Exhibit 4.1
FORM
OF
FIRST
SUPPLEMENTAL INDENTURE
by and
between
CHAMPION ENTERPRISES, INC.
AND
WELLS
FARGO BANK, N.A.
as
Trustee
Dated
as of November 2, 2007
Supplemental to Indenture for Senior Debt Securities
Dated
as of November 2, 2007
2.75%
Convertible Senior Notes due 2037
Table of Contents
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ARTICLE 1
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Definitions
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Section 1.01
. Scope of First Supplemental Indenture
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Section 1.02
. Definitions
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ARTICLE 2
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Issue, Description, Execution,
Registration
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and Exchange of Notes
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Section 2.01
. Designation and Amount
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Section 2.02
. Form of Notes
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Section 2.03
. Date and Denomination of Notes; Payments of Interest
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Section 2.04
. Payments of Additional Interest
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Section 2.05
. Exchange and Registration of Transfer of Notes;
Depositary
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Section 2.06
. CUSIP Numbers
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Section 2.07
. Additional Notes; Repurchases
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Section 2.08
. Contingent Debt Tax Treatment
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Section 2.09
. Calculation of Tax Original Issue Discount
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ARTICLE 3
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Particular Covenants of the
Company
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Section 3.01
. Payment of Principal, Premium, Interest and Additional
Interest
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Section 3.02
. Maintenance of Office or Agency
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Section 3.03
. Existence
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Section 3.04
. Stay, Extension and Usury Laws
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Section 3.05
. Compliance Certificate; Statements as to Defaults
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Section 3.06
. Additional Interest
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Section 3.07
. Further Instruments and Acts
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Section 3.08
. Reporting Obligations
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ARTICLE 4
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Defaults and Remedies
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Section 4.01
. Additional Events of Default
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Section 4.02
. Sole Remedy for Failure to Report
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ARTICLE 5
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Noteholders’ Meetings
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Section 5.01
. Purpose of Meetings
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Section 5.02
. Call of Meetings by Trustee
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Table of Contents
(continued)
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Section 5.03
. Call of Meetings by Company or Noteholders
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Section 5.04
. Qualifications for Voting
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Section 5.05
. Regulations
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Section 5.06
. Voting
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Section 5.07
. No Delay of Rights by Meeting
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ARTICLE 6
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Modifications and
amendments
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Section 6.01
. Modifications and Amendments Without Consent of
Noteholders
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Section 6.02
. Modifications and Amendments With Consent of
Noteholders
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ARTICLE 7
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Consolidation, Merger, Sale, Conveyance
and Lease
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Section 7.01
. Company May Consolidate, Etc.
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Section 7.02
. Successor Corporation to Be Substituted
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Section 7.03
. Opinion of Counsel to Be Given Trustee
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ARTICLE 8
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Conversion of Notes
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Section 8.01
. Right to Convert
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Section 8.02
. Conversion Procedure
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Section 8.03
. Increased Applicable Conversion Rate Applicable to Certain
Notes Surrendered in Connection with Make-Whole Fundamental
Changes
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Section 8.04
. Adjustment of Base Conversion Rate
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Section 8.05
. Shares to Be Fully Paid
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Section 8.06
. Effect of Reclassification, Consolidation, Merger or
Sale
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Section 8.07
. Certain Covenants
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Section 8.08
. Responsibility of Trustee
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Section 8.09
. Notice to Holders Prior to Certain Actions
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Section 8.10
. Shareholder Rights Plans
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ARTICLE 9
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Repurchase of Notes at Option of
Holders
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Section 9.01
. Repurchase at Option of Holders
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Section 9.02
. Repurchase at Option of Holders upon a Fundamental
Change
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Section 9.03
. Withdrawal of Repurchase Notice or Fundamental Change
Repurchase Notice
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Section 9.04
. Deposit of Repurchase Price or Fundamental Change Repurchase
Price
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ii
Table of Contents
(continued)
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ARTICLE 10
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Optional Redemption of the Notes by the
Company
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Section 10.01
. Optional Redemption
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Section 10.02
. Selection of Notes to Be Redeemed
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Section 10.03
. Notice of Redemption
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ARTICLE 11
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Interest Reduction
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Section 11.01
. Interest Reduction
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Section 11.02
. Interest Reduction Notification
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ARTICLE 12
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Miscellaneous Provisions
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Section 12.01
. Ratification and Incorporation of Original Indenture
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Section 12.02
. Governing Law
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Section 12.03
. Payments on Business Days
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Section 12.04
. No Security Interest Created
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Section 12.05
. Trust Indenture Act
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Section 12.06
. Benefits of Indenture
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Section 12.07
. Calculations
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Section 12.08
. Table of Contents, Headings, Etc
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Section 12.09
. Execution in Counterparts
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Section 12.10
. Severability
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EXHIBITS
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Exhibit A Form
of Note
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A-1 |
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Exhibit B Form
of Notice of Conversion
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B-1 |
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Exhibit C Form
of Fundamental Change Repurchase Notice
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C-1 |
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Exhibit D Form
of Assignment and Transfer
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D-1 |
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Exhibit E Form
of Repurchase Notice
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E-1 |
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iii
FIRST SUPPLEMENTAL INDENTURE dated as
of November 2, 2007 between Champion Enterprises, Inc., a
Michigan corporation, as issuer (hereinafter sometimes called the
“ Company ”, as more fully set forth in
Section 1.02), and Wells Fargo Bank, N.A., a national banking
association organized and existing under the laws of the United
States of America, as trustee (hereinafter sometimes called the
“ Trustee ”, as more fully set forth in
Section 1.02).
W I T
N E S S E T H:
WHEREAS, this First Supplemental
Indenture is supplemental to the Original Indenture; and
WHEREAS, for its lawful corporate
purposes, the Company has duly authorized the issue of its 2.75%
Convertible Senior Notes due 2037 (hereinafter sometimes called the
“ Notes ”), initially in an aggregate principal
amount not to exceed $180,000,000, and in order to provide the
terms and conditions upon which the Notes are to be authenticated,
issued and delivered, the Company has duly authorized the execution
and delivery of this First Supplemental Indenture; and
WHEREAS, pursuant to
Section 2.01 of the Original Indenture, the Company may
establish one or more series of Securities from time to time as
authorized by a supplemental indenture of which the Notes shall be
one such series; and
WHEREAS, the Form of Note, the
certificate of authentication to be borne by each Note, the Form of
Notice of Conversion, the Form of Fundamental Change Repurchase
Notice, the Form of Repurchase Notice and the Form of Assignment
and Transfer to be borne by the Notes are to be substantially in
the forms hereinafter provided for; and
WHEREAS, all acts and things
necessary to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee or a duly authorized
authenticating agent, as in the Indenture provided, the valid,
binding and legal obligations of the Company, and to constitute
these presents a valid agreement according to its terms, have been
done and performed, and the execution of this First Supplemental
Indenture and the issue hereunder of the Notes have in all respects
been duly authorized.
