meaning of Rule 144(a)(3) under the Securities Act, promptly provide to the
Trustee and shall, upon written request, provide to any Holder, beneficial owner
or prospective purchaser of the Securities or the Common Stock issued upon
conversion of the Securities, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such
Securities or Common Stock pursuant to Rule 144A.
(b) The Company covenants and agrees to provide to the Trustee such
reports, information and documents, if any, as required by TIA Section 314(a).
(c) Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive
27
notice of any information contained therein or determinable from information
contained therein, including the Company's compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
Section 3.03. Future Subsidiary Guarantors. After the Issue Date, the
Company will cause each domestic Subsidiary that becomes a party to the Credit
Agreement, whether as a borrower, a co-borrower or a guarantor, to execute and
deliver to the Trustee a supplemental indenture substantially in the form of
Exhibit B pursuant to which such Subsidiary will become a Subsidiary Guarantor
and fully and unconditionally Guarantee, jointly and severally with the other
Subsidiary Guarantors, the Guaranteed Obligations, as provided under Article 10.
Section 3.04. Maintenance of Office or Agency. The Company will maintain
an office or agency where the Securities may be presented or surrendered for
payment, where, if applicable, the Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind any such designation. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and any change in the location of any such other office or agency.
Section 3.05. Corporate Existence. Except as otherwise provided in Article
4, the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect (i) its corporate existence and (ii) the material
rights (charter and statutory), licenses and franchises of the Company, except,
in the case of clause (ii), to the extent the Board of Directors otherwise
reasonably determines it no longer desirable.
Section 3.06. Payment of Taxes and Other Claims. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all material taxes, assessments and governmental charges levied
or imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary and (ii) all lawful claims for labor,
materials and supplies, which, if unpaid, might by law become a material
liability or lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which appropriate reserves, if necessary (in the good faith
judgment of management of the Company), are being maintained in accordance with
GAAP or where the failure to effect such payment will not be disadvantageous to
the Holders.
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Section 3.07. Compliance Certificate. The Company shall deliver to the
Trustee within 120 calendar days after the end of each fiscal year of the
Company a certificate of the principal executive officer, principal financial
officer or principal accounting officer of the Company, stating whether or not,
to the knowledge of such officer, any Default or Event of Default occurred
during such period and if so, describing each Default or Event of Default, its
status and the action the Company is taking or proposes to take with respect
thereto. The Company also shall comply with TIA Section 314(a)(4).
Section 3.08. Further Instruments and Acts. Upon request of the Trustee,
the Company will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
Section 3.09. Statement by Officers as to Default. The Company shall
deliver to the Trustee, as soon as possible and in any event within 30 calendar
days after the Company becomes aware of the occurrence of any Event of Default
or Default, an Officers' Certificate setting forth the details of such Event of
Default or Default, its status and the action which the Company proposes to take
with respect thereto.
Section 3.10. Additional Interest. If Additional Interest is payable by
the Company pursuant to the Registration Rights Agreement, the Company shall
deliver to the Trustee an Officers' Certificate to that effect stating (i) the
amount of such Additional Interest that is payable and (ii) the date on which
such Additional Interest is payable. Unless and until a Trust Officer of the
Trustee receives such a certificate, the Trustee may assume without inquiry that
no Additional Interest is payable. If the Company has paid Additional Interest
directly to the persons entitled to it, the Company shall deliver to the Trustee
an Officers' Certificate setting forth the particulars of such payment.
Section 3.11. 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 benefit or advantage of,
any stay, extension or usury law or other law which would prohibit or forgive
the Company from paying all or any portion of the principal of or interest
(including any Additional Interest) on the Securities as contemplated herein,
wherever enacted, now or at any time the Company (to the extent it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE 4
SUCCESSOR COMPANY
Section 4.01. Consolidation, Merger and Sale of Assets of the Company. The
Company shall not consolidate with or merge with or into, or convey, transfer,
sell, lease or dispose of all or substantially all its assets to, another Person
(if the Company is not the resulting, surviving or transferee Person), unless:
29
(a) the resulting, surviving or transferee Person (the "SUCCESSOR COMPANY")
is a corporation or limited liability company organized and existing under the
laws of the United States of America, any State thereof or the District of
Columbia and the Successor Company expressly assumes by supplemental indenture,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Securities, this Indenture and, to the
extent that it is otherwise still operative, by supplemental agreement all of
the Company's obligations under the Registration Rights Agreement;
(b) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, stating that such consolidation, merger,
conveyance, transfer, sale, lease or disposition complies with this Indenture.
For purposes of this Section 4.01, the conveyance, transfer, sale, lease or
disposition of all or substantially all of the properties and assets of one or
more Subsidiaries of the Company, which properties and assets, if held by the
Company instead of such Subsidiaries, would constitute all or substantially all
of the properties and assets of the Company on a consolidated basis, shall be
deemed to be the transfer of all or substantially all of the properties and
assets of the Company.
The Successor Company will succeed to, and be substituted for, and may
exercise every right and power of, the Company under the Securities and this
Indenture with the same effect as if such Successor Company had been named as
the Company in the Indenture. Upon such substitution, except in the case of a
lease, the Company will be released from the obligations under the Securities.
Section 4.02. Consolidation, Merger and Sale of Assets of the Subsidiary
Guarantors. Each Subsidiary Guarantor shall not consolidate with or merge with
or into, or convey, transfer, sell, lease or dispose of all or substantially all
its assets to, another Person (if such Subsidiary Guarantor is not the
resulting, surviving or transferee Person), unless:
(a) the Successor Company is a corporation or limited liability company
organized and existing under the laws of the United States of America, any State
thereof or the District of Columbia and the Successor Company expressly assumes
by supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of such Subsidiary Guarantor
under the Subsidiary Guarantee, this Indenture and, to the extent that it is
otherwise still operative, by supplemental agreement all of such Subsidiary
Guarantor's obligations under the Registration Rights Agreement;
(b) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing; and
30
(c) the Subsidiary Guarantor shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, stating that such
consolidation, merger, conveyance, transfer, sale, lease or disposition complies
with this Indenture.
The Successor Company will succeed to, and be substituted for, and may
exercise every right and power of, such Subsidiary Guarantor under such
Subsidiary Guarantee and this Indenture with the same effect as if such
Successor Company had been named as a Subsidiary Guarantor in the Indenture.
Upon such substitution, except in the case of a lease, the Subsidiary Guarantor
will be released from the obligations under the Subsidiary Guarantee.
ARTICLE 5
REDEMPTION OF SECURITIES
Section 5.01. Optional Redemption. Prior to August 20, 2011, the
Securities shall not be redeemable. On and after August 20, 2011, the Securities
may be redeemed, as a whole or from time to time in part, subject to the
conditions set forth herein, at a price (the "REDEMPTION PRICE") equal to 100%
of the principal amount of Securities to be redeemed, plus accrued and unpaid
interest (including any Additional Interest) to but excluding the Redemption
Date; provided that if the Redemption Date occurs after a Regular Record Date
for the payment of interest and on or prior to the related interest payment
date, the Redemption Price for any such Securities to be redeemed shall be 100%
of the principal amount of such Securities and accrued and unpaid interest
(including any Additional Interest) shall be paid to the Holder on such Regular
Record Date.
Section 5.02. Election to Redeem; Notice to Trustee. In case of any
redemption at the election of the Company, the Company shall, on or prior to the
date that is 15 calendar days prior to the date on which notice is given to the
Holders (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities to
be redeemed and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Securities to be redeemed pursuant to
Section 5.03. Any such notice may be cancelled at any time prior to notice of
such redemption being mailed to any Holder and shall thereby be void and of no
effect.
Section 5.03. Selection by Trustee of Securities to Be Redeemed. If less
than all the Securities are to be redeemed at any time pursuant to an optional
redemption, the particular Securities to be redeemed shall be selected by the
Trustee, from the outstanding Securities not previously called for redemption,
by lot or on a pro rata basis among the classes of Securities or by such other
method as the Trustee shall deem fair and appropriate (and in such manner as is
not prohibited by applicable legal requirements) and which may provide for the
selection for redemption of portions of the principal of the Securities;
provided, however, that no such partial redemption shall reduce the portion of
the principal amount of a Security not redeemed to less than $1,000.
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The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
If any Securities selected for partial redemption are thereafter
surrendered for conversion in part before termination of the conversion right
with respect to the portion of the Securities so selected, the converted portion
of such Securities shall be deemed (so far as may be), solely for purposes of
determining the aggregate principal amount of Securities to be redeemed by the
Company, to be the portion selected for redemption. Securities which have been
converted during a selection of Securities to be redeemed may be treated by the
Trustee as outstanding for the purpose of such selection. Nothing in this
Section 5.03 shall affect the right of any Holder to convert any Securities
pursuant to Article 12 before the termination of the conversion right with
respect thereto.
Section 5.04. Notice of Redemption. Notice of redemption shall be given in
the manner provided for in Section 13.02 not less than 45 nor more than 60
calendar days prior to the Redemption Date, to each Holder of Securities to be
redeemed. The Trustee shall give notice of redemption in the Company's name and
at the Company's expense; provided, however, that the Company shall deliver to
the Trustee an Officers' Certificate requesting that the Trustee give such
notice at the Company's expense and setting forth the information to be stated
in such notice as provided in the following items.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the then current Conversion Rate and the related Observation Period for
conversion of Securities, and provide a statement that the Securities called for
redemption may be converted at any time prior to 5:00 p.m., New York City time,
on the third Scheduled Trading Day prior to the Redemption Date, and that
Holders who wish to convert Securities must comply with the procedures in
Section 12.01(b) and paragraph 5 of the Securities;
(d) if less than all outstanding Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be redeemed,
as well as the aggregate principal amount of Securities to be redeemed and the
aggregate principal amount of Securities to be outstanding after such partial
redemption;
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(e) in case any Security is to be redeemed in part only, the notice which
relates to such Security shall state that on and after the Redemption Date, upon
surrender of such Security, the Holder will receive, without charge, a new
Security or Securities of authorized denominations for the principal amount
thereof remaining unredeemed;
(f) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security, or the portion thereof, to be redeemed, and,
unless the Company defaults in making the redemption payment, that interest
(including any Additional Interest) on Securities called for redemption (or the
portion thereof) will cease to accrue on and after said date;
(g) the place or places where such Securities are to be surrendered for
payment of the Redemption Price;
(h) the name and address of the Paying Agent and the Conversion Agent;
(i) that Securities called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price;
(j) the CUSIP or ISIN number, and that no representation is made as to the
accuracy or correctness of the CUSIP or ISIN number, if any, listed in such
notice or printed on the Securities; and
(k) the paragraph of the Securities pursuant to which the Securities are to
be redeemed.
Section 5.05. Deposit of Redemption Price. Prior to 11:00 a.m., New York
City time, on any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 2.06) an amount of money
sufficient to pay the Redemption Price (if such Redemption Price includes
accrued and unpaid interest (including any Additional Interest)) or Redemption
Price and accrued and unpaid interest (including any Additional Interest) (if
such Redemption Price does not include accrued and unpaid interest (including
any Additional Interest)) of all the Securities which are to be redeemed on that
date other than Securities or portions of Securities called for redemption that
are beneficially owned by the Company and have been delivered by the Company to
the Trustee for cancellation.
Section 5.06. Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price, and from and
after such date (unless the Company shall default in the payment of the
Redemption Price or accrued and unpaid interest (including any Additional
Interest)) such Securities shall cease to bear interest or Additional Interest.
Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price.
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If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest
(including any Additional Interest) from the Redemption Date at the rate borne
by the Securities plus 1%.
Section 5.07. Securities Redeemed in Part. Any Security which is to be
redeemed only in part (pursuant to the provisions of this Article 5) shall be
surrendered at the office or agency of the Company maintained for such purpose
pursuant to Section 3.04 (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 make available for delivery to the Holder of such
Security at the expense of the Company, a new Security or Securities, of any
authorized denomination as requested by such Holder, in an aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered; provided that each such new Security will be in a
principal amount of $1,000 or multiple thereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default. Each of the following is an "EVENT OF
DEFAULT":
(a) default in any payment of interest or Additional Interest (as required
by the Registration Rights Agreement) on any Security when the same becomes due
and payable, and such default continues for a period of 30 calendar days;
(b) default in the payment of the principal of any Security when the same
becomes due and payable at its Stated Maturity, upon optional redemption, upon
required purchase, upon declaration or otherwise;
(c) failure by the Company to comply with its obligation to convert the
Securities in accordance with this Indenture, upon exercise of a Holder's
conversion right and such failure continues for a period of five calendar days;
(d) failure by the Company to give a Company Notice in connection with a
Fundamental Change to Holders or notice to Holders required pursuant to Section
12.01(a)(iii), in each case on a timely basis as required under this Indenture;
(e) failure by the Company to comply with any of its obligations under
Article 4;
(f) failure by the Company to comply with, or a breach by the Company of,
any other covenant or agreement in this Indenture or under the Securities (other
than those referred to in Section 6.01(a) through (e)) and such default
continues for 60 calendar days after the notice specified below;
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(g) failure by the Company or any of its Subsidiaries to pay any
indebtedness for borrowed money within any applicable grace period after final
maturity or the acceleration of any such indebtedness by the holders thereof
because of a default if the total amount of such indebtedness unpaid or
accelerated exceeds $10,000,000 in the aggregate, and such failure continues for
ten calendar days after the notice specified below;
(h) a Subsidiary Guarantee shall be held in any judicial proceeding to be
unenforceable or invalid or a Subsidiary Guarantor denies or disaffirms its
obligations under its Subsidiary Guarantee;
(i) there has been entered in a court of competent jurisdiction a final
judgment for the payment of $10,000,000 or more rendered against the Company or
any Subsidiary, which judgment is not discharged or stayed within 60 calendar
days after (i) the date on which the right to appeal thereof has expired if no
such appeal has commenced, or (ii) the date on which all rights to appeal have
been extinguished;
(j) the Company or any Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of judgment, decree or order for relief
against it in an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it or for any
substantial part of its property;
(iv) makes a general assignment for the benefit of its creditors;
(v) consents to or acquiesces in the institution of a bankruptcy or an
insolvency proceeding against it;
(vi) takes any corporate action to authorize or effect any of the
foregoing; or
(vii) takes any comparable action under any foreign laws relating to
insolvency; or
(k) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Company or any Significant Subsidiary in
an involuntary case;
(ii) appoints a Custodian of the Company of any Significant Subsidiary
for all or substantially all of the Company's or such Significant
Subsidiary's property; or
35
(iii) orders the winding up or liquidation of the Company or
Significant Subsidiary;
and, in each case, the order or decree or relief remains unstayed and in
effect for 90 calendar days.
The foregoing will constitute Events of Default whatever the reason for any
such Event of Default and whether it is voluntary or involuntary or is effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body.
Notwithstanding the foregoing, a Default under clause (f) or (g) of this
Section 6.01 will not constitute an Event of Default until the Trustee or the
Holders of 25% or more in principal amount of the outstanding Securities notify
the Company of the Default in writing and the Company does not cure such Default
within the time specified in clause (f) or (g) of this Section 6.01, as
applicable, after receipt of such notice.