NOW, THEREFORE, THIS FIRST
SUPPLEMENTAL INDENTURE WITNESSETH:
That in order to declare the terms
and conditions upon which the Notes are, and are to be,
authenticated, issued and delivered, and in consideration of the
premises and of the purchase and acceptance of the Notes by the
holders thereof, the Company covenants and agrees with the Trustee
for the equal and proportionate benefit of the respective holders
from time to time of the Notes (except as otherwise provided
below), as follows:
ARTICLE 1
Definitions
Section 1.01 . Scope of First
Supplemental Indenture. The changes, modifications and
supplements to the Original Indenture affected by this First
Supplemental Indenture shall be applicable only with respect to,
and shall only govern the terms of, the Notes, which shall be
limited to $180,000,000 aggregate principal amount Outstanding at
any time and which may be issued from time to time, and shall not
apply to any other Securities that may be issued under the Original
Indenture unless a supplemental indenture with respect to such
other Securities specifically incorporates such changes,
modifications and supplements. The provisions of the First
Supplemental Indenture shall supersede any corresponding or
inconsistent provisions in the Original Indenture.
Section 1.02 .
Definitions. The terms defined in this Section 1.02
(except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this First
Supplemental Indenture and for purposes of the Original Indenture
as it relates to the Notes shall have the respective meanings
specified in this Section 1.02. Except as otherwise provided
in this First Supplemental Indenture, all words, terms and phrases
defined in the Original Indenture (but not otherwise defined
herein) shall have the same meaning herein as in the Original
Indenture. All other terms used in this First Supplemental
Indenture that are defined in the Trust Indenture Act or that are
by reference therein defined in the Securities Act (except as
herein otherwise expressly provided or unless the context otherwise
requires) shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the
date of the execution of this First Supplemental Indenture. The
words “herein,” “hereof,”
“hereunder,” and words of similar import refer to this
First Supplemental Indenture as a whole and not to any particular
Article, Section or other subdivision. The terms defined in this
Article include the plural as well as the singular.“
Additional Interest ” shall have the meanings
specified in Section 4.02.
“ Applicable Conversion
Rate ” means, for each $1,000 principal amount of Notes
to be converted, the sum of the Daily Conversion Rate Fractions for
each Trading Day during the 20 Trading Days in the relevant
Observation Period for such Notes.
“ Base Conversion Price
” on any day means, for each $1,000 principal amount of
Notes, a dollar amount (initially, approximately $20.97) equal to
$1,000 divided by the Base Conversion Rate in effect on such
day.
“ Base Conversion Rate
” means, for each $1,000 principal amount of Notes, 47.6954
shares of Common Stock, subject to adjustment as set forth
herein.
“ Bid Solicitation Agent
” means the agent of the Company appointed to obtain
quotations for the Notes as set forth under the definition of
Trading Price, which such agent shall at no time be an Affiliate of
the Company. The Company may, from time to time, change the Bid
Solicitation Agent.
2
“ Capital Stock ”
means, for any entity, any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of
or interests in (however designated) stock issued by that
entity.
“ close of business
” means 5:00 p.m. (New York City time).
“ Code ” means the
Internal Revenue Code of 1986, as amended from time to time.
“ Commission ”
means the Securities and Exchange Commission.
“ Common Equity ”
of any Person means Capital Stock of such Person that is generally
entitled (a) to vote in the election of directors of such
Person or (b) if such Person is not a corporation, to 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, subject to Section 8.06, shares of common stock of the
Company, par value $1.00 per share, at the date of this First
Supplemental Indenture or shares of any class or classes resulting
from any reclassification or reclassifications thereof and that
have no preference in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Company and that are not subject to redemption
by the Company; provided that if at any time there shall be
more than one such resulting class, the shares of each such class
then so issuable shall be substantially in the proportion that the
total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such
classes resulting from all such reclassifications.
“ Company ” means
Champion Enterprises, Inc., a Michigan corporation, and subject to
the provisions of Article 7, shall include its successors and
assigns.
“ Company Notice ”
shall have the meaning specified in Section 9.01(b).
“ Company Order ”
means a written order of the Company, signed by (a) the
Company’s Chief Executive Officer, President, Executive or
Senior Vice President, Managing Director or any Vice President
(whether or not designated by a number or numbers or word or words
added before or after the title “Vice President”) and
(b) any such other officer designated in clause (a) of
this definition or the Company’s Treasurer or Assistant
Treasurer or Secretary or any Assistant Secretary, and delivered to
the Trustee.
“ Contingent Debt
Regulations ” shall have the meaning specified in
Section 2.08(a).
“ Continuing Director
” means a director who either was a member of the Board of
Directors on October 29, 2007 or who becomes a member of the
Board of Directors subsequent to that date and whose election,
appointment or nomination for election by the shareholders 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
” shall have the meaning specified in
Section 3.02.
3
“ Conversion Date
” shall have the meaning specified in
Section 8.02(c).
“ Conversion Obligation
” shall have the meaning specified in
Section 8.01.
“ Custodian ”
means Wells Fargo Bank, N.A., as custodian for The Depository Trust
Company, with respect to the Notes in global form, or any successor
entity thereto.
“ Daily Conversion Rate
Fraction ” means, in respect of any conversion of Notes,
a number of shares of Common Stock for each Trading Day during the
relevant Observation Period determined as follows:
(a) if
the Last Reported Sale Price of the Common Stock on such Trading
Day is less than or equal to the Base Conversion Price, the Daily
Conversion Rate Fraction for such Trading Day shall be equal to the
Base Conversion Rate divided by 20; and
(b) if
the Last Reported Sale Price of the Common Stock on such Trading
Day is greater than the Base Conversion Price, the Daily Conversion
Rate Fraction for such Trading Day shall be equal to 1/20th of the
following:
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Last Reported Sale
Price |
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of our Common Stock on such
Trading Day |
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| Base Conversion Rate + |
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– Base Conversion
Price |
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x Incremental Share
Factor |
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Last Reported Sale
Price |
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of our Common Stock on such
Trading Day |
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Notwithstanding the foregoing, if the
Daily Conversion Rate Fraction for any Trading Day in the relevant
Observation Period would otherwise be greater than the Daily Share
Cap, the Daily Conversion Rate Fraction for such Trading Day shall
be equal to the Daily Share Cap.
“ Daily Share Cap
” means, in respect of each $1,000 principal amount of Notes,
one-twentieth of 86.8056, subject to adjustment in the same manner
as the Base Conversion Rate as set forth herein.