Section 6.02. Acceleration. If an Event of Default (other than an Event of
Default specified in Section 6.01(j) or 6.01(k) above) occurs and is continuing,
the Trustee by notice to the Company, or the Holders of at least 25% in
outstanding principal amount of the outstanding Securities by notice to the
Company and the Trustee, may, and the Trustee at the request of such Holders
shall, declare the principal of and accrued and unpaid interest (including any
Additional Interest), if any, on all the Securities to be due and payable. Upon
such a declaration, such principal and accrued and unpaid interest (including
any Additional Interest), if any, shall be due and payable immediately. If an
Event of Default specified in Section 6.01(j) or 6.01(k) above occurs and is
continuing, the principal of and accrued and unpaid interest (including any
Additional Interest), if any, on all the Securities outstanding shall be
immediately due and payable with no further action by the Trustee or the
Holders.
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 of or interest (including any Additional Interest) on the
Securities or to enforce the performance of any provision of the Securities or
this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative.
Section 6.04. Waiver of Past Defaults. The Holders of a majority in
principal amount of the outstanding Securities by notice to the Trustee may:
(a) waive, by their consent (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, Securities), an existing
36
Default or Event of Default and its consequences except (i) a Default or Event
of Default in the payment of the principal of or interest (including any
Additional Interest) on a Security (including payments pursuant to the optional
redemption or required repurchase provisions on such Security, if any) or (ii) a
Default or Event of Default in respect of a provision that under Section 9.02
cannot be amended without the consent of each Holder affected; and
(b)rescind any such acceleration with respect to the Securities and
its consequences if (i) rescission would not conflict with any judgment or
decree of a court of competent jurisdiction and (ii) all existing Events of
Default, other than the nonpayment of the principal of and interest (including
any Additional Interest) on the Securities (including payments pursuant to the
optional redemption or required repurchase provisions on such Securities, if
any) that have become due solely by such declaration of acceleration, have been
cured or waived.
When a Default or Event of Default is waived, it is deemed cured, but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any consequent right.
Section 6.05. Control by Majority. The Holders of a majority in principal
amount of the outstanding Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Sections 7.01 and 7.02, that the Trustee determines is unduly
prejudicial to the rights of other Holders or would involve the Trustee in
personal liability; provided, however, that the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with such
direction.
Section 6.06. Limitation on Suits. Subject to Section 6.07, a Holder may
not pursue any remedy with respect to this Indenture or the Securities unless:
(a) such Holder has previously given to the Trustee written notice stating
that an Event of Default is continuing;
(b) Holders of at least 25% in principal amount of the outstanding
Securities have requested that the Trustee pursue the remedy;
(c) such Holders have offered to the Trustee security or indemnity
reasonably satisfactory to it against any loss, liability or expense to be
incurred in compliance with such request;
(d) the Trustee has not complied with such request within 60 calendar days
after receipt of the request and the offer of security or indemnity; and
(e) the Holders of a majority in principal amount of the outstanding
Securities have not given the Trustee a direction that, in the opinion of the
Trustee, is inconsistent with such request within such 60-calendar-day period.
37
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
Section 6.07. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture (including, without limitation, Section 6.06),
the right of any Holder to receive payment of principal of or interest
(including any Additional Interest) on the Securities (including payments
pursuant to the optional redemption or required repurchase provisions of such
Securities, if any) held by such Holder, on or after the respective due dates
expressed in the Securities, 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 clauses (a) or (b) of Section 6.01 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount then due and owing (together with interest on any
unpaid interest (including any Additional Interest) to the extent lawful) and
the amounts provided for in Section 7.07.
Section 6.09. Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the Holders allowed in any judicial proceedings
relative to the Company, its Subsidiaries or its or their respective creditors
or properties and, unless prohibited by law or applicable regulations, may be
entitled and empowered to participate as a member of any official committee of
creditors appointed in such matter, and may vote on behalf of the Holders in any
election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and its counsel,
and any other amounts due to the Trustee under Section 7.07.
Section 6.10. Priorities. If the Trustee collects any money or property
pursuant to this Article 6, it shall pay out the money or property in the
following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for amounts due and unpaid on the Securities for
principal (including payments pursuant to the optional redemption or
required repurchase provisions of the Securities, if any) and interest
(including any Additional Interest), ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal (including payments pursuant to the optional
redemption or required repurchase provisions of the Securities, if any) and
interest (including any Additional Interest), respectively; and
38
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10. At least 15 calendar days before such
record date, the Company shall mail to each Holder and the Trustee a notice that
states the record date, the payment date and amount to be paid.
Section 6.11. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted a proceeding to enforce any right or remedy under this
Indenture and the proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to the Holder, then, subject
to any determination in the proceeding, the Company, the Trustee, any Subsidiary
Guarantors and the Holders will be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Company, the Trustee, any Subsidiary Guarantors and the Holders will continue as
though no such proceeding had been instituted.
Section 6.12. Undertaking of Costs. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees and expenses, 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 6.12 does not apply to a suit
by the Trustee, a suit by the Company, a suit by a Holder pursuant to Section
6.07 or a suit by Holders of more than 10% in outstanding principal amount of
the Securities.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee. (a) If an Event of Default has occurred
and is continuing, the Trustee shall exercise 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; provided that if an Event of Default occurs and is
continuing, the Trustee will be under no obligation to exercise any of the
rights or powers under this Indenture at the request or direction of any of the
Holders unless such Holders have offered to the Trustee reasonable indemnity or
security against loss, liability or expense that might be incurred in compliance
with such request or direction.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
39
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates, opinions or orders
furnished to the Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates, opinions or
orders which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine such 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 liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer of the Trustee unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) 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) 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.
(f) Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur financial liability in the performance of
any of its duties hereunder or in the exercise of any of its rights or powers,
if it shall have reasonable grounds to believe that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
(h) Every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 7.01 and to the provisions of the TIA.
(i) 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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Section 7.02. Rights of Trustee. Subject to Section 7.01:
(a) The Trustee may conclusively rely on any document (whether in its
original or facsimile form) reasonably 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. The Trustee shall receive and retain
financial reports and statements of the Company as provided herein, but shall
have no duty to review or analyze such reports or statements to determine
compliance under covenants or other obligations of the Company.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and/or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on an
Officers' Certificate or Opinion of Counsel.
(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 which it believes to be authorized or within its rights or
powers, unless the Trustee's conduct constitutes willful misconduct or
negligence.
(e) The Trustee may consult with counsel of its selection, and the advice
or opinion of counsel with respect to legal matters relating to this Indenture
and the Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall not be responsible or liable for special, indirect,
or consequential loss or damage of any kind whatsoever (including, but not
limited to, loss of profit) resulting from actions taken in good faith and which
the Trustee believes to be authorized or within its rights or powers, unless the
Trustee's conduct constitutes willful misconduct or negligence.
(g) The rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, Securities Custodian and other Person employed to act
hereunder.
(h) The Trustee may request that the Company deliver a certificate setting
forth the names of individuals and/or titles of Officers authorized at such time
to take specified actions pursuant to this Indenture.
Section 7.03. Individual Rights of Trustee. The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee. Any Paying Agent, Registrar, co-registrar or
co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11. In addition, the Trustee shall be permitted
to
41
engage in transactions with the Company; provided, however, that if the Trustee
acquires any conflicting interest the Trustee must (i) eliminate such conflict
within 90 calendar days of acquiring such conflicting interest, (ii) apply to
the Commission for permission to continue acting as Trustee or (iii) resign.
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 Securities, shall not be accountable for the Company's use of the
proceeds from the Securities, shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee and
shall not be responsible for any statement of the Company in this Indenture or
in any document issued in connection with the sale of the Securities or in the
Securities other than the Trustee's certificate of authentication.
Section 7.05. Notice of Defaults. If a Default or Event of Default occurs
and is continuing and if a Trust Officer of the Trustee has actual knowledge
thereof, the Trustee shall mail by first class mail to each Holder at the
address set forth in the Securities Register notice of the Default or Event of
Default within 90 calendar days after it occurs. Except in the case of a Default
or Event of Default in payment of principal of or interest (including any
Additional Interest) on any Security (including payments pursuant to the
optional redemption or required repurchase provisions of such Security, if any),
the Trustee may withhold the notice if and so long as its board of directors, a
committee of its board of directors or a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of Holders.
Section 7.06. Reports by Trustee to Holders. As promptly as practicable
after each May 15 beginning with the May 15 following the date of this
Indenture, the Trustee shall mail to each Holder a brief report dated as of such
May 15 that complies with TIA Section 313(a), if required by such TIA Section
313(a). The Trustee also shall comply with TIA Section 313(b). The Trustee shall
also transmit by mail all reports required by TIA Section 313(c).
Section 7.07. Compensation and Indemnity. The Company and the Subsidiary
Guarantors shall be jointly and severally liable for paying the Trustee from
time to time such compensation for its acceptance of this Indenture and services
hereunder as the Company and the Trustee shall from time to time agree in
writing. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. In addition to the compensation
the Company and the Subsidiary Guarantors shall be jointly and severally liable
for reimbursing the Trustee upon request for all reasonable out-of-pocket
expenses incurred or made by it. Such expenses shall include the reasonable
compensation and out-of-pocket expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts. The Company and each
Subsidiary Guarantor, jointly and severally, shall indemnify the Trustee against
any and all loss, liability, damages, claims or expense (including reasonable
attorneys' fees and expenses) incurred by it without negligence or bad faith on
its part in connection with the administration of this trust and the performance
of its duties hereunder, including the costs and expenses of enforcing this
Indenture (including this Section 7.07) and of defending itself against any
claims (whether asserted by any Holder, the Company, any Subsidiary Guarantor or
otherwise). The Trustee shall notify the Company promptly of any claim for which
it may seek
42
indemnity. Failure by the Trustee to so notify the Company shall not relieve the
Company or any Subsidiary Guarantors of its obligations hereunder. The Company
shall defend the claim and the Trustee shall provide reasonable cooperation at
the Company's expense in the defense. The Trustee may have separate counsel and
the Company and the Subsidiary Guarantors, as applicable, shall pay the fees and
expenses of such counsel, provided that the Company shall not be required to pay
such fees and expenses if it assumes the Trustee's defense, and, in the
reasonable judgment of outside counsel to the Trustee, there is no conflict of
interest between the Company and the Subsidiary Guarantors, as applicable, and
the Trustee in connection with such defense. The Company and the Subsidiary
Guarantors need not reimburse any expense or indemnify against any loss,
liability or expense which is finally determined by a court of competent
jurisdiction to have been incurred by the Trustee through the Trustee's own
willful misconduct, negligence or bad faith.
To secure the Company's and the Subsidiary Guarantors' payment obligations
in this Section 7.07, the Trustee shall have a lien prior to the Securities on
all money or property held or collected by the Trustee other than money or
property held in trust to pay principal of and interest (including any
Additional Interest) on particular Securities. Such lien shall survive the
satisfaction and discharge of this Indenture. The Trustee's right to receive
payment of any amounts due under this Section 7.07 shall not be subordinate to
any other unsecured liability or debt of the Company or any Subsidiary
Guarantors.
The Company's and the Subsidiary Guarantors' payment obligations pursuant
to this Section 7.07 shall survive the discharge of this Indenture. When the
Trustee incurs expenses after the occurrence of a Default specified in Sections
6.01(j) and 6.01(k) with respect to the Company, the expenses are intended to
constitute expenses of administration under any Bankruptcy Law.
Section 7.08. Replacement of Trustee. The Trustee may resign at any time
by so notifying the Company. The Holders of a majority in principal amount of
the Securities may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the Trustee or its
property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Company or by the Holders of a
majority in principal amount of the outstanding Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of the Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee.
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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, subject to the lien provided for in Section 7.07.
If a successor Trustee does not take office within 60 calendar days after
the retiring Trustee resigns or is removed, the retiring Trustee or the Holders
of at least 10% in principal amount of the outstanding Securities may petition,
at the Company's expense, any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, unless the Trustee's duty
to resign is stayed as provided in TIA Section 310(b), any Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture, any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; provided that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Securities in the name
of any predecessor Trustee shall only apply to its successor or successors by
merger, consolidation or conversion.
Section 7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a). The Trustee shall have a
combined capital and surplus of at least $100 million as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
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Section 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with 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.
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01. Discharge of Liability on Securities. When:
(1) the Company shall deliver to the Registrar for cancellation all
Securities theretofore authenticated (other than any Securities which have been
destroyed, lost or stolen and in lieu of or in substitution for which other
Securities shall have been authenticated and delivered) and not theretofore
canceled, or
(2) all the Securities not theretofore canceled or delivered to the
Registrar for cancellation shall have (a) been surrendered for conversion (after
all related Observation Periods have elapsed) and the Company shall deliver to
the Holders cash and shares of Common Stock, as applicable, sufficient to pay
all amounts owing in respect of all Securities (other than any Securities which
shall have been mutilated, destroyed, lost or stolen and in lieu of or in
substitution for which other Securities shall have been authenticated and
delivered) not theretofore canceled or delivered to the Registrar for
cancellation or (b) become due and payable on the Stated Maturity, Purchase
Date, Fundamental Change Purchase Date or Redemption Date, as applicable, and
the Company shall deposit with the Trustee cash sufficient to pay all amounts
owing in respect of all Securities (other than any Securities which shall have
been mutilated, destroyed, lost or stolen and in lieu of or in substitution for
which other Securities shall have been authenticated and delivered) not
theretofore canceled or delivered to the Registrar for cancellation, including
the principal amount and interest (including any Additional Interest) accrued
and unpaid to such Stated Maturity, Purchase Date, Fundamental Change Purchase
Date or Redemption Date, as the case may be,
and if in either case (1) or (2) the Company shall also pay or cause to be paid
all other sums payable hereunder by the Company, then this Indenture with
respect to the Securities shall cease to be of further effect (except as to (i)
remaining rights of registration of transfer, substitution and exchange and
conversion of Securities; (ii) rights hereunder of Holders to receive from the
Trustee payments of the amounts then due, including interest (including any
Additional Interest) with respect to the Securities and the other rights, duties
and obligations of Holders, as beneficiaries hereof solely with respect to the
amounts, if any, so deposited with the Trustee; and (iii) the rights,
obligations and immunities of the Trustee, Authenticating Agent, Paying Agent,
Conversion Agent and Registrar under this Indenture with respect to the
Securities), and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel as required by Section 8.03 and
at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to the
Securities; however, the Company hereby agrees to reimburse the Trustee,
Authenticating Agent, Paying Agent, Conversion Agent and Registrar for any costs
or expenses thereafter reasonably and properly incurred by the Trustee,
Authenticating Agent, Paying Agent,
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Conversion Agent and Registrar and to compensate the Trustee, Authenticating
Agent, Paying Agent, Conversion Agent and Registrar for any services thereafter
reasonably and properly rendered by the Trustee, Authenticating Agent, Paying
Agent, Conversion Agent and Registrar in connection with this Indenture with
respect to the Securities.
Section 8.02. Reinstatement. If the Trustee or the Paying Agent is unable
to apply any money to the Holders entitled thereto by reason of any order or
judgment of any court of governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture with respect to the Securities and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.01 until such
time as the Trustee or the Paying Agent is permitted to apply all such money in
accordance with this Indenture and the Securities to the Holders entitled
thereto; provided, however, that if the Company makes any payment of principal
amount of or interest (including any Additional Interest) on any Securities
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money held by the Trustee or Paying Agent.
Section 8.03. Officers' Certificate; Opinion of Counsel. Upon any
application or demand by the Company to the Trustee to take any action under
Section 8.01, the Company shall furnish to the Trustee an Officers' Certificate
or Opinion of Counsel stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with.
ARTICLE 9
AMENDMENTS
Section 9.01. Without Consent of Holders. The Company, the Subsidiary
Guarantors and the Trustee may amend this Indenture or the Securities without
notice to or consent of any Holder:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to comply with Article 4 in respect of the assumption by a Successor
Company of an obligation of the Company or a Subsidiary Guarantor, as
applicable, under this Indenture;
(c) to provide for uncertificated Securities in addition to or in place of
certificated Securities; provided, however, that the uncertificated Securities
are issued in registered form for purposes of Section 163(f) of the Code or in a
manner such that the uncertificated Securities are described in Section
163(f)(2)(B) of the Code;
(d) to add Guarantees with respect to the Securities;
(e) to secure the Securities;
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(f) to add to the covenants of the Company for the benefit of the Holders
or to surrender any right or power herein conferred upon the Company;
(g) to make any change that does not materially adversely affect the rights
of any Holder; or
(h) to comply with any requirement of the Commission in connection with the
qualification of this Indenture under the TIA.
After an amendment under this Section 9.01 becomes effective, the Company
shall mail to Holders a notice briefly describing such amendment. The failure to
give such notice to all Holders, or any defect therein, shall not impair or
affect the validity of an amendment under this Section 9.01.
Section 9.02. With Consent of Holders. The Company, the Subsidiary
Guarantors and the Trustee may amend this Indenture or the Securities without
notice to any Holder but with the written consent of the Holders of at least a
majority in principal amount of the Securities then outstanding (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, Securities) and past Defaults or compliance
with the provisions of this Indenture may be waived with the written consent of
the Holders of at least a majority in principal amount of the Securities then
outstanding (including, without limitation, consents obtained in connection with
a purchase of, or tender offer or exchange offer for, Securities). However,
without the consent of each Holder affected (in addition to the majority in
principal amount of the Securities then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Securities), an amendment or waiver may not:
(a) reduce the amount of Securities whose Holders must consent to an
amendment of this Indenture or to waive any past Defaults;
(b) reduce the rate of or extend the stated time for payment of interest
(including any Additional Interest) on any Security;
(c) reduce the principal of or extend the Stated Maturity of any Security;
(d) make any change that impairs or adversely affects the conversion rights
of any Securities;
(e) reduce the Redemption Price, the Purchase Price or the Fundamental
Change Purchase Price payable upon the redemption or repurchase of any Security
or amend or modify in any manner adverse to holders of the Securities the
Company's obligation to make such payments, whether through an amendment to or
waiver of a provision in the covenants, definitions or otherwise;
47
(f) make any Security payable in money other than that stated in the
Security (it being understood that all references to cash in this Indenture and
the Securities are to U.S. legal tender);
(g) impair the right of any Holder to receive payment of principal of and
interest (including any Additional Interest) on such Holder's Securities on or
after the due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Holder's Securities;
(h) make any change to the amendment provisions which require each Holder's
consent or to the waiver provisions; or
(i) terminate any Subsidiary Guarantees with respect to the Securities
(unless expressly permitted under this Indenture).
It shall not be necessary for the consent of the Holders under this Section
9.02 to approve the particular form of any proposed amendment or waiver, but it
shall be sufficient if such consent approves the substance thereof. A consent to
any amendment or waiver under this Indenture by any Holder of the Securities
given in connection with a tender or exchange of such Holder's Securities will
not be rendered invalid by such tender or exchange.
After an amendment under this Section 9.02 becomes effective, the Company
shall mail to Holders a notice briefly describing such amendment. The failure to
give such notice to all Holders, or any defect therein, shall not impair or
affect the validity of an amendment under this Section 9.02.
Section 9.03. Compliance with TIA. Every amendment or supplement to this
Indenture or the Securities shall comply with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents and Waivers. A consent to
an amendment or a waiver by a Holder of a Security shall bind the Holder and
every subsequent Holder of that Security or portion of the Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent or waiver is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder's Security
or portion of the Security if the Trustee receives the notice of revocation
before the date the amendment or waiver becomes effective or otherwise in
accordance with any related solicitation documents. After an amendment or waiver
becomes effective, it shall bind every Holder. An amendment or waiver shall
become effective upon receipt by the Trustee of the requisite number of written
consents under Section 9.01 or 9.02, as applicable.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to give their consent or take any
other action described above or required or permitted to be taken pursuant to
this Indenture. If a record date is fixed, then notwithstanding the immediately
preceding paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only those Persons, shall be entitled to
give
48
such consent or to revoke any consent previously given or to take any such
action, whether or not such Persons continue to be Holders after such record
date. No such consent shall become valid or effective more than 120 Business
Days after such record date.
Section 9.05. Notation on or Exchange of Securities. If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
Section 9.06. Trustee to Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive and (subject to Sections 7.01 and 7.02)
shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that such amendment is authorized or permitted by
this Indenture and that such amendment is the legal, valid and binding
obligation of the Company and any Subsidiary Guarantors, enforceable against
them in accordance with its terms, subject to customary exceptions, and complies
with the provisions hereof (including Section 9.03).
ARTICLE 10
SUBSIDIARY GUARANTEES
Section 10.01. Subsidiary Guarantees. Subject to the provisions of this
Article 10, the Subsidiary Guarantors hereby fully and unconditionally
Guarantee, jointly and severally, on a senior basis to each holder and to the
Trustee and its successors and assigns (i) the full and punctual payment when
due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of
all obligations of the Company under this Indenture (including obligations to
the Trustee) and the Securities, whether for payment of principal of or interest
(including any Additional Interest) on the Securities and all other monetary
obligations of the Company under this Indenture and the Securities and (ii) the
full and punctual performance within applicable grace periods of all other
obligations of the Company whether for fees, expenses, indemnification or
otherwise under this Indenture and the Securities (all the foregoing being
hereinafter collectively called the "GUARANTEED OBLIGATIONS"). Subject to
Section 10.02, the Subsidiary Guarantors further agree that the Guaranteed
Obligations may be extended or renewed, in whole or in part, without notice or
further assent from the Subsidiary Guarantors, and that the Subsidiary
Guarantors shall remain bound under this Article 10 notwithstanding any
extension or renewal of any Guaranteed Obligation.
To the extent permitted by law, each Subsidiary Guarantor waives
presentation to, demand of payment from and protest to the Company of any of the
Guaranteed Obligations and also waives notice of protest for nonpayment. Each
Subsidiary Guarantor waives notice of any Default under the Securities or the
Guaranteed Obligations. The obligations of the Subsidiary
49
Guarantors hereunder shall not be affected by (i) the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any right or remedy
against the Company or any other Person under this Indenture, the Securities or
any other agreement or otherwise; (ii) any extension or renewal of any thereof;
(iii) any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Securities or any other agreement; (iv) the
release of any security held by any Holder or the Trustee for the Guaranteed
Obligations or any of them; (v) the failure of any holder or the Trustee to
exercise any right or remedy against any other Subsidiary Guarantor; or (vi) any
change in the ownership of the Subsidiary Guarantors, except as provided in
Section 10.02(b).
Each Subsidiary Guarantor agrees that its Subsidiary Guarantee constitutes
a Guarantee of payment, performance and compliance when due (and not a Guarantee
of collection) and waives any right to require that any resort be had by any
Holder or the Trustee to any security held for payment of the Guaranteed
Obligations.
Except as expressly set forth in Section 10.02, the obligations of the
Subsidiary Guarantors hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason (other than payment of the
Guaranteed Obligations in full), including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to any defense of
setoff, counterclaim, recoupment or termination whatsoever or by reason of the
invalidity, illegality or unenforceability of the Guaranteed Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of
the Subsidiary Guarantors herein shall not be discharged or impaired or
otherwise affected by the failure of any Holder or the Trustee to assert any
claim or demand or to enforce any remedy under this Indenture, the Securities or
any other agreement, by any waiver or modification of any thereof, by any
default, failure or delay, willful or otherwise, in the performance of the
Guaranteed Obligations, or by any other act or thing or omission or delay to do
any other act or thing which may or might in any manner or to any extent vary
the risk of the Subsidiary Guarantors or would otherwise operate as a discharge
of the Subsidiary Guarantors as a matter of law or equity.
Subject to Section 3.03, each Subsidiary Guarantor agrees that its
Subsidiary Guarantee shall remain in full force and effect until payment in full
of all the Guaranteed Obligations or such Subsidiary Guarantor is released from
its Subsidiary Guarantee upon the sale of a majority of the total voting power
of the Capital Stock or all or substantially all of the assets of the Subsidiary
Guarantor in compliance with Section 10.02. Each Subsidiary Guarantor further
agrees that its Subsidiary Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
principal of or interest (including any Additional Interest) on any Guaranteed
Obligation is rescinded or must otherwise be restored by any Holder or the
Trustee upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other right
which any holder or the Trustee has at law or in equity against the Subsidiary
Guarantors by virtue hereof, upon the failure of the Company to pay any
Guaranteed Obligation when and as the same shall become due, whether at Stated
Maturity, by acceleration, by redemption, by purchase or otherwise, the
Subsidiary Guarantors hereby promise to and shall, upon receipt of written
50
demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the
Holders or the Trustee an amount equal to the sum of (i) the unpaid principal
amount of such Guaranteed Obligations, (ii) accrued and unpaid interest
(including any Additional Interest) on such Guaranteed Obligations (but only to
the extent not prohibited by law) and (iii) all other monetary obligations of
the Company to the holders and the Trustee.
Each Subsidiary Guarantor further agrees that it shall not be entitled to
any right of subrogation in relation to the Holders in respect of any Guaranteed
Obligations Guaranteed hereby until payment in full of all Guaranteed
Obligations. Each Subsidiary Guarantor further agrees that, as between such
Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (i) the maturity of the Guaranteed Obligations Guaranteed hereby may
be accelerated as provided in Article 6 for the purposes of its Subsidiary
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Guaranteed Obligations Guaranteed hereby,
and (ii) in the event of any declaration of acceleration of such Guaranteed
Obligations as provided in Article 6, such Guaranteed Obligations (whether or
not due and payable) shall forthwith become due and payable by the Subsidiary
Guarantor or the purposes of this Section 10.01.
Each Subsidiary Guarantor also agrees to pay any and all reasonable costs
and expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holder in enforcing any rights under this Section 10.01.
Upon request of the Trustee, the Subsidiary Guarantors shall execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this Indenture.
Section 10.02. Limitation on Liability; Release and Discharge; Termination
on Conversion. Any other term or provision of this Indenture to the contrary
notwithstanding, the maximum aggregate amount of the Guaranteed Obligations
Guaranteed hereunder by each Subsidiary Guarantor shall not exceed the maximum
amount that can be hereby Guaranteed without rendering this Indenture, as it
relates to such Subsidiary Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally.
Each Subsidiary Guarantor shall be deemed to be released from all
obligations under this Article 10 (without any further action by the Trustee or
the Holders) upon (i) the sale or other disposition (including by way of any
merger or consolidation), in one transaction or a series of related
transactions, of a majority of the total voting power of the Capital Stock or
other interests of such Subsidiary Guarantor or (ii) the sale or other
disposition of all or substantially all of the assets of the Subsidiary
Guarantor, in each case, other than the sale or other disposition to the Company
or any Affiliate of the Company. At the request and at the expense of the
Company, the Trustee shall execute and deliver an appropriate instrument
evidencing such release (in the form provided by the Company).
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Each Subsidiary Guarantor shall also be deemed to be released from its
Subsidiary Guarantee upon the release of such Subsidiary from any liability
under the Credit Agreement and any Guarantee or similar obligation in respect
thereof.
Each Subsidiary Guarantor shall also be deemed released from all its
obligations under this Indenture and its Subsidiary Guarantee and such
Subsidiary Guarantee will terminate upon the discharge of the Securities
pursuant to the provisions of Article 8 hereof.
Each Subsidiary Guarantee with respect to a Security will automatically
terminate immediately prior to such Security's conversion.
Section 10.03. Right of Contribution. Each Subsidiary Guarantor hereby
agrees that to the extent that any Subsidiary Guarantor shall have paid more
than its proportionate share of any payment made on the obligations under the
Subsidiary Guarantees, such Subsidiary Guarantor shall be entitled to seek and
receive contribution from and against the Company or any other Subsidiary
Guarantor who has not paid its proportionate share of such payment. The
provisions of this Section 10.03 shall in no respect limit the obligations and
liabilities of each Subsidiary Guarantor to the Trustee and the Holders and each
Subsidiary Guarantor shall remain liable to the Trustee and the Holders for the
full amount Guaranteed by such Subsidiary Guarantor hereunder.
ARTICLE 11
PURCHASE AT THE OPTION OF HOLDER UPON A FUNDAMENTAL
CHANGE; PURCHASE AT THE OPTION OF HOLDER
Section 11.01. Purchase at the Option of the Holder Upon a Fundamental
Change. If a Fundamental Change shall occur at any time, each Holder shall have
the right, at such Holder's option, to require the Company to purchase all or a
portion of such Holder's Securities on a date specified by the Company that is
no later than 35 calendar days after the date of the Company Notice of the
occurrence of such Fundamental Change, subject to extension to comply with
applicable law (the "FUNDAMENTAL CHANGE PURCHASE DATE"). The Securities shall be
purchased in multiples of $1,000 of the principal amount. The Company shall
purchase such Securities at a price (the "FUNDAMENTAL CHANGE PURCHASE PRICE"),
which shall be paid in cash, equal to 100% of the principal amount of the
Securities to be purchased plus any accrued and unpaid interest (including any
Additional Interest) to, but not including, the Fundamental Change Purchase
Date, unless the Fundamental Change Purchase Date is between a Regular Record
Date and the interest payment date to which it relates, in which case the
Fundamental Change Purchase Price shall equal 100% of the principal amount of
Securities to be purchased and any accrued and unpaid interest (including any
Additional Interest) shall be paid to the Holder of record on the Regular Record
Date.
(a) Notice of Fundamental Change. The Company shall mail to all Holders,
the Paying Agent and the Trustee a Company Notice of the occurrence of a
Fundamental Change and of the purchase right arising as a result thereof,
including the information required by
52
Section 11.03(a) hereof, on or before the 20th calendar day after the occurrence
of such Fundamental Change.
(b) Exercise of Option. For Securities to be so purchased at the option of
the Holder, the Holder must deliver or cause to be effected a book-entry
transfer of such Securities to the Paying Agent (together with all necessary
endorsements) at the offices of the Paying Agent, together with a written notice
of purchase (a "FUNDAMENTAL CHANGE PURCHASE NOTICE") in the form entitled "Form
of Fundamental Change Purchase Notice" attached to the Securities duly
completed, by 5:00 p.m., New York City time, on the Business Day immediately
preceding the Fundamental Change Purchase Date, subject to extension to comply
with applicable law; provided, however, that such Fundamental Change Repurchase
Price shall be so paid pursuant to this Section 11.01 only if the Securities so
delivered or transferred to the Paying Agent shall conform in all respects to
the description thereof in the related Fundamental Change Purchase Notice. The
Fundamental Change Purchase Notice shall state:
(i) if Definitive Securities have been issued, the certificate numbers
of the Securities which the Holder shall deliver to be purchased or, if
Definitive Securities have not been issued, the Fundamental Change Purchase
Notice must comply with appropriate DTC procedures;
(ii) the portion of the principal amount of the Securities which the
Holder shall deliver to be purchased, which portion must be $1,000 in
principal amount or a multiple thereof; and
(iii) that such Securities shall be purchased as of the Fundamental
Change Purchase Date pursuant to the terms and conditions specified in
paragraph 4 of the Securities and in this Indenture.