“ Defaulted Interest
” means any interest on any Note that is payable, but is not
punctually paid or duly provided for, on any Interest Payment
Date.
“ Designated Institution
” shall have the meaning specified in
Section 8.02(k).
“ Distributed Property
” shall have the meaning specified in
Section 8.04(c).
“ Effective Date ”
shall have the meaning specified in Section 8.03(a).
“ Ex-Dividend Date
” means, with respect to any issuance, dividend or
distribution in which the holders of Common Stock (or other
security) have the right to receive any cash, securities or other
property, the first date on which the shares of the Common Stock
(or other security) trade on the applicable exchange or in the
applicable market, regular way, without the right to receive the
issuance, dividend or distribution in question.
4
“ Fundamental Change
” means the occurrence after the original issuance of the
Notes of any of the following events:
(a) any “person” or
“group” (within the meaning of Section 13(d) of the
Exchange Act) other than the Company, its Subsidiaries or the
employee benefit plans of the Company or any such Subsidiary, files
a Schedule TO or any schedule, form or report under the
Exchange Act disclosing that such person or group has become the
direct or indirect ultimate “beneficial owner,” as
defined in Rule 13d-3 under the Exchange Act, of the
Company’s Common Equity representing more than 50% of the
voting power of the Company’s Common Equity;
(b) consummation of any share
exchange, exchange offer, tender offer, consolidation or merger of
the Company or similar transaction pursuant to which the Common
Stock will be converted into cash, securities or other property
(other than any transaction or event pursuant to which holders of
Common Stock immediately prior to such transaction or event have
the entitlement to exercise, directly or indirectly, 50% or more of
the total voting power of all shares of Capital Stock entitled to
vote generally in elections of directors of the continuing or
surviving or successor Person immediately after the consummation of
such transaction or event) or any sale, lease or other transfer 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 than one of the
Company’s Subsidiaries;
(c) Continuing Directors cease
to constitute at least a majority of the Board of Directors;
(d) the shareholders of the
Company approve any plan or proposal for the liquidation or
dissolution of the Company; or
(e) the Common Stock ceases to
be listed on a United States national or regional securities
exchange.
For
purposes of this definition, whether a “ person
” is a “ beneficial owner ” shall be
determined in accordance with Rule 13d-3 under the Exchange
Act and “ person ” includes any syndicate or
group that would be deemed to be a “ person ”
under Section 13(d)(3) of the Exchange Act.
Notwithstanding the foregoing, a
Fundamental Change shall not be deemed to have occurred if at least
90% of the consideration, excluding cash payments for fractional
shares, in the share exchange, exchange offer, tender offer,
consolidation, merger, binding share exchange, sale, lease or other
transfer consists of shares of Publicly Traded Securities, and as a
result of such share exchange, exchange offer, tender offer,
consolidation, merger, sale, lease or other transfer, the Notes
become convertible into such Publicly Traded Securities, excluding
cash payments for fractional shares (subject to the provisions of
Section 8.02(a)).
“ Fundamental Change Company
Notice ” shall have the meaning specified in
Section 9.02(b).
“ Fundamental Change
Expiration Time ” shall have the meaning specified in
Section 9.02(b)(ix).
5
“ Fundamental Change
Repurchase Date ” shall have the meaning specified in
Section 9.04(a).
“ Fundamental Change
Repurchase Notice ” shall have the meaning specified in
Section 9.02(a)(i).
“ Fundamental Change
Repurchase Price ” shall have the meaning specified in
Section 9.02(a).
“ Global Note ”
shall have the meaning specified in Section 2.05(b).
“ Incremental Share
Factor ” means initially 39.1102, subject to the same
proportional adjustment as the Base Conversion Rate as set forth
herein.
“ Indenture ”
means the Original Indenture, as amended and supplemented by this
First Supplemental Indenture and, if further amended or
supplemented as herein provided, as so amended or
supplemented.
“ interest ”
means, when used with reference to the Notes, any interest payable
under the terms of the Notes, including (unless context otherwise
requires) Defaulted Interest, if any, and Additional Interest, if
any.
“ Interest Payment Date
” means each May 1 and November 1 of each year, beginning on
May 1, 2008.
“ Interest Record Date
,” with respect to any Interest Payment Date, shall mean the
April 15 or October 15 (whether or not such day is a
Business Day) immediately preceding the applicable May 1 or
November 1 Interest Payment Date, respectively.
“ Last Reported Sale
Price ” of the Common Stock on any date means the closing
sale price per share (or if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either
case, the average of the average bid and the average ask prices) on
that date as reported in composite transactions for the principal
U.S. national or regional securities exchange on which the Common
Stock is listed for trading. If the Common Stock is not listed for
trading on a U.S. national or regional securities exchange on the
relevant date, then the “ Last Reported Sale Price
” will be the last quoted bid price for the Common Stock in
the over-the-counter market on the relevant date as reported by the
National Quotation Bureau or similar organization. If the Common
Stock is not so quoted, the “ Last Reported Sale Price
” will be the average of the mid-point of the last bid and
ask prices for the Common Stock on the relevant date from each of
at least three nationally recognized independent investment banking
firms selected by the Company for this purpose.
“ Make-Whole Conversion Rate
Adjustment ” shall have the meaning specified in
Section 8.03(a).
“ Make-Whole Fundamental
Change ” means any transaction or event that constitutes
a Fundamental Change as described in clause (a) or (b) of
the definition thereof (determined without regard to the
parenthetical “(other than any transaction or event pursuant
to which
6
holders
of Common Stock immediately prior to such transaction or event have
the entitlement to exercise, directly or indirectly, 50% or more of
the total voting power of all shares of Capital Stock entitled to
vote generally in elections of directors of the continuing or
surviving or successor Person immediately after the consummation of
such transaction or event)” in such clause (b)).
“ Maturity Date ”
means November 1, 2037.
“ Merger Event ”
shall have the meaning specified in Section 8.06.
“ Note ” or
“ Notes ” shall mean any note or notes, as the
case may be, authenticated and delivered under this First
Supplemental Indenture.
“ Noteholder ” or
“ holder ,” as applied to any Note, or other
similar terms (but excluding the term “beneficial
holder”), shall mean any person in whose name at the time a
particular Note is registered on the Note Register.
“ Note Register ”
shall have the meaning specified in Section 2.05(a).
“ Note Registrar ”
shall have the meaning specified in Section 2.05(a).
“ Notice of Conversion
” shall have the meaning specified in
Section 8.02(b).
“ Observation Period
” means, with respect to any Note surrendered for conversion,
the twenty consecutive Trading Day period beginning, on and
including, the second Trading Day after the Conversion Date for
such Note; provided that with respect to any Conversion Date
that is on or after the twenty-fourth Scheduled Trading Day
immediately preceding the Maturity Date, the “ Observation
Period ” shall mean the twenty consecutive Trading Days
beginning on, and including, the twenty-second Scheduled Trading
Day immediately preceding the Maturity Date.