(c) Procedures. The Company shall purchase from a Holder, pursuant to this
Section 11.01, Securities if the principal amount of such Securities is $1,000
or a multiple of $1,000 if so requested by such Holder.
Any purchase by the Company contemplated pursuant to the provisions of this
Section 11.01 shall be consummated by the delivery of the Fundamental Change
Purchase Price to be received by the Holder promptly following the later of the
Fundamental Change Purchase Date or the time of book-entry transfer or delivery
of the Securities.
Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent the Fundamental Change Purchase Notice contemplated by this
Section 11.01 shall have the right at any time prior to 5:00 p.m., New York City
time, on the Business Day immediately preceding the Fundamental Change Purchase
Date to withdraw such Fundamental Change Purchase Notice (in whole or in part)
by delivery of a written notice of withdrawal to the Paying Agent in accordance
with Section 11.03(b).
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The Paying Agent shall promptly notify the Company of the receipt by it of
any Fundamental Change Purchase Notice or written notice of withdrawal thereof.
On or before 11:00 a.m., New York City time, on the Fundamental Change
Purchase Date, the Company shall deposit with the Paying Agent (or if the
Company or an Affiliate of the Company is acting as the Paying Agent, shall
segregate and hold in trust) cash sufficient to pay the aggregate Fundamental
Change Purchase Price of the Securities to be purchased pursuant to this Section
11.01. Payment by the Paying Agent of the Fundamental Change Purchase Price for
such Securities shall be made promptly following the later of the Fundamental
Change Purchase Date or the time of book-entry transfer or delivery of such
Securities. If the Paying Agent holds, in accordance with the terms of this
Indenture, cash sufficient to pay the Fundamental Change Purchase Price of such
Securities on the Fundamental Change Purchase Date, then, on and after such
date, such Securities shall cease to be outstanding and interest (including any
Additional Interest) on such Securities shall cease to accrue, whether or not
book-entry transfer of such Securities is made or such Securities are delivered
to the Paying Agent, and all other rights of the Holder shall terminate (other
than the right to receive the Fundamental Change Purchase Price and previously
accrued and unpaid interest (including any Additional Interest) upon delivery or
transfer of the Securities). Nothing herein shall preclude any withholding tax
required by law.
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 cash held by the Paying Agent for the payment of the
Fundamental Change Purchase Price and shall notify the Trustee of any default by
the Company in making any such payment. If the Company or an Affiliate of the
Company acts as Paying Agent, it shall segregate the cash held by it as Paying
Agent and hold it as a separate trust fund. The Company at any time may require
a Paying Agent to deliver all cash held by it to the Trustee and to account for
any funds disbursed by the Paying Agent. Upon doing so, the Paying Agent shall
have no further liability for the cash delivered to the Trustee.
Section 11.02. Purchase at the Option of the Holder.
(a) A Holder shall have the option to require the Company to purchase any
outstanding Securities on each of August 15, 2011, August 15, 2016, and August
15, 2026 (each, a "PURCHASE DATE"), at a price (the "PURCHASE PRICE") which
shall be paid in cash, equal to 100% of the principal amount of the Securities
to be purchased upon:
(i) delivery to the Paying Agent by the Holder of a written notice of
purchase (a "PURCHASE NOTICE") in the form entitled "Form of Purchase
Notice" attached to the Securities duly completed at any time from 9:00
a.m., New York City time, on the date that is 20 Business Days prior to a
Purchase Date until 5:00 p.m., New York City time, on the Business Day
immediately preceding such Purchase Date, stating:
(A) if Definitive Securities have been issued, the certificate
numbers of the Securities which the Holder shall deliver to be
purchased, or, if Definitive
54
Securities have not been issued, the Purchase Notice must comply with
appropriate DTC procedures;
(B) the portion of the principal amount of the Securities which
the Holder shall deliver to be purchased, which portion must be $1,000
in principal amount or a multiple thereof; and
(C) that such Securities shall be purchased as of the Purchase
Date pursuant to the terms and conditions specified in paragraph 4 of
the Securities and in this Indenture; and
(ii) delivery or book-entry transfer of such Securities to the Paying
Agent (together with all necessary endorsements) at the offices of the
Paying Agent; provided, however, that such Purchase Price shall be so paid
pursuant to this Section 11.02 only if the Securities so delivered or
transferred to the Paying Agent shall conform in all respects to the
description thereof in the related Purchase Notice.
The accrued and unpaid interest (including any Additional Interest) on the
Securities being purchased shall be paid to the Holder of record on the Regular
Record Date corresponding to the relevant Purchase Date.
(b) Procedures. The Company shall purchase from a Holder, pursuant to this
Section 11.02, Securities if the principal amount of such Securities is $1,000
or a multiple of $1,000 if so requested by such Holder.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 11.02 shall be consummated by the delivery of the Purchase Price to
be received by the Holder promptly following the later of the Purchase Date or
the time of book-entry transfer or delivery of the Securities.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Purchase Notice contemplated by this Section 11.02 shall
have the right at any time prior to the 5:00 p.m., New York City time, on the
Business Day immediately preceding the Purchase Date to withdraw such Purchase
Notice (in whole or in part) by delivery of a written notice of withdrawal to
the Paying Agent in accordance with Section 11.03(b).
The Paying Agent shall promptly notify the Company of the receipt by
it of any Purchase Notice or written notice of withdrawal thereof.
On or before 11:00 a.m. New York City time, on the Purchase Date, the
Company shall deposit with the Paying Agent (or if the Company or an Affiliate
of the Company is acting as the Paying Agent, shall segregate and hold in trust)
cash sufficient to pay the aggregate Purchase Price of the Securities to be
purchased pursuant to this Section 11.02. Payment by the Paying Agent of the
Purchase Price for such Securities shall be made promptly following the later of
the Purchase Date or the time of book-entry transfer or delivery of such
Securities. If the
55
Paying Agent holds, in accordance with the terms of this Indenture, cash
sufficient to pay the Purchase Price of such Securities on the Purchase Date,
then, on and after such date, such Securities shall cease to be outstanding and
interest (including any Additional Interest) on such Securities shall cease to
accrue, whether or not book-entry transfer of such Securities is made or such
Securities are delivered to the Paying Agent, and all other rights of the Holder
shall terminate (other than the right to receive the Purchase Price and
previously accrued and unpaid interest (including any Additional Interest) upon
delivery or transfer of the Securities). Nothing herein shall preclude any
withholding tax required by law.
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 cash held by the Paying Agent for the payment of the
Purchase Price and shall notify the Trustee of any default by the Company in
making any such payment. If the Company or an Affiliate of the Company acts as
Paying Agent, it shall segregate the cash held by it as Paying Agent and hold it
as a separate trust fund. The Company at any time may require a Paying Agent to
deliver all cash held by it to the Trustee and to account for any funds
disbursed by the Paying Agent. Upon doing so, the Paying Agent shall have no
further liability for the cash delivered to the Trustee.
Section 11.03. Further Conditions and Procedures for Purchase at the
Option of the Holder Upon a Fundamental Change and Purchase at the Option of the
Holder.
(a) Notice of Fundamental Change or Purchase Date. The Company shall send
notices (each, a "COMPANY NOTICE") to the Holders at their addresses shown in
the Securities Register maintained by the Registrar, and delivered to the
Trustee and Paying Agent, on or before the 20th calendar day after the
occurrence of the Fundamental Change or on or before the 20th Business Day prior
to each Purchase Date, as the case may be (each such date of delivery, a
"COMPANY NOTICE DATE"). Each Company Notice shall include a form of Fundamental
Change Purchase Notice or Purchase Notice to be completed by a Holder and shall
state:
(i) in the case of a Company Notice pursuant to Section 11.01, the
events causing the Fundamental Change;
(ii) in the case of a Company Notice pursuant to Section 11.01, the
date of the Fundamental Change;
(iii) the last date on which a Holder may exercise its purchase rights
under Section 11.01 or Section 11.02, as applicable;
(iv) the applicable Fundamental Change Purchase Price or Purchase
Price;
(v) the applicable Fundamental Change Purchase Date or Purchase Date;
(vi) the name and address of the Paying Agent and the Conversion
Agent, if applicable;
56
(vii) if applicable, the conversion rights of the Holders with respect
to the Securities and the Conversion Rate at the time of such notice and
any expected adjustments to the Conversion Rate;
(viii) the procedures the Holder must follow under Sections 11.01 or
11.02, as applicable, and Section 11.03;
(ix) that Securities must be surrendered to the Paying Agent to
collect payment of the Fundamental Change Purchase Price or Purchase Price;
(x) if applicable, that Securities as to which a Fundamental Change
Purchase Notice or Purchase Notice has been given may be converted only if
the applicable Fundamental Change Purchase Notice or Purchase Notice has
been withdrawn in accordance with the terms of this Indenture;
(xi) that the Fundamental Change Purchase Price or Purchase Price for
any Securities as to which a Fundamental Change Purchase Notice or Purchase
Notice, as applicable, has been given and not withdrawn shall be paid by
the Paying Agent promptly following the later of the Fundamental Change
Purchase Date or Purchase Date, as applicable, or the time of book-entry
transfer or delivery of such Securities;
(xii) that, unless the Company defaults in making payment of such
Fundamental Change Purchase Price or Purchase Price on Securities covered
by any Fundamental Change Purchase Notice or Purchase Notice, as
applicable, interest (including any Additional Interest) will cease to
accrue on and after the Fundamental Change Purchase Date or Purchase Date,
as applicable;
(xiii) the procedures for withdrawing a Fundamental Change Purchase
Notice or Purchase Notice; and
(xiv) the CUSIP or ISIN number of the Securities.
Simultaneously with providing such Company Notice, the Company will publish
a notice containing the information in such Company Notice in a newspaper of
general circulation in New York City or publish such information on its then
existing website or through such other public medium as it may use at the time.
At the Company's request, made at least five Business Days prior to the
date upon which such notice is to be mailed, and at the Company's expense, the
Paying Agent shall give the Company Notice in the Company's name; provided,
however, that, in all cases, the text of the Company Notice shall be prepared by
the Company.
(b) Effect of Purchase Notice or Fundamental Change Purchase Notice;
Withdrawal; Effect of Event of Default. Upon receipt by the Company of the
Fundamental Change Purchase Notice or Purchase Notice specified in Section
11.01(b) or Section 11.02(a), as applicable, the Holder of the Securities in
respect of which such Fundamental Change Purchase Notice or
57
Purchase Notice, as the case may be, was given shall (unless such Fundamental
Change Purchase Notice or Purchase Notice is withdrawn as specified in the
following two paragraphs) thereafter be entitled to receive solely the
Fundamental Change Purchase Price or Purchase Price with respect to such
Securities. Such Fundamental Change Purchase Price or Purchase Price shall be
paid by the Paying Agent to such Holder promptly following the later of (x) the
Fundamental Change Purchase Date or the Purchase Date, as the case may be, with
respect to such Securities (provided the conditions in this Article 11 have been
satisfied) and (y) the time of delivery or book-entry transfer of such
Securities to the Paying Agent by the Holder thereof in the manner required by
Section 11.01 or Section 11.02, as applicable. Securities in respect of which a
Fundamental Change Purchase Notice or Purchase Notice, as the case may be, has
been given by the Holder thereof may not be converted on or after the date of
the delivery of such Fundamental Change Purchase Notice or Purchase Notice, as
the case may be, unless such Fundamental Change Purchase Notice or Purchase
Notice, as the case may be, has first been validly withdrawn as specified in the
following two paragraphs.
A Fundamental Change Purchase Notice or Purchase Notice, as the case may
be, may be withdrawn by means of a written notice of withdrawal delivered to the
office of the Paying Agent at any time prior to 5:00 p.m., New York City time,
on the Business Day immediately preceding the Fundamental Change Purchase Date
or the Purchase Date, as the case may be, to which it relates, specifying:
(i) the principal amount of the Securities with respect to which such
notice of withdrawal is being submitted;
(ii) if Definitive Securities have been issued, the certificate number
of the Securities in respect of which such notice of withdrawal is being
submitted, or, if Definitive Securities have not been issued, the written
notice of withdrawal must comply with appropriate DTC procedures; and
(iii) the principal amount, if any, of such Securities which remains
subject to the original Fundamental Change Purchase Notice or Purchase
Notice, as the case may be, and which has been or shall be delivered for
purchase by the Company.
There shall be no purchase of any Securities pursuant to Section 11.01 or
Section 11.02 if an Event of Default has occurred and is continuing (other than
a default that is cured by the payment of the Fundamental Change Purchase Price
or Purchase Price, as the case may be). The Paying Agent shall promptly return
to the respective Holders thereof any Securities (x) with respect to which a
Fundamental Change Purchase Notice or Purchase Notice, as the case may be, 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 that is cured by the
payment of the Fundamental Change Purchase Price or Purchase Price, as the case
may be) in which case, upon such return, the Fundamental Change Purchase Notice
or Purchase Notice with respect thereto shall be deemed to have been withdrawn.
58
(c) Securities Purchased in Part. Any Securities that are 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 or the Authenticating
Agent shall authenticate and shall make available for delivery to the Holder of
such Securities, without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the
Securities so surrendered which is not purchased or redeemed.
(d) Covenant to Comply with Securities Laws Upon Purchase of Securities. In
connection with any offer to purchase Securities under Section 11.01 or Section
11.02, the Company shall, to the extent applicable, (a) comply with Rules 13e-4
and 14e-1 (and any successor provisions thereto) under the Exchange Act, if
applicable; (b) file the related Schedule TO (or any successor schedule, form or
report) under the Exchange Act, if applicable; and (c) otherwise comply with all
applicable federal and state securities laws so as to permit the rights and
obligations under Section 11.01 or Section 11.02 to be exercised in the time and
in the manner specified in Section 11.01 or Section 11.02.
(e) Repayment to the Company. The Trustee and the Paying Agent shall return
to the Company any cash or property that remains unclaimed, as provided in
paragraph 8 of the Securities, together with interest that the Trustee or Paying
Agent, as the case may be, has expressly agreed in writing to pay, if any, that
is held by them for the payment of a Fundamental Change Purchase Price or
Purchase Price, as the case may be; provided, however, that to the extent that
the aggregate amount of cash or property deposited by the Company pursuant to
Section 11.01(c) or Section 11.02(b), as applicable, exceeds the aggregate
Fundamental Change Purchase Price or Purchase Price, as the case may be, of the
Securities or portions thereof which the Company is obligated to purchase as of
the Fundamental Change Purchase Date or Purchase Date, as the case may be, then
promptly on and after the Business Day following the Fundamental Change Purchase
Date or Purchase Date, as the case may be, the Trustee and the Paying Agent
shall return any such excess to the Company together with interest that the
Trustee or Paying Agent, as the case may be, has expressly agreed in writing to
pay, if any.