“ open of business
” means 9:00 a.m. (New York City time).
“ Original Indenture
” means the indenture for Senior Debt Securities dated as of
November 2, 2007 by and between the Company and the
Trustee.
“ Paying Agent ”
shall have the meaning specified in Section 3.02.
“ Publicly Traded
Securities ” means shares of common stock or American
Depositary Receipts in respect of common stock that are traded on a
U.S. national securities exchange or that will be so traded when
issued or exchanged in connection with a Fundamental Change.
“ Record Date ”
shall have the meaning specified in Section 8.04(f).
“ Redemption Date
” shall have the meaning specified in
Section 10.01(a).
“ Redemption Price
” shall have the meaning specified in
Section 10.01(a).
“ Reference Property
” shall have the meaning specified in
Section 8.06(b).
7
“ Repurchase Date
” shall have the meaning specified in
Section 9.01(a).
“ Repurchase Notice
” shall have the meaning specified in
Section 9.01(c)(i).
“ Repurchase Price
” shall have the meaning specified in
Section 9.01(a).
“ Scheduled Trading Day
” means any day that is scheduled to be a Trading Day.
“ Securities Act ”
means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
“ Spin-Off ” shall
have the meaning specified in Section 8.04(c).
“ Stock Price ”
means (a) in the case of a Make-Whole Fundamental Change
constituting a share exchange, exchange offer, tender offer,
consolidation, merger or similar transaction described in clause
(b) of the definition of Fundamental Change in which holders
of Common Stock receive solely cash consideration in connection
with such Make-Whole Fundamental Change, the amount of cash paid
per share of the Common Stock and (b) in the case of all other
Make-Whole Fundamental Changes, the average of the Last Reported
Sale Prices per share of Common Stock over the period of five
consecutive Trading Days ending on the Trading Day immediately
preceding the Effective Date of such Make-Whole Fundamental Change.
The Board of Directors will make appropriate adjustments, in its
good faith determination, to account for any adjustment to the Base
Conversion Rate that becomes effective, or any event requiring an
adjustment to the Base Conversion Rate where the Ex-Dividend Date
of the event occurs, during such five consecutive Trading Day
period.
“ Successor Company
” shall have the meaning specified in
Section 7.01(a).
“ Tax Original Issue
Discount ” means the amount of ordinary interest income
on a Security that must be accrued as original issue discount for
U.S. federal income tax purposes pursuant to Treasury regulation
Section 1.1275-4 or any successor thereto.
“ Trading Day ”
means a day during which trading in the Common Stock generally
occurs on the principal U.S. national or regional securities
exchange on which the Common Stock is listed for trading;
provided that if the Common Stock is not listed for trading
on a U.S. national or regional securities exchange, “
Trading Day ” will mean a Business Day.
“ Trading Price ”
with respect to the Notes, on any date of determination means the
average of the secondary market bid quotations obtained by the Bid
Solicitation Agent for $5.0 million principal amount of Notes
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 if
three such bids cannot reasonably be obtained by the Bid
Solicitation Agent, but two such bids are obtained, then the
average of the two bids shall be used, and if only one such bid can
reasonably be obtained by the Bid Solicitation Agent, that one bid
shall be used. If the Bid Solicitation Agent cannot reasonably
obtain at least one bid for $5.0 million principal amount of
Notes from any such nationally recognized securities dealer or the
Company determines in its reasonable judgment that the bids are not
indicative of the secondary market value of the Notes, then the
Trading Price per $1,000 principal amount of Notes will
8
equal
(1) the Applicable Conversion Rate of the Notes as of such
determination date multiplied by (2) the average Last
Reported Sale Price of the Common Stock for the five consecutive
Trading Days ending on such determination date. Solely for purposes
of determining the Trading Price of the Notes as set forth in the
immediately preceding sentence, the “Applicable Conversion
Rate” on any day will be (a) if the Last Reported Sale
Price of the Common Stock on the Trading Day immediately preceding
such day is less than or equal to the Base Conversion Price, the
Base Conversion Rate and (b) if such Last Reported Sale Price
is greater than the Base Conversion Price, the Base Conversion Rate
plus a number of shares of Common Stock equal to the product of
(i) the Incremental Share Factor and (ii) (A) the
difference between such Last Reported Sale Price and the Base
Conversion Price divided by (B) such Last Reported Sale
Price.
“ Trigger Event ”
shall have the meaning specified in Section 8.04(c).
“ Trust Indenture Act
” means the Trust Indenture Act of 1939, as amended, as it
was in force at the date of execution of this First Supplemental
Indenture, except as provided in Section 8.06; provided
, however , that in the event the Trust Indenture Act of
1939 is amended after the date hereof, the term “ Trust
Indenture Act ” shall mean, to the extent required by
such amendment, the Trust Indenture Act of 1939, as so
amended.
“ Trustee ” means
the Person named as the “Trustee” in the first
paragraph of this First Supplemental Indenture until a successor
Trustee shall have become such pursuant to the applicable
provisions of this First Supplemental Indenture, and thereafter
“Trustee” shall mean or include each Person who is then
a Trustee hereunder.
“ Weighted Average
Consideration ” shall have the meaning specified in
Section 8.06(c)(iv).
ARTICLE 2
Issue, Description,
Execution, Registration
and Exchange of
Notes
Section 2.01 . Designation
and Amount . The Notes shall be designated as the “2.75%
Convertible Senior Notes due 2037.” The Notes that may be
authenticated and delivered under this First Supplemental Indenture
is initially limited to $180,000,000 subject to Section 2.07
and except for Notes authenticated and delivered upon registration
or transfer of, or in exchange for, or in lieu of other Notes
pursuant to Section 2.05, Section 8.02, Section 9.04,
Section 10.02 hereof and Section 2.07 of the Original
Indenture
9
Section 2.02 . Form of
Notes . The Notes and the Trustee’s certificate of
authentication to be borne by such Notes shall be substantially in
the respective forms set forth in Exhibit A, which are
incorporated in and made a part of this First Supplemental
Indenture.
Any of the Notes may have such
letters, numbers or other marks of identification and such
notations, legends or 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 First Supplemental Indenture, or as may be required to comply
with any law or with any rule or regulation made pursuant thereto
or with any rule or regulation of any securities exchange or
automated quotation system on which the Notes may be listed or
designated for issuance, or to conform to usage or to indicate any
special limitations or restrictions to which any particular Notes
are subject.