ARTICLE 12
CONVERSION
Section 12.01. Conversion of Securities. (a) Right to Convert. Subject to
the procedures for conversion set forth in this Article 12, a Holder may convert
all or a portion of its Securities at any time prior to 5:00 p.m., New York City
time, on the Business Day immediately preceding the Stated Maturity at the
Conversion Rate; provided, however, that prior to June 15, 2011, the Holder may
convert all or a portion of its Securities only when any of the conditions
specified in clauses (i), (ii) and (iii) below are met and during the related
specified period. Whenever the Securities shall become convertible prior to June
15, 2011, upon the satisfaction of one or more
59
of the conditions stated in clauses (i), (ii) or (iii) below, the Company or, at
the Company's request, the Trustee in the name and at the expense of the
Company, shall notify, in the case of clause (i) and (ii), promptly, and in the
case of clause (iii), within the time periods specified in clause (iii)(A)(B)
and (C), the Trustee, the Conversion Agent and the Holders of the event
triggering such convertibility in the manner provided in Section 13.02 and the
Company shall also publicly announce such information by publication on the
Company's website or through such other public medium as it may use at such
time. Whenever the Securities shall become convertible upon the satisfaction of
one or more of the conditions stated in clauses (iii)(B) or (iii)(C), the
Company or, at the Company's request, the Trustee in the name and at the expense
of the Company, shall also provide notice of the event triggering such
convertibility in accordance with the provisions of Section 11.03. Any notice so
given shall be conclusively presumed to have been duly given, whether or not the
Holder receives such notice.
(i) Conversion Upon Satisfaction of Sale Price Condition. A Holder may
surrender all or a portion of its Securities for conversion during any
calendar quarter (and only during such calendar quarter) commencing after
September 30, 2006, if the Last Reported Sale Price for the Common Stock
for at least 20 Trading Days during the period of 30 consecutive Trading
Days ending on the last Trading Day of the immediately preceding calendar
quarter is greater than or equal to 120% of the Conversion Price in effect
on such last Trading Day.
(ii) Conversion Upon Satisfaction of Trading Price Condition. A Holder
may surrender all or a portion of its Securities for conversion during the
five Business Day period after any 10 consecutive Trading Day period (the
"MEASUREMENT PERIOD") in which the Trading Price per $1,000 in principal
amount of a Security, as determined following a request by a Holder in
accordance with the procedures set forth in this Section 12.01(a)(ii), for
each day in the Measurement Period was less than 103% of the product of the
Last Reported Sale Price of the Common Stock and the applicable Conversion
Rate. In connection with any conversion in accordance with this Section
12.01(a)(ii), the Bid Solicitation Agent shall have no obligation to
determine the Trading Price of the Securities unless requested by the
Company; and the Company shall have no obligation to make such request
unless a Holder provides the Company with reasonable evidence that the
Trading Price per $1,000 principal amount of Securities would be less than
103% of the product of the Last Reported Sale Price of the Common Stock and
the applicable Conversion Rate. Promptly after receiving such evidence, the
Company shall instruct the Bid Solicitation Agent to determine the Trading
Price of the Securities beginning on the next Trading Day and on each
successive Trading Day until the Trading Price per $1,000 principal amount
of Securities is greater than or equal to 103% of the product of the Last
Reported Sale Price of the Common Stock and the applicable Conversion Rate.
(iii) Conversion Upon Specified Corporate Transactions.
(A) If the Company (1) distributes to all or substantially all
holders of Common Stock rights entitling them to purchase, for a
period expiring within 60
60
calendar days after the date of the distribution, shares of Common
Stock at less than the average of the Last Reported Sale Price of a
share of Common Stock for the 10 consecutive Trading Day period ending
on the Business Day preceding the announcement of such issuance, or
(2) distributes to all or substantially all holders of Common Stock
assets, debt securities or rights to purchase securities of the
Company, which distribution has a per share Fair Market Value, as
reasonably determined by the Board of Directors, exceeding 10% of the
Last Reported Sale Price of the Common Stock on the day preceding the
declaration date for such distribution, then, in each case, the
Company must notify the Trustee, the Conversion Agent and the Holders,
in the manner provided in Section 13.02, at least 35 Scheduled Trading
Days prior to the Ex-Dividend Date for such distribution. Once the
Company has given such notice, Holders may surrender all or a portion
of their Securities for conversion at any time until the earlier of
5:00 p.m., New York City time, on the Business Day immediately prior
to such Ex-Dividend Date or the Company's announcement that such
distribution will not take place.
(B) If the Company is party to a transaction described in clause
(2) of the definition of Fundamental Change (without, for the
avoidance of doubt, giving effect to the proviso set forth in the
definition thereof relating to Publicly Traded Securities), the
Company must notify the Trustee, the Conversion Agent and the Holders,
in the manner provided in Section 13.02, at least 35 Scheduled Trading
Days prior to the anticipated Effective Date for such transaction.
Once the Company has given such notice, Holders may surrender
Securities for conversion at any time until 35 calendar days after the
actual Effective Date of such transaction (or if such transaction also
constitutes a Fundamental Change for purposes of Section 11.01, the
related Fundamental Change Purchase Date).
(C) If a Fundamental Change of the type described in clause (1)
or (5) in the definition thereof occurs, the Company must notify the
Trustee, the Conversion Agent and the Holders, in the manner provided
in Section 13.02, on or before the 20th calendar day after the
occurrence of the Fundamental Change and Holders may surrender
Securities for conversion at any time beginning on the actual
Effective Date of such Fundamental Change until and including the
later of (i) the date which is 30 calendar days after the actual
Effective Date of such transaction and (ii) the related Fundamental
Change Purchase Date.
A Holder may convert a portion of the principal amount of Securities if the
portion is $1,000 or a multiple of $1,000. The cash payable, and the number of
shares of Common Stock issuable, if any, upon conversion of a Security shall be
determined as set forth in Section 12.01(c).
(b) Conversion Procedures. The following procedures shall apply to the
conversion of Securities:
61
(i) In respect of a Definitive Security, a Holder must (A) complete
and manually sign a written notice of conversion (a "CONVERSION NOTICE") in
the form entitled "Form of Conversion Notice" attached to the Security, or
facsimile of such Conversion Notice; (B) deliver such Conversion Notice,
which is irrevocable, and the Security to the Conversion Agent at the
office maintained by the Conversion Agent for such purpose; (C) to the
extent any shares of Common Stock issuable upon conversion are to be issued
in a name other than the Holder's, furnish endorsements and transfer
documents as may be required by the Conversion Agent and, if required
pursuant to Section 12.01(e), pay all transfer or similar taxes or duties;
and (D) if required pursuant to Section 2.01(d), pay funds equal to
interest (including any Additional Interest) payable on the next interest
payment date.
(ii) In respect of a beneficial interest in a Global Security, a
Beneficial Owner must (A) comply with DTC's procedures for converting a
beneficial interest in a Global Security, (B) to the extent any shares of
Common Stock issuable upon conversion are to be issued in a name other than
the Holder's, if required pursuant to Section 12.01(e), pay all transfer or
similar taxes or duties and (C) if required pursuant to Section 2.01(d),
pay funds equal to interest (including any Additional Interest) payable on
the next interest payment date.
The date a Holder satisfies the foregoing requirements is the "CONVERSION DATE"
hereunder.
If a Holder converts more than one Security at the same time, the cash and
number of shares of Common Stock issuable upon the conversion, if any, shall be
based on the total principal amount of the Securities converted.
Securities called for redemption may be converted at any time prior to 5:00
p.m., New York City time, on the third Scheduled Trading Day prior to the
Redemption Date, unless the Company fails to pay the Redemption Price. If a
Holder has delivered a Fundamental Change Purchase Notice or a Purchase Notice
with respect to a Security, the Holder may not surrender that Security for
conversion until the Holder has withdrawn the notice in accordance with Section
11.03(b).
Upon surrender of a Security that is converted in part, the Company shall
execute, and the Trustee or the Authenticating Agent shall authenticate and make
available for delivery to the Holder, a new Security in an authorized
denomination equal in principal amount to the unconverted portion of the
Security surrendered.
(c) Settlement Upon Conversion. Upon any conversion of any Security, the
Company will deliver to converting Holders, in respect of each $1,000 principal
amount of Securities being converted, a "SETTLEMENT AMOUNT" of cash and shares
of Common Stock, if any, equal to the sum of the Daily Settlement Amounts for
each of the 25 Trading Days during the Observation Period for such Security.
62
Except as provided in Section 12.03(d)(ii), the Settlement Amount in
respect of any Security converted will be delivered to converting Holders on the
third Business Day immediately following the final Trading Day of the related
Observation Period.
(d) Cash Payments in Lieu of Fractional Shares. The Company shall not issue
a fractional share of Common Stock upon conversion of Securities. Instead the
Company shall deliver cash for the current market value of the fractional share.
The current market value of a fractional share shall be determined to the
nearest 1/10,000th of a share by multiplying the Daily VWAP of a full share of
Common Stock on the final Trading Day of the related Observation Period by the
fractional amount and rounding the product to the nearest whole cent.
(e) Taxes on Conversion. If a Holder converts Securities, 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 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 shall be due because the shares are to be issued in a name other
than the Holder's name, but the Conversion Agent shall have no duty to determine
if any such tax is due. Nothing herein shall preclude any withholding of tax
required by law.
(f) Certain Covenants of the Company.
(i) The Company shall, prior to issuance of any Securities hereunder,
and from time to time as may be necessary, reserve out of its authorized
but unissued Common Stock or shares of Common Stock held in treasury, a
sufficient number of shares of Common Stock, free of preemptive rights, to
permit the conversion of the Securities.
(ii) All shares of Common Stock delivered upon conversion of the
Securities shall be newly issued shares or shares held in treasury, 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.
(iii) The Company shall endeavor promptly to comply with all federal
and state securities laws regulating the issuance and delivery of shares of
Common Stock upon the conversion of Securities, if any, and shall cause to
have listed or quoted all such shares of Common Stock on each U.S. national
securities exchange or automatic quotation system or over-the-counter or
other domestic market on which the Common Stock is then listed or quoted.
Section 12.02. Adjustments to Conversion Rate. The Conversion Rate shall
be adjusted from time to time by the Company as follows:
63
(a) If the Company issues shares of Common Stock as a dividend or
distribution on shares of the Common Stock, or effects a share split or share
combination, the Conversion Rate will be adjusted based on the following
formula:
OS'
CR' = CR(0) x -----
OS(0)
where,
CR(0) = the Conversion Rate in effect immediately prior to such event
CR' = the Conversion Rate in effect immediately after such event
OS(0) = the number of shares of Common Stock outstanding immediately
prior to such event
OS' = the number of shares of Common Stock outstanding immediately
after such event.
Such adjustment shall become effective immediately after 9:00 a.m., New York
City time, on the Business Day following the Record Date for such dividend or
distribution, or the date fixed for determination for such share split or share
combination. The Company will not pay any dividend or make any distribution on
shares of Common Stock held in treasury by the Company. If any dividend or
distribution of the type described in this Section 12.02(a) is declared but not
so paid or made, or the outstanding shares of Common Stock are not subdivided or
combined, as the case may be, the Conversion Rate shall again be adjusted,
effective as of the date the Board of Directors determines not to pay such
divided or distribution, or subdivide or combine the outstanding shares of
Common Stock, as the case may be, to the Conversion Rate that would then be in
effect if such dividend or distribution, or subdivision or combination, had not
been declared.
(b) If the Company issues to all or substantially all holders of its Common
Stock any rights or warrants entitling them for a period of not more than 60
calendar days to subscribe for or purchase shares of Common Stock at a price per
share less than the average of the Last Reported Sale Prices of the Common Stock
for the 10 consecutive Trading Day period ending on the Business Day immediately
preceding the date of announcement of the issuance of such rights, the
Conversion Rate will be adjusted based on the following formula:
OS(0) + X
CR' = CR(0) x ---------
OS(0) + Y
where,
CR(0) = the Conversion Rate in effect immediately prior to such event
64
CR' = the Conversion Rate in effect immediately after such event
OS(0) = the number of shares of Common Stock outstanding immediately
prior to such event
X = the total number of shares of Common Stock issuable pursuant
to such rights
Y = the number of shares of Common Stock equal to the aggregate
price payable to exercise such rights divided by the average
of the Last Reported Sale Prices of the Common Stock over the
10 consecutive Trading Day period ending on the Business Day
immediately preceding the date of announcement of the issuance
of such rights.
Such adjustment shall be successively made whenever any such rights or warrants
are issued and shall become effective immediately after 9:00 a.m., New York City
time, on the Business Day following the date fixed for determination of Holders
entitled to receive such rights or warrants. The Company will not issue any such
rights or warrants in respect of any shares of Common Stock held in treasury by
the Company. To the extent that shares of Common Stock are not delivered after
the expiration of such rights or warrants, the Conversion Rate shall be
readjusted to the Conversion Rate that would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made on the
basis of delivery of only the number of shares of Common Stock actually
delivered. If such rights or warrants are not so issued, the Conversion Rate
shall again be adjusted to be the Conversion Rate that would then be in effect
if such date fixed for the determination of stockholders entitled to receive
such rights or warrants had not been fixed.
In determining whether any rights or warrants entitle the holders to subscribe
for or purchase shares of Common Stock at less than such Last Reported Sale
Price, and in determining the aggregate offering price of such shares of Common
Stock, there shall be taken into account any consideration received by the
Company for such rights or warrants and any amount payable on exercise or
conversion thereof, the value of such consideration, if other than cash, to be
determined by the Board of Directors.
(c) If the Company distributes shares of Capital Stock, evidences of its
indebtedness or other assets or property of the Company to all or substantially
all holders of the Common Stock, excluding:
(i) dividends or distributions and rights or warrants referred to in
clause (a) or (b) above; and
(ii) dividends or distributions paid exclusively in cash;
then the Conversion Rate will be adjusted based on the following formula:
65
SP(0)
CR' = CR(0) x -----------
SP(0) - FMV
where,
CR(0) = the Conversion Rate in effect immediately prior to such
distribution
CR' = the Conversion Rate in effect immediately after such
distribution
SP(0) = the average of the Last Reported Sale Prices of the Common
Stock over the 10 consecutive Trading Day period ending on the
Business Day immediately preceding the Ex-Dividend Date for
such distribution
FMV = the Fair Market Value (as determined by the Board of
Directors) of the shares of Capital Stock, evidences of
indebtedness, assets or property distributed with respect to
each outstanding share of Common Stock on the Record Date for
such distribution.
Such adjustment shall become effective immediately prior to 9:00 a.m., New York
City time, on the Business Day following the Record Date such distribution.
With respect to an adjustment pursuant to this clause (c) where there has been a
payment of a dividend or other distribution on the Common Stock or shares of
Capital Stock of any class or series, or similar equity interest, of or relating
to a Subsidiary or other business unit (a "SPIN-OFF"), the Conversion Rate in
effect immediately before 5:00 p.m., New York City time, on the tenth Trading
Day immediately following, and including, the effective date for such Spin-Off
will be increased based on the following formula:
FMV(0) + MP(0)
CR' = CR(0) x --------------
MP(0)
where,
CR(0) = the Conversion Rate in effect immediately prior to such
distribution
CR' = the Conversion Rate in effect immediately after such
distribution
FMV(0) = the average of the Last Reported Sale Prices of the Capital
Stock or similar equity interest distributed to holders of
Common Stock applicable to one share of Common Stock over the
first 10 consecutive Trading Day period after the effective
date of the Spin-Off
MP(0) = the average of the Last Reported Sale Prices of Common Stock
over the first 10 consecutive Trading Day period after the
effective date of the Spin-Off.
66
Such adjustment shall occur on the tenth Trading Day from, and including, the
effective date of the Spin-Off.
(d) If the Company pays any cash dividend or distribution to all or
substantially all holders of Common Stock, the Conversion Rate will be adjusted
based on the following formula:
SP(0)
CR' = CR(0) x ---------
SP(0) - C
where,
CR(0) = the Conversion Rate in effect immediately prior to the Record
Date for such distribution
CR' = the Conversion Rate in effect immediately after the Record
Date for such distribution
SP(0) = the Last Reported Sale Price of the Common Stock on the
Trading Day immediately preceding the Ex-Dividend Date for
such distribution
C = the amount in cash per share the Company distributes to
holders of Common Stock
Such adjustment shall become effective immediately after 5:00 p.m., New York
City time, on the Record Date for such dividend or distribution; provided that
if such dividend or distribution is not so paid or made, the Conversion Rate
shall again be adjusted to be the Conversion Rate that would then be in effect
if such dividend or distribution had not been declared.
(e) If the Company or any of its Subsidiaries make a payment in respect of
a tender or exchange offer for Common Stock, to the extent that the cash and
value of any other consideration included in the payment per share of Common
Stock exceeds the Last Reported Sale Price of the Common Stock on the Trading
Day next succeeding the last date on which tenders or exchanges may be made
pursuant to such tender or exchange offer (such last date, the "EXPIRATION
TIME"), the Conversion Rate will be increased based on the following formula:
AC + (SP' x OS')
CR' = CR(0) x ----------------
OS(0) x SP'
where,
CR(0) = the Conversion Rate in effect on the date such tender or
exchange offer expires
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CR' = the Conversion Rate in effect on the day next succeeding the
date such tender or exchange offer expires
AC = the aggregate value of all cash and any other consideration
(as determined by the Board of Directors) paid or payable for
shares purchased in such tender or exchange offer
OS(0) = the number of shares of Common Stock outstanding immediately
prior to the date such tender or exchange offer expires
OS' = the number of shares of Common Stock outstanding immediately
after the date such tender or exchange offer expires
SP' = the average of the Last Reported Sale Prices of Common Stock
over the 10 consecutive Trading Day period commencing on the
Trading Day next succeeding the date such tender or exchange
offer expires.
If the Company is obligated to purchase shares pursuant to any such tender or
exchange offer, but the Company is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the Conversion
Rate shall again be adjusted to be the Conversion Rate that would then be in
effect if such tender or exchange offer had not been made.
(f) [reserved]
(g) Notwithstanding the foregoing provisions of this Section 12.02, no
adjustment shall be made thereunder, nor shall an adjustment be made to the
ability of a Holder to convert, for any distribution described therein if the
Holder will otherwise participate in the distribution without conversion of such
Holder's Securities.
(h) The Company may (but is not required to) make such increases in the
Conversion Rate, in addition to those required by clauses (a) through (e) of
this Section 12.02 as the Board of Directors considers to be advisable to avoid
or diminish any income tax to holders of Common Stock or rights to purchase
Common Stock in connection with a dividend or distribution of shares (or rights
to acquire shares) or any similar event treated as such for income tax purposes.
(i) To the extent permitted by applicable law, the Company from time to
time may increase the Conversion Rate by any amount for any period of at least
20 Business Days if the Board of Directors shall have made a determination that
such increase would be in the best interests of the Company, which determination
shall be conclusive.
(j) Notwithstanding any provision herein to the contrary, no adjustment to
the Conversion Rate need be made:
(i) 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;
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(ii) upon the issuance of any shares of Common Stock or options or
rights to purchase shares of Common Stock pursuant to any present or future
employee, director or consultant benefit plan or program of or assumed by
the Company or any of its Subsidiaries;
(iii) upon the issuance of any shares of Common Stock pursuant to any
option, warrant, right, or exercisable, exchangeable or convertible
security not described in clause (ii) above and outstanding as of the Issue
Date;
(iv) for a change in the par value of the Common Stock; or
(v) for accrued and unpaid Interest (including any Additional
Interest).
To the extent the Securities become convertible into cash, assets or property
(other than Capital Stock of the Company or securities to which Section 12.03
applies), no adjustment shall be made thereafter as to the cash, assets or
property. Interest shall not accrue on such cash, assets or property.
(k) All calculations under this Section 12.02 shall be made by the Company
and shall be made to the nearest cent or to the nearest one-ten thousandth
(1/10,000) of a share, as the case may be. Except as described above in this
Section 12.02, the Company will not adjust the Conversion Rate.
(l) Whenever the Conversion Rate is adjusted as herein provided, the
Company shall promptly file with the Trustee and any Conversion Agent other than
the Trustee an Officers' Certificate setting forth the Conversion Rate after
such adjustment and setting forth a brief statement of the facts requiring such
adjustment. Unless and until a Trust Officer of the Trustee shall have received
such Officers' Certificate, the Trustee shall not be deemed to have knowledge of
any adjustment of the Conversion Rate and may assume that the last Conversion
Rate of which it has knowledge is still in effect. Promptly after delivery of
such certificate, the Company shall prepare a notice of such adjustment of the
Conversion Rate setting forth the adjusted Conversion Rate and the date on which
each adjustment becomes effective and shall mail such notice of such adjustment
of the Conversion Rate to the Holder of each Security at such Holder's last
address appearing on the Securities Register provided for in Section 2.05 of
this Indenture within 20 Business Days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of any such
adjustment.
(m) Any case in which this Section 12.02 provides that an adjustment shall
become effective immediately after (i) a Record Date for a dividend or
distribution described in Section 12.02(a), Section 12.02(c) or Section
12.02(d), (ii) the date fixed for the determination of a share split or
combination pursuant to Section 12.02(a), (iii) the date fixed for the
determination of Holders entitled to receive rights or warrants pursuant to
12.02(b) or (iv) the Expiration Time for any tender or exchange offer pursuant
to Section 12.02(e), (each a "DETERMINATION DATE"), the Company may elect to
defer until the occurrence of the applicable Adjustment Event (as hereinafter
defined) (x) issuing to the Holder of any Security converted after such
Determination
69
Date and before the occurrence of such Adjustment Event, the additional shares
of Common Stock or other securities issuable upon such conversion by reason of
the adjustment required by such Adjustment Event over and above the Common Stock
issuable upon such conversion before giving effect to such adjustment and (y)
paying to such Holder any amount in cash in lieu of any fraction pursuant to
Section 12.01. For purposes of this Section 12.02(m), the term "ADJUSTMENT
EVENT" shall mean:
(1) in any case referred to in clause (i) hereof, the date any such
dividend or distribution is paid or made;
(2) in any case referred to in clause (ii) hereof, the occurrence of
such event;
(3) in any case referred to in clause (iii) hereof, the date of
expiration of such rights or warrants;
(4) in any case referred to in clause (iv) hereof, the date a sale or
exchange of Common Stock pursuant to such tender or exchange offer is
consummated and becomes irrevocable.
(n) For purposes of this Section 12.02, the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury of
the Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company will not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.
(o) Whenever any provision of this Article 12 requires a calculation of an
average of Last Reported Sale Prices or Daily VWAP over a span of multiple days,
the Company will make appropriate adjustments (determined in good faith by the
Board of Directors) to account for any adjustment to the Conversion Rate that
becomes effective, or any event requiring an adjustment to the Conversion Rate
where the Ex-Dividend Date of the event occurs, at any time during the period
from which the average is to be calculated.
Section 12.03. Adjustment Upon Certain Fundamental Changes. (a) If a Holder
elects to convert Securities pursuant to Section 12.01(a)(iii) above in
connection with a transaction described therein and such Fundamental Change
pursuant to clause (1), (2) or (5) of the definition of "Fundamental Change"
occurs on or prior to August 15, 2011, the Conversion Rate for such Securities
shall be increased by an additional number of shares of Common Stock (the
"ADDITIONAL SHARES") as described below. Any conversion will be deemed to have
occurred in connection with such Fundamental Change only if such Securities are
surrendered for conversion at a time when the Securities would be convertible in
light of the expected or actual occurrence of a Fundamental Change and
notwithstanding the fact that a Security may then be convertible because another
condition to conversion has been satisfied or no condition to conversion exists.
(b) The number of shares of Common Stock by which the Conversion Rate will
be increased will be determined by reference to the table attached as Schedule A
hereto, based on
70
the date on which the Fundamental Change occurs or becomes effective (the
"EFFECTIVE DATE") and the Stock Price with respect to such transaction; provided
that if the Stock Price is between two Stock Price amounts set forth in such
table or the Effective Date is between two Effective Dates in the table, the
number of Additional Shares will be increased will be determined by a
straight-line interpolation between the number of Additional Shares set forth
for the higher and lower Stock Price amounts and the two dates, as applicable,
based on a 365-day year; provided further that if the Stock Price is greater
than $17.25 per share (subject to adjustment as set forth in clause (c) below)
or less than $4.25 per share (subject to adjustment as set forth in clause (c)
below), then no Additional Shares will be added to the Conversion Rate.
Notwithstanding the foregoing, in no event will the total number of shares of
Common Stock issuable upon conversion exceed 235.2941 shares per $1,000
principal amount of Securities, subject to adjustments in the same manner as the
Conversion Rate pursuant to Section 12.02.
(c) The Stock Prices set forth in the first row of the table in Schedule A
hereto will be adjusted as of any date on which the Conversion Rate of the
Securities is adjusted pursuant to Section 12.02. The adjusted Stock Prices will
equal the Stock Prices applicable immediately prior to such adjustment,
multiplied by a fraction, the numerator of which is the Conversion Rate
immediately prior to such adjustment and the denominator of which is the
Conversion Rate as so adjusted. The number of Additional Shares set forth in
such table will be adjusted in the same manner as the Conversion Rate as set
forth in Section 12.02.
(d) Settlement of Securities tendered for conversion in connection with a
Fundamental Change pursuant to clause (2) of the definition of "Fundamental
Change" as to which the Conversion Rate will be increased by Additional Shares
pursuant to this Section 12.03 shall occur as follows:
(i) if the last day of the Observation Period for such Securities is
on or prior to the fourth Trading Day immediately preceding the Effective
Date, the Company shall deliver the Settlement Amount (together with cash
in lieu of fractional shares), determined in accordance with Section
12.01(c) and Section 12.01(d) above, on the third Business Day immediately
following the last day of the Observation Period; provided that such
Settlement Amount and related Daily Conversion Values shall be based on the
Conversion Rate without giving effect to the Additional Shares to be added
thereto as set forth in this subsection. As soon as practicable following
the Effective Date, the Company shall calculate an increased Settlement
Amount for such Securities (based upon the same Observation Period and the
same Daily VWAP for each Trading Day in such Observation Period) as if the
Conversion Rate had been increased by the number of Additional Shares
pursuant to this subsection. Promptly following the Effective Date, the
Company shall deliver the excess of the cash portion, if any, and Common
Stock portion, if any, of such increased Settlement Amount over the cash
and Common Stock portions of the Settlement Amount calculated without such
Additional Shares. Any shares of Common Stock to be delivered following the
Effective Date shall be subject to Section 12.04 and shall be delivered in
Reference Property.
71
(ii) If the last day of the Observation Period for such Securities is
after the fourth Trading Day immediately preceding the Effective Date, the
Company shall deliver the Settlement Amount (together with cash in lieu of
fractional shares) in accordance with Section 12.01(c) and Section 12.01(d)
above (such determination, for the avoidance of doubt, to include the
number of Additional Shares to be added to the Conversion Rate as set forth
in this subsection) on the later to occur of (x) the Business Day following
the Effective Date and (y) the third Business Day immediately following the
last day of the Observation Period. Any shares of Common Stock to be
delivered following the Effective Date shall be subject to Section 12.04
and shall be delivered in Reference Property.
In no event shall the Company pay any such increase to the Settlement Amount if
the transaction causing the increase to the Conversion Rate pursuant to this
subsection never becomes effective.
Section 12.04. Effect of Reclassification, Consolidation, Merger or Sale.
(a) If any of the following events occur:
(i) any recapitalization, reclassification or change of the outstanding
shares of Common Stock (other than a subdivision or combination to which Section
12.02(a) applies);
(ii) any consolidation, merger, binding share exchange or combination of
the Company with another Person as a result of which holders of Common Stock
shall be entitled to receive cash, securities or other property (or any
combination thereof) with respect to or in exchange for such Common Stock;
(iii) any conveyance, transfer, sale, lease or other disposition to any
other Person of all or substantially all of the properties and assets of the
Company and its Subsidiaries as a result of which holders of Common Stock
received cash, securities or other property (or any combination thereof) with
respect to or in exchange for such Common Stock; or
(iv) any statutory share exchange as a result of which holders of Common
Stock received cash, securities or other property (or any combination thereof)
with respect to or in exchange for such Common Stock,
(any such event or transaction, a "REORGANIZATION EVENT"), the Securities will
become convertible into the kind and amount of consideration that Holders of
Common Stock received in such Reorganization Event (the "REFERENCE PROPERTY")
upon such Reorganization Event by a holder of a number of shares of Common Stock
equal to the Conversion Rate immediately prior to such Reorganization Event and
the Company or successor Person shall execute a supplemental indenture to such
effect. For purposes of the foregoing, the type and amount of consideration that
a holder of Common Stock would have been entitled to receive in the case of any
such Reorganization Event that causes the Common Stock to be converted into the
right to receive more than a single type of consideration (determined based in
part upon any form of stockholder election) will be deemed to be the weighted
average of the types and amounts of consideration received by the holders of
Common Stock that affirmatively make such an election. In all cases,
72
the provisions under Section 12.01 shall continue to apply with respect to the
calculation of the Settlement Amount. Such supplemental indenture shall provide
for provisions and adjustments which shall be as nearly equivalent as may be
practicable to the provisions and adjustments provided for in this Article 12,
Article 9 and Article 11 and the definition of Fundamental Change, as
appropriate, as determined in good faith by the Company (which determination
shall be conclusive and binding), to make such provisions apply to such other
Person if different from the original issuer of the Securities.
(b) Following the effective time of any such Reorganization Event,
settlement of Securities converted shall be in cash and units of Reference
Property determined in accordance with Section 12.01(c) above based on the Daily
Conversion Value and Daily VWAP of such Reference Property. For the purposes of
determining such Daily Conversion Value and Daily VWAP, (i) if the Reference
Property includes securities for which the price can be determined in a manner
contemplated by the definition of Daily VWAP, then the value of such securities
shall be determined in accordance with the principles set forth in such
definition, as determined in good faith by the Company (which determination
shall be conclusive and binding); (ii) if the Reference Property includes other
property (other than securities as to which clause (i) applies or cash), then
the value of such property shall be the Fair Market Value of such property as
determined by the Company's Board of Directors in good faith; and (iii) if the
Reference Property includes cash, then the value of such cash shall be the
amount thereof.