The Global Note shall represent such
principal amount of the Outstanding Notes as shall be specified
therein and shall provide that it shall represent the aggregate
principal amount of Outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of Outstanding
Notes represented thereby may from time to time be increased or
reduced to reflect repurchases, conversions, transfers or exchanges
permitted hereby. Any endorsement of the Global Note to reflect the
amount of any increase or decrease in the amount of Outstanding
Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in such manner and upon
instructions given by the holder of such Notes in accordance with
this First Supplemental Indenture. Payment of principal, accrued
and unpaid interest, and Additional Interest, if any, and premium,
if any (including any Fundamental Change Repurchase Price,
Repurchase Price or Redemption Price), on the Global Note shall be
made to the holder of such Note on the date of payment, unless a
record date or other means of determining holders eligible to
receive payment is provided for herein.
The terms and provisions contained in
the form of Note attached as Exhibit A hereto shall
constitute, and are hereby expressly made, a part of this First
Supplemental Indenture and, to the extent applicable, the Company
and the Trustee, by their execution and delivery of this First
Supplemental Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Section 2.03 . Date and
Denomination of Notes; Payments of Interest . The Notes shall
be issuable in registered form without coupons in denominations of
$1,000 principal amount and integral multiples thereof. Each Note
shall be dated the date of its authentication and shall bear
interest from the date specified on the face of the form of Note
attached as Exhibit A hereto. Interest on the Notes shall be
computed on the basis of a 360-day year comprised of twelve 30-day
months.
The Person in whose name any Note (or
its Predecessor Security) is registered on the Note Register at the
close of business on any Interest Record Date with respect to any
Interest Payment Date shall be entitled to receive the interest
payable on such Interest Payment Date. Interest (including
Additional Interest, if any) shall be payable at the office or
agency of the Company maintained by the Company for such purposes
in the United States, which shall initially be the office of the
Paying Agent at Corporate Trust Services, MAC N9303-121, Corporate
Trust Services, North Star East – 12th floor, 608 - 2nd
Avenue South, Minneapolis, MN 55479. The Company shall pay interest
(including Additional Interest, if any) (a) on any Notes in
certificated form by check mailed to the address
10
of the
Person entitled thereto as it appears in the Note Register (or upon
written application by such Person to the Trustee and Paying Agent
(if different from the Trustee) not later than the relevant
Interest Record Date, by wire transfer in immediately available
funds to such Person’s account within the United States, if
such Person is entitled to interest on an aggregate principal in
excess of $1,000,000, which application shall remain in effect
until the Noteholder notifies the Trustee and Paying Agent to the
contrary) or (b) on any Global Note by wire transfer of
immediately available funds to the account of the Depositary or its
nominee.
Section 2.04 . Payments of
Additional Interest . If required by Section 4.02, each
Note shall pay Additional Interest in the manner set forth herein.
Whenever in this First Supplemental Indenture there is mentioned,
in any context, the payment of the principal of, premium, if any,
or interest on, or in respect of, any Note, such mention shall be
deemed to include mention of the payment of “Additional
Interest” provided for in Section 4.02 to the extent
that, in such context, Additional Interest is, was or would be
payable in respect thereof and express mention of the payment of
Additional Interest (if applicable) in any provisions hereof shall
not be construed as excluding Additional Interest in those
provisions hereof where such express mention is not made.
Section 2.05 . Exchange and
Registration of Transfer of Notes; Depositary .
(a) The Company shall cause to
be kept at the Corporate Trust Office a register (the register
maintained in such office or in any other office or agency of the
Company designated pursuant to Section 3.02 being herein
sometimes collectively referred to as the “ Note
Register ”, which Note Register shall constitute a
Security Register (as such term is defined in the Original
Indenture)) in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of
Notes and of transfers of Notes. Such register shall be in written
form or in any form capable of being converted into written form
within a reasonable period of time. The Trustee is hereby appointed
“ Note Registrar ” and Security Registrar (as
such term is defined in the Original Indenture) for the purpose of
registering Notes and transfers of Notes as herein provided. The
Company may appoint one or more co-registrars in accordance with
Section 3.02.
Notes may be exchanged for other
Notes of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at
any such office or agency maintained by the Company pursuant to
Section 3.02. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Notes that the Noteholder making the
exchange is entitled to receive, bearing registration numbers not
contemporaneously outstanding.
None of the Company, the Trustee, the
Note Registrar or any co-registrar shall be required to exchange or
register a transfer of (i) any Notes surrendered for
conversion or, if a portion of any Note is surrendered for
conversion, such portion thereof surrendered for conversion or
(ii) any Notes, or a portion of any Note, surrendered for
repurchase (and not withdrawn) in accordance with Article 9
hereof.
All Notes issued upon any
registration of transfer or exchange of Notes in accordance with
this First Supplemental Indenture shall be the valid obligations of
the Company, evidencing
11
the same
debt, and entitled to the same benefits under this First
Supplemental Indenture as the Notes surrendered upon such
registration of transfer or exchange.
(b) So long as the Notes are
eligible for book-entry settlement with the Depositary, unless
otherwise required by law, all Notes shall be represented by one or
more Notes in global form (each, a “ Global Note
”) registered in the name of the Depositary or the nominee of
the Depositary. The transfer and exchange of beneficial interests
in a Global Note that does not involve the issuance of a definitive
Note, shall be effected through the Depositary (but not the Trustee
or the Custodian) in accordance with this First Supplemental
Indenture and the procedures of the Depositary therefor.
Notwithstanding any other provisions
of the Indenture (other than the provisions set forth in this
Section 2.05(b)), a Global Note may not be transferred as a
whole or in part except (i) by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such
successor Depositary and (ii) for transfers of portions of a
Global Note in certificated form made upon request of a member of,
or a participant in, the Depositary (for itself or on behalf of a
beneficial owner) by written notice given to the Trustee by or on
behalf of the Depositary in accordance with customary procedures of
the Depositary and in compliance with this Section.
The Depositary shall be a clearing
agency registered under the Exchange Act. The Company initially
appoints The Depository Trust Company to act as Depositary with
respect to the Global Note. Initially, the Global Note shall be
issued to the Depositary, registered in the name of Cede & Co.,
as the nominee of the Depositary, and deposited with the Trustee as
Custodian for the Depositary.
If (i) the Depositary notifies
the Company at any time that the Depositary is unwilling or unable
to continue as depositary for the Global Notes and a successor
depositary is not appointed within 90 calendar days,
(ii) the Depositary ceases to be registered as a clearing
agency under the Exchange Act and a successor depositary is not
appointed within 90 calendar days or (iii) an Event of
Default in respect of the Notes has occurred and is continuing, and
any Noteholder has requested that the Notes be issued in definitive
form in exchange for a Global Note, the Company will execute, and
the Trustee, upon receipt of an Officers’ Certificate and a
Company Order for the authentication and delivery of Notes, will
authenticate and deliver Notes in definitive form to each person
that the Depositary identifies as a beneficial owner of the related
Notes (or a portion thereof) in an aggregate principal amount equal
to the principal amount of such Global Note, in exchange for such
Global Note, and upon delivery of the Global Note to the Trustee
such Global Note shall be canceled.
Definitive Notes issued in exchange
for all or a part of the Global Note pursuant to this
Section 2.05(b) shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. Upon execution and authentication, the
Trustee shall deliver such definitive Notes to the Persons in whose
names such definitive Notes are so registered.
12
At such time as all interests in a
Global Note have been converted, canceled, redeemed, repurchased or
transferred, such Global Note shall be, upon receipt thereof,
canceled by the Trustee in accordance with standing procedures and
instructions existing between the Depositary and the Custodian. At
any time prior to such cancellation, if any interest in a Global
Note is exchanged for definitive Notes, converted, canceled,
repurchased or transferred to a transferee who receives definitive
Notes therefor or any definitive Note is exchanged or transferred
for part of such Global Note, the principal amount of such Global
Note shall, in accordance with the standing procedures and
instructions existing between the Depositary and the Custodian, be
appropriately reduced or increased, as the case may be, and an
endorsement shall be made on such Global Note, by the Trustee or
the Custodian, at the direction of the Trustee, to reflect such
reduction or increase.
None of the Company, the Trustee, nor
any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of
a Global Note or maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
Section 2.06 . CUSIP
Numbers . The Company in issuing the Notes may use
“CUSIP” numbers (if then generally in use), and, if so,
the Trustee shall use “CUSIP” numbers in all notices
issued to Noteholders as a convenience to holders of the Notes;
provided , that any such notice may state that no
representation is made as to the correctness of such numbers either
as printed on the Notes or on such notice and that reliance may be
placed only on the other identification numbers printed on the
Notes. The Company will promptly notify the Trustee in writing of
any change in the “CUSIP” numbers.
Section 2.07 . Additional
Notes; Repurchases . The Company may, without the consent of
the Noteholders and notwithstanding Section 2.01, reopen this
First Supplemental Indenture and issue additional Notes hereunder
with the same terms and with the same CUSIP number as the Notes
initially issued hereunder in an unlimited aggregate principal
amount, which will form the same series with the Notes initially
issued hereunder; provided that no such additional Notes may
be issued unless the additional Notes will be part of the same
issue as the Notes initially issued hereunder for U.S. federal
income tax purposes. Prior to the issuance of any such additional
Notes, the Company shall deliver to the Trustee a Company Order, an
Officers’ Certificate and an Opinion of Counsel, such
Officers’ Certificate and Opinion of Counsel to cover such
matters, in addition to those required by Section 13.07 of the
Original Indenture, as the Trustee shall reasonably request. The
Company may also from time to time repurchase the Notes in open
market purchases or negotiated transactions without prior notice to
Noteholders.
Section 2.08 . Contingent
Debt Tax Treatment .
(a) The Company and each
Noteholder, by acquiring a beneficial interest in a Note, agree (i)
to treat the Note as indebtedness for U.S. federal income tax
purposes that is subject to Treasury regulation Section 1.1275-4 or
any successor thereto (the “ Contingent Debt
Regulations ”), (ii) that each Noteholder shall be
bound by the Company’s application of the Contingent Debt
Regulations to the Note, including the Company’s
determination of the “comparable yield” and
“projected payment schedule” within the meaning of the
Contingent Debt Regulations, (iii) to treat the cash and the
fair market value of any Common Stock received
13
upon the
conversion of the Note as a contingent payment for purposes of the
Contingent Debt Regulations, (iv) to accrue interest with
respect to the outstanding Note as Tax Original Issue Discount
according to the “noncontingent bond method” set forth
in the Contingent Debt Regulations, using the comparable yield of
9.73% compounded semi-annually and (v) that the Company and
each Noteholder will not take any position on any U.S. federal
income tax return that is inconsistent with (i), (ii),
(iii) or (iv) unless required by applicable law. A
Noteholder may obtain the issue price, the amount of Tax Original
Issue Discount, issue date, yield to maturity, comparable yield and
projected payment schedule for the Notes, as determined by the
Company pursuant to the Contingent Debt Regulations, by submitting
a written request to the Company at the following address: Champion
Enterprises, Inc., 2701 Cambridge Court, Suite 300, Auburn
Hills, MI 48326, Attention: Investor Relations.
(b) Each Note shall bear a
legend relating to U.S. federal income tax matters in the form set
forth in Exhibit A.
Section 2.09 . Calculation of
Tax Original Issue Discount . The Company shall file with the
Trustee promptly at the end of each calendar year (i) a
written notice specifying the amount of Tax Original Issue Discount
(including daily rates and accrual periods) accrued on outstanding
Notes as of the end of such year and (ii) such other specific
information relating to such Tax Original Issue Discount as may
then be required under the Code or the Treasury regulations
promulgated thereunder.
ARTICLE 3
Particular Covenants of the
Company
Section 3.01 . Payment of
Principal, Premium, Interest and Additional Interest . The
Company covenants and agrees that it will cause to be paid the
principal of and premium, if any (including the Fundamental Change
Repurchase Price, the Repurchase Price and Redemption Price), and
accrued and unpaid interest and Additional Interest, if any, on
each of the Notes at the places, at the respective times and in the
manner provided herein and in the Notes. Each installment of
interest, and Additional Interest, if any, on the Notes, may be
paid by mailing checks for the amount payable to Noteholders
entitled thereto as they shall appear on the registry books of the
Company; provided that, with respect to any Noteholder with
an aggregate principal amount in excess of $1,000,000, at the
application of such holder in writing to the Trustee and Paying
Agent (if different from the Trustee) not later than the relevant
Interest Record Date, interest and Additional Interest, if any, on
such holder’s Notes shall be paid by wire transfer in
immediately available funds to such holder’s account in the
United States, which application shall remain in effect until the
Noteholder notifies the Trustee and Paying Agent to the contrary;
provided further that payment of interest and Additional
Interest, if any, made to the Depositary shall be paid by wire
transfer in immediately available funds in accordance with such
wire transfer instructions and other procedures provided by the
Depositary from time to time.
Section 3.02 . Maintenance of
Office or Agency . The Company will maintain in the United
States, an office or agency where the Notes may be surrendered for
registration of transfer or exchange or for presentation for
payment, repurchase or redemption (“ Paying Agent
”) or for conversion (“ Conversion Agent
”) and where notices and demands to or upon the
14
Company
in respect of the Notes and the Indenture may be served. The
Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office or the
office or agency of the Trustee.