(c) Any issuer of securities included in the Reference Property shall
execute an amendment to the Registration Rights Agreement (to the extent any
Registrable Securities (as defined therein) remain outstanding) to make the
provisions thereof applicable to such securities included in the Applicable
Consideration.
(d) The Company shall cause notice of the execution of any supplemental
indenture required by this Section 12.04 to be mailed to each Holder, in the
manner provided in Section 13.02, within 20 calendar days after execution
thereof. Failure to deliver such notice shall not affect the legality or
validity of such supplemental indenture.
(e) The above provisions of this Section 12.04 shall similarly apply to
successive Reorganization Events.
(f) If this Section 12.04 applies to any event or occurrence, Section 12.02
shall not apply in respect of such event or occurrence.
(g) The Company shall not become a party to any Reorganization Event unless
its terms are consistent with the foregoing. None of the foregoing provisions
shall affect the right of a Holder of Securities, if any, to convert the
Securities into cash and shares of Common Stock, if any, as set forth in Section
12.01 prior to the effective time of such Reorganization Event.
Section 12.05. Responsibility of Trustee. The Trustee and any other
Conversion Agent shall not at any time be under any duty or responsibility to
the Company or any Holder of Securities to determine the Conversion Rate, or
whether any facts exist which may require any
73
adjustment of the Conversion Rate, or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to the method
employed in making the same. The Trustee and any other Conversion Agent shall
not be accountable with respect to the validity or value (or the kind or amount)
of any shares of Common Stock, or of any securities or property, which may at
any time be issued or delivered upon the conversion of any Security; and the
Trustee and any other Conversion Agent make no representations with respect
thereto. Neither the Trustee nor any Conversion Agent shall be responsible for
any failure of the Company to issue, transfer or deliver any cash or shares of
Common Stock or stock certificates or other securities or property upon the
surrender of any Security for the purpose of conversion or to comply with any of
the duties, responsibilities or covenants of the Company contained in this
Article 12. Without limiting the generality of the foregoing, neither the
Trustee nor any Conversion Agent shall be under any responsibility to determine
the correctness of any provisions contained in any supplemental indenture
entered into pursuant to Section 12.04 relating either to the kind or amount of
shares of stock or securities or property (including cash) receivable by Holders
upon the conversion of their Securities after any Reorganization Event or to any
adjustment to be made with respect thereto, but, subject to the provisions of
Section 7.01, may accept as conclusive evidence of the correctness of any such
provisions, and shall be protected in relying upon, an Officers' Certificate
with respect thereto.
Section 12.06. Notice to Holders Prior to Certain Actions. Except where
notice is required pursuant to Section 12.01(iii)(A), in case:
(a) the Company shall declare a dividend (or any other distribution) on its
Common Stock that would require an adjustment in the Conversion Rate pursuant to
Section 12.02; or
(b) the Company shall authorize the granting to the holders of all or
substantially all of its Common Stock of rights or warrants to subscribe for or
purchase any share of any class or any other rights or warrants that would
require an adjustment in the Conversion Rate pursuant to Section 12.02; or
(c) of any reclassification or reorganization of the Common Stock of the
Company (other than a subdivision or combination of its outstanding Common
Stock, or a change in par value, or from par value to no par value, or from no
par value to par value), or of any consolidation or merger to which the Company
is a party and for which approval of any stockholders of the Company is
required, or of the sale or transfer of all or substantially all of the assets
of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or winding up
of the Company;
the Company shall cause to be filed with the Trustee and to be mailed to each
Holder of Securities in the manner provided in Section 13.02, as promptly as
possible but in any event at least three calendar days prior to the applicable
date hereinafter specified, a notice stating (x) the date on which a record is
to be taken for the purpose of such dividend, distribution or rights or
warrants, or, if a record is not to be taken, the date as of which the holders
of Common Stock of
74
record to be entitled to such dividend, distribution or rights are to be
determined, or (y) the date on which such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up is expected to
become effective or occur, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
Failure to give such notice, or any defect therein, shall not affect the
legality or validity of such dividend, distribution, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
Section 12.07. Stockholder Rights Plan. To the extent that the Company has
a rights plan in effect upon conversion of the Securities into Common Stock, the
Holder will receive, in addition to the Common Stock, the rights under the
rights plan, unless prior to any conversion, the rights have separated from the
Common Stock, in which case, and only in such case, the Conversion Rate will be
adjusted at the time of separation as if the Company distributed to all holders
of Common Stock shares of the Company's Capital Stock, evidences of indebtedness
or assets as described in Section 12.02(c) above, subject to readjustment in the
event of the expiration, termination or redemption of such rights. In lieu of
any such adjustment, the Company may amend such applicable stockholder rights
agreement to provide that upon conversion of the Securities the Holders will
receive, in addition to the Common Stock issuable upon such conversion, the
rights which would have attached to such Common Stock if the rights had not
become separated from the Common Stock under such applicable stockholder rights
agreement.
ARTICLE 13
MISCELLANEOUS
Section 13.01. TIA Controls. If any provision of this Indenture limits,
qualifies or conflicts with another provision which is required to be included
in this Indenture by the TIA, the provision required by the TIA shall control.
Section 13.02. Notices. Any notice or communication shall be in writing
(including telecopy promptly confirmed in writing) and delivered in person or
mailed by first-class mail addressed as follows:
if to the Company or any Subsidiary Guarantor:
Calgon Carbon Corporation, or name of Subsidiary Guarantor
P.O. Box 717
Pittsburgh, PA 15230-0717
Attention: Dennis Sheedy, Esq.
Fax number: 412-787-4511
With a copy to:
Kirkpatrick & Lockhart Nicholson Graham LLP
75
Henry W. Oliver Building
535 Smithfield Street
Pittsburgh, PA 15222-2312
Attention: Elliot S. Davis, Esq.
Fax number: 412-355-6501
if to the Trustee:
The Bank of New York
101 Barclay Street - Floor 8W
New York, NY 10286
Attention: Corporate Trust Administration
Fax: 212-815-5704
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed to a registered Holder shall be mailed
to the Holder at the Holder's address as it appears on the registration books of
the Registrar and shall be sufficiently given if so mailed within the time
prescribed.
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, it is duly given, whether
or not the addressee receives it, except that notices to the Trustee shall be
effective only upon receipt.
Section 13.03. Communication by Holders with other Holders. Holders may
communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Securities. The Company, the Trustee,
the Registrar and anyone else shall have the protection of TIA Section 312(c).
Section 13.04. Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Company to the Trustee to take or refrain from
taking any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate in form and substance reasonably satisfactory
to the Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
76
Section 13.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(a) a statement that the individual making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such individual,
such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual matters
on an Officers' Certificate or on certificates of public officials.
Section 13.06. When Securities Are Disregarded. In determining whether the
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities 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 disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which a Trust Officer of the Trustee actually knows are so owned
shall be so disregarded. Also, subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
Section 13.07. Rules by Trustee, Paying Agent and Registrar. The Trustee
may make reasonable rules for action by, or a meeting of, Holders. The Registrar
and the Paying Agent may make reasonable rules for their functions.
Section 13.08. Legal Holidays. A "LEGAL HOLIDAY" is a Saturday, a Sunday or
other day on which commercial banking institutions are authorized or required to
be closed in New York City. If a payment date is a Legal Holiday, payment shall
be made on the next succeeding day that is not a Legal Holiday, and no interest
or Additional Interest, if any, shall accrue for the intervening period. If a
Regular Record Date is a Legal Holiday, the record date shall not be affected.
Section 13.09. Governing Law; Waiver of Jury Trial. THIS INDENTURE AND THE
SECURITIES AND SUBSIDIARY GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. EACH OF THE COMPANY, THE
SUBSIDIARY GUARANTORS AND THE TRUSTEE
77
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OF OR
RELATING TO EACH OF THIS INDENTURE, THE NOTES OR THE SUBSIDIARY GUARANTEES.
Section 13.10. No Recourse Against Others. An incorporator, director,
officer, employee, Affiliate or stockholder of the Company, solely by reason of
this status, shall not have any liability for any obligations of the Company
under the Securities, this Indenture or for any claim based on, in respect of or
by reason of such obligations or their creation. By accepting a Security, each
Holder shall waive and release all such liability. The waiver and release shall
be part of the consideration for the issue of the Securities.
Section 13.11. Successors. All agreements of the Company and the Subsidiary
Guarantors in this Indenture and the Securities and the Subsidiary Guarantees
shall bind their respective successors. All agreements of the Trustee in this
Indenture shall bind its successors.
Section 13.12. Multiple 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. One signed copy is enough to prove this
Indenture.
Section 13.13. Qualification of Indenture. The Company shall qualify this
Indenture under the TIA in accordance with the terms and conditions of the
Registration Rights Agreement and shall pay all reasonable costs and expenses
(including attorneys' fees and expenses for the Company, the Trustee and the
Holders) incurred in connection therewith, including, but not limited to, costs
and expenses of qualification of this Indenture and the registration of the
resale of the Securities and the Subsidiary Guarantees and the printing of this
Indenture and the Securities.
Section 13.14. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
Section 13.15. Severability Clause. In case any provision in this Indenture
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby and such provision shall be ineffective only to the extent of
such invalidity, illegality or unenforceability.
Section 13.16. Calculations. Except as otherwise provided herein, the
Company will be responsible for making all calculations called for under the
Indenture and the Securities. The Company will make all such calculations in
good faith and, absent manifest error, its calculations will be final and
binding on Holders. The Company upon request will provide a schedule of its
calculations to each of the Trustee and the Conversion Agent, and each of the
Trustee and Conversion Agent is entitled to rely conclusively upon the accuracy
of the Company's
78
calculations without independent verification. The Trustee will deliver a copy
of such schedule to any Holder upon the request of such Holder.
[Remainder of the page intentionally left blank]
79
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
CALGON CARBON CORPORATION
By: /s/ Leroy M. Ball
------------------------------------
Name: Leroy M. Ball
Title: Senior Vice President and Chief
Financial Officer
CALGON CARBON INVESTMENTS, INC.
By: /s/ Leroy M. Ball
------------------------------------
Name: Leroy M. Ball
Title: Vice President and Secretary
BSC COLUMBUS, LLC
By: /s/ Leroy M. Ball
------------------------------------
Name: Leroy M. Ball
Title: Manager
CCC COLUMBUS, LLC
By: /s/ Leroy M. Ball
------------------------------------
Name: Leroy M. Ball
Title: Manager
THE BANK OF NEW YORK, AS TRUSTEE
By: /s/ Julie Salovitch-Miller
------------------------------------
Name: Julie Salovitch-Miller
Title: Vice President
SCHEDULE A
The following table sets forth the number of shares by which the Conversion Rate
will be increased per $1,000 principal amount of Securities pursuant to Section
12.03 of this Indenture:
STOCK PRICE
EFFECTIVE
DATE $4.25 $5.25 $6.25 $7.25 $8.25 $9.25 $10.25 $11.25 $12.25 $13.25 $14.25 $15.25 $16.25 $17.25
--------- ------- ------- ------- ------- ------- ------- ------ ------ ------ ------ ------ ------ ------ ------
August 18,
2006 .. 39.2157 31.6481 22.8662 17.2623 13.4283 10.6597 8.5806 6.9704 5.6942 4.6646 3.8228 3.1278 2.5492 2.0655
August 15,
2007 .. 39.2157 29.6073 20.8726 15.5139 11.9576 9.4472 7.5876 6.1590 5.0314 4.1221 3.3780 2.7624 2.2492 1.8182
August 15,
2008 .. 39.2157 26.8382 18.1392 13.1267 9.9679 7.8204 6.2667 5.0879 4.1619 3.4145 2.8012 2.2912 1.8630 1.5027
August 15,
2009 .. 39.2157 22.9568 14.3091 9.8507 7.3024 5.6859 4.5633 3.7259 3.0689 2.5356 2.0931 1.7204 1.4041 1.1343
August 15,
2010 .. 39.2157 16.9913 8.6349 5.3064 3.8035 2.9780 2.4316 2.0210 1.6901 1.4136 1.1777 0.9741 0.7971 0.6426
August 15,
2011 .. 39.2157 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000
Schedule A
EXHIBIT A
[FORM OF FACE OF SECURITY]
[Restricted Securities Legend, if applicable]
[Global Security Legend, if applicable]
No. [___]
CUSIP NO.: [________]
ISIN: [________]
5.00% Convertible Senior Notes due 2036
Calgon Carbon Corporation, a Delaware corporation, promises to pay to [Cede
& Co.], or registered assigns, the principal sum of [______ Million Dollars
($_______)] or such amount as is indicated in the records of the Trustee and
DTC, on August 15, 2036.
Interest Payment Dates: February 15 and August 15
Regular Record Dates: February 1 and August 1
Additional provisions of this Security are set forth on the attached "Terms
of Securities."
A-1
Dated:
---------------
CALGON CARBON CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
The Bank of New York, as Trustee,
certifies that this is one of the
Securities referred to in the
Indenture.
By:
---------------------------------
Authorized Signatory
A-2
TERMS OF SECURITIES
5.00% Convertible Senior Notes due 2036
Calgon Carbon Corporation, a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), issued these Securities under an Indenture dated
as of August 18, 2006 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), among the Company, the
Subsidiary Guarantors and the Trustee, to which reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company, the Subsidiary Guarantors and
the Holders.
To Guarantee the due and punctual payment of the principal and interest
(including any Additional Interest), if any, on the Securities and all other
amounts payable by the Company under the Indenture and the Securities when and
as the same shall be due and payable, whether at maturity, by acceleration, by
redemption, by repurchase or otherwise, according to the terms of the Securities
and the Indenture, the Subsidiary Guarantors have fully and unconditionally
Guaranteed (and future guarantors, together with the Subsidiary Guarantors, will
fully and unconditionally Guarantee), jointly and severally, such obligations on
a senior basis pursuant to the terms of the Indenture.
1) Interest
The Company promises to pay interest on the principal amount of this
Security at the rate of 5.00% per annum.
The Company will pay interest semiannually on February 15 and August 15 of
each year commencing February 15, 2007. Interest on the Securities will accrue
from the most recent date to which interest has been paid on the Securities or,
if no interest has been paid, from August 18, 2006. Interest will be computed on
the basis of a 360-day year of twelve 30-day months; provided, however, that for
any period other than a full interest period, interest will be computed on the
basis of the actual number of days elapsed during the period and a 365-day year.
2) Method of Payment
By no later than 11:00 a.m., New York City time, on the date on which any
principal of or interest (including any Additional Interest), on any Security is
due and payable, the Company shall deposit with the Paying Agent money
sufficient to pay such amount. The Company will pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts.
Payments in respect of Securities represented by a Global Security
(including principal and interest (including any Additional Interest)) will be
made by wire transfer of immediately available funds to the accounts specified
by The Depository Trust Company. The Company will pay principal of Definitive
Securities at the office or agency designated by the Company for such
A-3
purpose. Interest (including any Additional Interest), on Definitive Securities
will be payable (i) to Holders having an aggregate principal amount of
$5,000,000 or less, by check mailed to the Holders of these Securities and (ii)
to Holders having an aggregate principal amount of more than $5,000,000, either
by check mailed to each Holder or, upon application by a Holder to the Registrar
not later than the relevant record date, by wire transfer in immediately
available funds to that Holder's account within the United States, which
application shall remain in effect until the Holder notifies, in writing, the
Registrar to the contrary.