The Company may also from time to
time designate co-registrars one or more other offices or agencies
where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office
or agency in the United States, for such purposes. The Company will
give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other
office or agency. The terms “Paying Agent” and
“Conversion Agent” include any such additional or other
offices or agencies, as applicable.
The Company hereby initially
designates the Trustee as the Paying Agent, Note Registrar,
Custodian, Bid Solicitation Agent and Conversion Agent and the
Corporate Trust Office and the office or agency of the Trustee each
shall be considered as one such office or agency of the Company for
each of the aforesaid purposes.
Section 3.03 . Existence
. Subject to Article 7, the Company will do or cause to be
done all things necessary to preserve and keep in full force and
effect its corporate existence.
Section 3.04 . Stay,
Extension and Usury Laws . The Company covenants (to the extent
that it may lawfully do so) that it shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay, extension or usury law or other law that
would prohibit or forgive the Company from paying all or any
portion of the principal of or interest on the Notes as
contemplated herein, wherever enacted, now or at any time hereafter
in force, or that may affect the covenants or the performance of
the Indenture; and the Company (to the extent it may lawfully do
so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 3.05 . Compliance
Certificate; Statements as to Defaults . The Company shall
deliver to the Trustee within 120 calendar days after the end
of each fiscal year of the Company (beginning with the fiscal year
ending on December 31, 2007) an Officers’ Certificate
stating whether or not each signer thereof has knowledge of any
failure by the Company to comply with all conditions and covenants
then required to be performed under the Indenture and, if so,
specifying each such failure and the nature thereof.
In addition, the Company shall
deliver to the Trustee, as soon as possible and in any event within
thirty 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 that the Company proposes to
take with respect thereto.
15
Section 3.06 . Additional
Interest . If Additional Interest is payable by the Company,
the Company shall deliver to the Trustee an Officers’
Certificate to that effect stating (a) the amount of such
Additional Interest that is payable and (b) the date on which
such interest is payable. Unless and until a Responsible Officer of
the Trustee receives at the Corporate Trust Office such a
certificate, the Trustee may assume without inquiry that no such
Additional Interest is payable.
Section 3.07 . Further
Instruments and Acts . Upon request of the Trustee, the Company
will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out
more effectively the purposes of this First Supplemental
Indenture.
Section 3.08 . Reporting
Obligations. (a) The Company shall deliver to the Trustee
(unless such reports have been filed within the time period set
forth below on the Commission’s Electronic Data Gathering,
Analysis and Retrieval system), within 15 calendar days after the
Company would have been required to file with the Commission,
copies of its annual reports and of information, documents and
other reports (or copies of such portions of any of the foregoing
as the Commission may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act.
(b) In the event and for as long
as the Company is not subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, it shall continue to
provide the Trustee with reports containing substantially the same
information as would have been required to be filed with the
Commission had the Company continued to have been subject to such
reporting requirements and also mail such documents to each
Noteholder at such Noteholder’s registered address, upon the
request of any Noteholder or beneficial holder of the Notes or the
Common Stock issued upon conversion thereof. In such event, such
reports shall be provided within 15 calendar days after the
dates, applicable to a registrant that is not an accelerated filer
or a large accelerated filer, on which the Company would have been
required to provide reports had it continued to have been subject
to Section 13 or 15(d) of the Exchange Act.
(c) The Company also shall
comply with the other provisions of Section 314(a) of the Trust
Indenture Act.
ARTICLE 4
Defaults and
Remedies
Section 4.01 . Additional
Events of Default . In addition to those Events of Default set
forth in Section 6.01 of the Original Indenture, the following
events shall also be Events of Default with respect to the
Notes:
(a) failure by the Company to
comply with its obligations under Article 7;
(b) failure by the Company to
issue a Fundamental Change Company Notice when such notice becomes
due in accordance with Section 9.02(b);
16
(c) failure by the Company to
comply with its obligations to repurchase the Notes as required
under Article 9;
(d) failure by the Company to
comply with its obligations to redeem the Notes under
Article 10 after the Company exercises its option to redeem
the Notes;
(e) default by the Company or
any Subsidiary of the Company in the payment of the principal or
interest on any mortgage, agreement or other instrument under which
there may be outstanding, or by which there may be secured or
evidenced, any debt for money borrowed in excess of
$40 million in the aggregate of the Company and/or any of its
Subsidiaries, whether such debt now exists or shall hereafter be
created, resulting in such debt becoming or being declared due and
payable, and such acceleration shall not have been rescinded or
annulled within thirty calendar days after written notice of such
acceleration has been received by the Company or such
Subsidiary;
(f) a final judgment for the
payment of $40 million or more rendered against the Company or
any of its Subsidiaries, and such amount is not covered by
insurance or indemnity or not discharged or stayed within sixty
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;
(g) the Company or any
Subsidiary of the Company that is a “significant
subsidiary” (as defined in Regulation S-X under the
Exchange Act) or any group of Subsidiaries of the Company that in
the aggregate would constitute a “significant
subsidiary” shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with
respect to the Company or any such Subsidiary or group of
Subsidiaries or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar
official of the Company or any such Subsidiary or group of
Subsidiaries or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment
for the benefit of creditors, or shall fail generally to pay its
debts as they become due; or
(h) an involuntary case or other
proceeding shall be commenced against the Company or any Subsidiary
of the Company that is a “significant subsidiary” (as
defined in Regulation S-X under the Exchange Act) or any group
of Subsidiaries of the Company that in the aggregate would
constitute a “significant subsidiary” seeking
liquidation, reorganization or other relief with respect to the
Company or such Subsidiary or group of Subsidiaries or its debts
under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of the
Company or such Subsidiary or group of Subsidiaries or any
substantial part of its property, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period
of ninety consecutive days.
Section 4.02 . Sole Remedy
for Failure to Report . Notwithstanding any other provision of
the Indenture, the sole remedy for an Event of Default relating to
the failure to comply with the reporting obligations under
Section 3.08 of this First Supplemental Indenture, or any
failure
17
to
comply with the requirements of Section 314(a)(1) of the Trust
Indenture Act, will for the 120 calendar days after the
occurrence of such an Event of Default consist exclusively of the
right to receive additional interest on the principal amount of the
Notes at a rate equal to 0.25% per annum (the “ Additional
Interest ”). This Additional Interest will be payable in
the same manner and subject to the same terms as other interest
payable under this First Supplemental Indenture. The Additional
Interest will accrue on all Outstanding Notes from, and including,
the date on which an Event of Default relating to a failure to
comply with Section 3.08 or Section 314(a)(1) of the
Trust Indenture Act first occurs to, but not including, the 120th
calendar day thereafter (or such earlier date on which the Event of
Default relating to the reporting obligations under
Section 3.08 or Section 314(a)(1) of the Trust Indenture Act
shall have been cured or waived). On such 120th calendar day (or
earlier, if the Event of Default relating to such reporting
obligations is cured or waived prior to such 120th calendar day),
such Additional Interest will cease to accrue and, unless such
Event of Default has been cured or waived, the Notes will be
subject to acceleration as provided in the Indenture. For the
avoidance of doubt, the provisions of this Section 4.02 will
not affect the rights of Noteholders in the event of the occurrence
of any other Event of Default.