3) Redemption
No sinking fund is provided for the Securities. Subject to certain
conditions specified in the Indenture, on or after August 20, 2011, the
Securities will be redeemable, at the option of the Company, in whole at any
time or in part from time to time, at a Redemption Price specified in the
Indenture.
4) Purchase at the Option of the Holder Upon a Fundamental Change; Purchase By
the Company at the Option of the Holder
a) If a Fundamental Change shall occur at any time, each Holder shall
have the right, at such Holder's option and subject to the terms and
conditions of the Indenture, to require the Company to purchase all or
a portion of its Securities at a Fundamental Change Purchase Price
specified in the Indenture.
b) Subject to the terms and conditions of the Indenture, a Holder shall
have the option to require the Company to purchase all or a portion of
its Securities held by such Holder on each of August 15, 2011, August
15, 2016, and August 15, 2026, at a Purchase Price specified in the
Indenture.
5) Conversion
Subject to the conditions and procedures set forth in the Indenture, and,
prior to June 15, 2011, upon satisfaction of conditions and during the periods
specified in the Indenture, a Holder may convert Securities, on or prior to 5:00
p.m., New York City time, on the Business Day immediately preceding Stated
Maturity, into shares of Common Stock at the Conversion Rate. Upon conversion,
the Company will satisfy its conversion obligations in cash and shares of Common
Stock, if any.
The initial Conversion Rate is 196.0784 shares of Common Stock per $1,000
principal amount of Securities, subject to adjustment in certain events
described in the Indenture. Upon conversion, the Company will pay cash and
shares of Common Stock, if any, based on a Daily Conversion Value calculated on
a proportionate basis for each day of the 25-day Observation Period, as set
forth in the Indenture. The Company shall deliver cash in lieu of any fractional
share of Common Stock.
A-4
A Holder may convert a portion of the Securities only if the principal
amount of such portion is $1,000 or a multiple of $1,000. No payment or
adjustment shall be made for dividends on the Common Stock except as provided in
the Indenture.
6) Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations of
principal amount of $1,000 and multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange of
Securities (i) for a period of 15 calendar days prior to the mailing of a notice
of redemption of Securities selected for redemption under Article 5 of the
Indenture; (ii) so selected for redemption or, if a portion of any Security is
selected for redemption, the portion thereof selected for redemption; or (iii)
surrendered for conversion or, if a portion of any Security is surrendered for
conversion, the portion thereof surrendered for conversion.
7) Persons Deemed Owners
The registered Holder of this Security may be treated as the owner of it
for all purposes.
8) Unclaimed Money
If money for the payment of principal or interest (including any Additional
Interest) remains unclaimed for two years, the Trustee or Paying Agent shall pay
the money back to the Company. After any such payment, Holders entitled to the
money must look only to the Company and not to the Trustee for payment.
9) Amendment, Waiver
Subject to certain exceptions, the Indenture contains provisions permitting
an amendment of the Indenture or the Securities with the written consent of the
Holders of at least a majority in principal amount of the then outstanding
Securities and the waiver of any Event of Default (other than with respect to
nonpayment or in respect of a provision that cannot be amended without the
written consent of each Holder affected) or noncompliance with any provision
with the written consent of the Holders of a majority in principal amount of the
then outstanding Securities.
In addition, the Indenture permits an amendment of the Indenture or the
Security without the consent of any Holder under circumstances specified in the
Indenture.
10) Defaults and Remedies
If an Event of Default specified in the Indenture occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the Securities
may declare all the Securities by notice to the Company to be due and payable
immediately. In addition, certain specified Events
A-5
of Default will cause the Securities to become immediately due and payable
without further action by the Holders.
Holders may not enforce the Indenture or the Securities except as provided
in the Indenture. The Trustee may refuse to enforce the Indenture or the
Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Securities
may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders notice of any continuing Default or Event of Default
(except a Default or Event of Default in payment of principal or interest
(including any Additional Interest)) if it determines that withholding notice is
in their interest.
11) Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
12) No Recourse Against Others
An incorporator, director, officer, employee, Affiliate or stockholder, of
the Company, solely by reason of this status, shall not have any liability for
any obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Securities.
13) Authentication
This Security shall not be valid until an authorized signatory of the
Trustee manually authenticates this Security.
14) 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 entirety), JT
TEN (= joint tenants with rights of survivorship and not as tenants in common),
CUST (=custodian) and U/G/M/A (= Uniform Gift to Minors Act).
15) 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 Securities and has directed the Trustee to 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
A-6
printed on the Securities or as contained in any notice of redemption, and
reliance may be placed only on the other identification numbers placed thereon.
16) Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK.
The Company will furnish to any Holder upon written request and without
charge to the Holder a copy of the Indenture which has in it the text of this
Security. Requests may be made to:
Calgon Carbon Corporation
P.O. Box 717
Pittsburgh, PA 15230-0717
Attention: Dennis Sheedy, Esq.
Fax number: 412-787-4511
A-7
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ___________ agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
- --------------------------------------------------------------------------------
Date: Your Signature:
------------------------------- ------------------------
Signature Guarantee:
-----------------------------------------------------------
(Signature must be guaranteed)
- --------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program, pursuant to
S.E.C. Rule 17Ad-15.
In connection with any transfer or exchange of any of the Securities evidenced
by this certificate occurring prior to the date that is two years after the
later of the date of original issuance of such Securities and the last date, if
any, on which such Securities were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW:
[ ] acquired for the undersigned's own account, without transfer; or
[ ] transferred to the Company; or
[ ] transferred pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Securities Act"); or
[ ] transferred pursuant to and in compliance with Rule 144A under the
Securities Act; or
[ ] transferred pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any Person other
than the registered Holder thereof;
provided, however, that if box (5) is checked, the Trustee or the Company may
require, prior to registering any such transfer of the Securities, in their sole
discretion, such legal opinions, certifications and other information as the
Trustee or the Company may reasonably request to confirm that such transfer is
being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act, such as the exemption
provided by Rule 144 under such Act.
----------------------------------------
Signature:
Signature Guarantee:
- ------------------------------------- ----------------------------------------
(Signature must be guaranteed) Signature:
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program, pursuant to
S.E.C. Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF (1) OR (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Security for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act of 1933, as amended,
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
- -------------------------------------
Dated:
FORM OF CONVERSION NOTICE
To: Calgon Carbon Corporation
The undersigned registered Holder of this Security hereby exercises the
option to convert this Security, or portion hereof (which is $1,000 principal
amount or a multiple thereof) designated below, for cash and shares of Common
Stock of Calgon Carbon Corporation, if any, in accordance with the terms of the
Indenture referred to in this Security, and directs that cash and the shares, if
any, issuable and deliverable upon such conversion, and any Securities
representing any unconverted principal amount hereof, be issued and delivered to
the registered Holder hereof unless a different name has been indicated below.
If cash, shares or any portion of this Security not converted are to be issued
in the name of a Person other than the undersigned, the undersigned shall pay
all transfer taxes payable with respect thereto.
This notice shall be deemed to be an irrevocable exercise of the option to
convert this Security.
Dated: ----------------------------------------
------------------------
----------------------------------------
Signature(s)
The signature(s) should be guaranteed by
an eligible guarantor institution
(banks, stockbrokers, savings and loan
associations and credit unions) with
membership in an approved signature
guarantee medallion program, pursuant to
S.E.C. Rule 17Ad-15.
----------------------------------------
Signature Guarantee
Fill in for registration of shares if
to be delivered, and Securities if to
be issued other than to and in the
name of registered holder:
- -------------------------------------
(Name) Principal amount to be converted (if
less than all):
$_________
- -------------------------------------
(Street Address)
- ------------------------------------- ----------------------------------------
(City state and zip code) Social Security or Other Taxpayer Number
Please print name and address
FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE
To: Calgon Carbon Corporation
The undersigned registered Holder of this Security hereby acknowledges
receipt of a notice from Calgon Carbon Corporation (the "Company") as to the
occurrence of a Fundamental Change with respect to the Company and requests and
instructs the Company to repurchase this Security, or the portion hereof (which
is $1,000 principal amount or a multiple thereof) designated below, in
accordance with the terms of the Indenture referred to in this Security and
directs that the check or Common Stock of the Company, as applicable, in payment
for this Security or the portion thereof and any Securities representing any
unrepurchased principal amount hereof, be issued and delivered to the registered
Holder hereof unless a different name has been indicated below. If any portion
of this Security not repurchased is to be issued in the name of a Person other
than the undersigned, the undersigned shall pay all transfer taxes payable with
respect thereto.
Dated: ----------------------------------------
------------------------
----------------------------------------
Signature(s)
The signature(s) should be guaranteed by
an eligible guarantor institution
(banks, stockbrokers, savings and loan
associations and credit unions) with
membership in an approved signature
guarantee medallion program, pursuant to
S.E.C. Rule 17Ad-15.
----------------------------------------
Signature Guarantee
Fill in if a check is to be issued, or Securities are to be issued, other than
to and in the name of registered Holder:
- -------------------------------------
(Name) Principal amount to be purchased (if
less than all): $___________
- -------------------------------------
(Street Address)
- ------------------------------------- ----------------------------------------
(City state and zip code) Social Security or Other Taxpayer Number
Please print name and address
FORM OF PURCHASE NOTICE
To: Calgon Carbon Corporation
The undersigned registered Holder of this Security hereby acknowledges
receipt of a notice from Calgon Carbon Corporation (the "Company") as to the
Holder's option to require the Company to repurchase this Security and requests
and instructs the Company to repurchase this Security, or the portion hereof
(which is $1,000 principal amount or a multiple thereof) designated below, in
accordance with the terms of the Indenture referred to in this Security and
directs that the check or Common Stock of the Company, as applicable, in payment
for this Security or the portion thereof and any Securities representing any
unrepurchased principal amount hereof, be issued and delivered to the registered
Holder hereof unless a different name has been indicated below. If any portion
of this Security not repurchased is to be issued in the name of a Person other
than the undersigned, the undersigned shall pay all transfer taxes payable with
respect thereto.
Dated: ----------------------------------------
------------------------
----------------------------------------
Signature(s)
The signature(s) should be guaranteed by
an eligible guarantor institution
(banks, stockbrokers, savings and loan
associations and credit unions) with
membership in an approved signature
guarantee medallion program, pursuant to
S.E.C. Rule 17Ad-15.
----------------------------------------
Signature Guarantee
Fill in if a check is to be issued, or Securities are to be issued, other than
to and in the name of registered Holder:
- -------------------------------------
(Name) Principal amount to be purchased (if
less than all): $___________
- -------------------------------------
(Street Address)
- ------------------------------------- ----------------------------------------
(City state and zip code) Social Security or Other Taxpayer Number
Please print name and address
EXHIBIT B
FORM OF INDENTURE SUPPLEMENT TO ADD SUBSIDIARY GUARANTORS
This Supplemental Indenture, dated as of __________ (this "Supplemental
Indenture" or "Guarantee"), among [name of future Subsidiary Guarantor] (the
"Additional Guarantor"), Calgon Carbon Corporation (together with its successors
and assigns, the "Company"), each other then-existing Subsidiary Guarantor under
the Indenture referred to below, and The Bank of New York, as Trustee under the
Indenture referred to below.
WITNESSETH:
WHEREAS, the Company, the Subsidiary Guarantors and the Trustee have
heretofore executed and delivered an Indenture, dated as of August 18, 2006 (as
amended, supplemented, waived or otherwise modified, the "Indenture"), providing
for the issuance of an aggregate principal amount of $75.0 million of 5.00%
Convertible Senior Notes due 2036 of the Company (the "Securities");
WHEREAS, Section 3.03 of the Indenture provides that the Company is
required to cause each domestic Subsidiary that becomes a party to the Credit
Agreement, whether as a borrower, a co-borrower or a guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which such
Subsidiary will unconditionally Guarantee, on a joint and several basis with the
other Subsidiary Guarantors, the Guaranteed Obligations, as provided under
Article 10 of the Indenture; and
WHEREAS, pursuant to Section 9.01(d) of the Indenture, the Trustee and the
Company are authorized to execute and deliver this Supplemental Indenture to
amend the Indenture, without the consent of any Securityholder;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Additional Guarantor, the Company, the other Subsidiary Guarantors and the
Trustee mutually covenant and agree for the equal and ratable benefit of the
Holders of the Securities as follows:
ARTICLE I
Definitions
SECTION 1.1. Defined Terms. As used in this Supplemental Indenture, terms
defined in the Indenture or in the preamble or recital hereto are used herein as
therein defined, except that the term "Holders" in this Guarantee shall refer to
the term "Holders" as defined in the Indenture and the Trustee acting on behalf
or for the benefit of such Holders. The words "herein," "hereof" and "hereby"
and other words of similar import used in this Supplemental Indenture refer to
this Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE II
Agreement to be Bound; Subsidiary Guarantee
SECTION 2.1. Agreement to be Bound. The Additional Guarantor hereby becomes
a party to the Indenture as a Subsidiary Guarantor and as such will have all of
the rights and be subject to all of the obligations and agreements of a
Subsidiary Guarantor under the Indenture. The Additional Guarantor agrees to be
bound by all of the provisions of the Indenture applicable to a Subsidiary
Guarantor and to perform all of the obligations and agreements of a Subsidiary
Guarantor under the Indenture.
SECTION 2.2. Subsidiary Guarantee. The Additional Guarantor fully and
unconditionally Guarantees to each Holder of the Securities and the Trustee the
Guaranteed Obligations pursuant to Article 10 of the Indenture on a senior
basis.
ARTICLE III
Miscellaneous
SECTION 3.1. Notices. All notices and other communications to the
Additional Guarantor shall be given as provided in the Indenture to the
Additional Guarantor, at its address set forth below, with a copy to the Company
as provided in the Indenture for notices to the Company.
SECTION 3.2. Parties. Nothing expressed or mentioned herein is intended or
shall be construed to give any Person, firm or corporation, other than the
Holders and the Trustee, any legal or equitable right, remedy or claim under or
in respect of this Supplemental Indenture or the Indenture or any provision
herein or therein contained.
SECTION 3.3. Governing Law. This Supplemental Indenture shall be governed
by, and construed in accordance with, the law of the State of New York.
SECTION 3.4. Severability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.
SECTION 3.5. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every Holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Trustee makes no representation or warranty as to the validity or sufficiency of
this Supplemental Indenture.
SECTION 3.6. Counterparts. The parties hereto may sign one or more copies
of this Supplemental Indenture in counterparts, all of which together shall
constitute one and the same agreement.
SECTION 3.7. Headings. The headings of the Articles and the sections in
this Guarantee are for convenience of reference only and shall not be deemed to
alter or affect the meaning or interpretation of any provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW SUBSIDIARY GUARANTOR],
as a Subsidiary Guarantor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
-------------------------------
CALGON CARBON CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[CALGON CARBON INVESTMENTS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BSC COLUMBUS, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CCC COLUMBUS, LLC
By:
------------------------------------
Name:
----------------------------------
Title:]
--------------------------------
THE BANK OF NEW YORK, as Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------