In order to elect to pay the
Additional Interest as the sole remedy during the first
120 calendar days after the occurrence of an Event of Default
relating to the failure to comply with Section 3.08 or the
requirements of Section 314(a)(1) of the Trust Indenture Act,
the Company must notify all Noteholders and the Trustee and Paying
Agent in writing of such election on or before the close of
business on the date on which such Event of Default occurs, which
will be the 60th calendar day after receipt by the Company of
notice of its failure to so comply.
ARTICLE 5
Noteholders’
Meetings
Section 5.01 . Purpose of
Meetings . A meeting of Noteholders may be called at any time
and from time to time pursuant to the provisions of this
Article 5 for any of the following purposes:
(a) to give any notice to the
Company or to the Trustee or to give any directions to the Trustee
permitted under this First Supplemental Indenture, or to consent to
the waiving of any Default or Event of Default hereunder and its
consequences, or to take any other action authorized to be taken by
Noteholders pursuant to any of the provisions of Article 4 of
this First Supplemental Indenture and Article 6 of the
Original Indenture;
(b) to remove the Trustee and
nominate a successor trustee pursuant to the provisions of
Article 7 of the Original Indenture;
(c) to consent to the execution
of an indenture or indentures supplemental hereto pursuant to the
provisions of Section 6.02 of this First Supplemental
Indenture and Section 9.02 of the Original Indenture; or
(d) to take any other action
authorized to be taken by or on behalf of the holders of any
specified aggregate principal amount of the Notes under any other
provision of this First Supplemental Indenture or under applicable
law.
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Section 5.02 . Call of
Meetings by Trustee . The Trustee may at any time call a
meeting of Noteholders to take any action specified in
Section 5.01, to be held at such time and at such place as the
Trustee shall determine. Notice of every meeting of the
Noteholders, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such
meeting and the establishment of any record date pursuant to
Section 8.01 of the Original Indenture, shall be mailed to
holders of such Notes at their addresses as they shall appear on
the Note Register. Such notice shall also be mailed to the Company.
Such notices shall be mailed not less than twenty nor more than
ninety calendar days prior to the date fixed for the meeting.
Any meeting of Noteholders shall be
valid without notice if the holders of all Notes then Outstanding
are present in person or by proxy or if notice is waived before or
after the meeting by the holders of all Notes Outstanding, and if
the Company and the Trustee are either present by duly authorized
representatives or have, before or after the meeting, waived
notice.
Section 5.03 . Call of
Meetings by Company or Noteholders . In case at any time the
Company, pursuant to a Board Resolution, or the holders of at least
10% in aggregate principal amount of the Notes then Outstanding,
shall have requested the Trustee to call a meeting of Noteholders,
by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within twenty calendar days after
receipt of such request, then the Company or such Noteholders may
determine the time and the place for such meeting and may call such
meeting to take any action authorized in Section 5.01, by
mailing notice thereof as provided in Section 5.02.
Section 5.04 . Qualifications
for Voting . To be entitled to vote at any meeting of
Noteholders a Person shall (a) be a holder of one or more
Notes on the record date pertaining to such meeting or (b) be
a Person appointed by an instrument in writing as proxy by a holder
of one or more Notes on the record date pertaining to such meeting.
The only Persons who shall be entitled to be present or to speak at
any meeting of Noteholders shall be the Persons entitled to vote at
such meeting and their counsel and any representatives of the
Trustee and its counsel and any representatives of the Company and
its counsel.
Section 5.05 .
Regulations . Notwithstanding any other provisions of this
First Supplemental Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of
Noteholders, in regard to proof of the holding of Notes and of the
appointment of proxies, and in regard to the appointment and duties
of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall
think fit.
The Trustee shall, by an instrument
in writing, appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Company or by Noteholders as
provided in Section 5.03, in which case the Company or the
Noteholders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the
holders of a majority in principal amount of the Notes represented
at the meeting and entitled to vote at the meeting.
Subject to the provisions of
Section 8.04 of the Original Indenture, at any meeting of
Noteholders each Noteholder or proxyholder shall be entitled to one
vote for each $1,000
19
principal amount of Notes held or represented by him;
provided , however , that no vote shall be cast or
counted at any meeting in respect of any Note challenged as not
Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to
vote other than by virtue of Notes held by it or instruments in
writing as aforesaid duly designating it as the proxy to vote on
behalf of other Noteholders. Any meeting of Noteholders duly called
pursuant to the provisions of Section 5.02 or
Section 5.03 may be adjourned from time to time by the holders
of a majority of the aggregate principal amount of Notes
represented at the meeting, whether or not constituting a quorum,
and the meeting may be held as so adjourned without further
notice.
Section 5.06 . Voting .
The vote upon any resolution submitted to any meeting of
Noteholders shall be by written ballot on which shall be subscribed
the signatures of the Noteholders or of their representatives by
proxy and the Outstanding principal amount of the Notes held or
represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and
file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record in
duplicate of the proceedings of each meeting of Noteholders shall
be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or
more Persons having knowledge of the facts setting forth a copy of
the notice of the meeting and showing that said notice was mailed
as provided in Section 5.02. The record shall show the
principal amount of the Notes voting in favor of or against any
resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting
and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to
have attached thereto the ballots voted at the meeting.
Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
Section 5.07 . No Delay of
Rights by Meeting . Nothing contained in this Article 5
shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Noteholders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Noteholders under any of the
provisions of this First Supplemental Indenture or of the
Notes.
ARTICLE 6
Modifications and
amendments
Section 6.01 . Modifications
and Amendments Without Consent of Noteholders . In addition to
the matters described in the proviso to Section 9.01 of the
Original Indenture, the Company and the Trustee may from time to
time and at any time enter into an indenture, supplemental
indenture or amendment to this First Supplemental Indenture (which
shall conform to the provisions of the Trust Indenture Act as then
in effect), without the consent of the Noteholders, for one or more
of the following purposes:
20
(a) to provide for the
assumption by a Successor Company of the obligations of the Company
under this Indenture pursuant to Article 7; and
(b) to make provisions with
respect to the conversion of the Notes as required by Section
8.06.
Upon the written request of the
Company, accompanied by a Board Resolution authorizing the
execution of such indenture, supplemental indenture or amendment,
the Trustee is hereby authorized to join with the Company in the
execution of any such indenture, supplemental indenture or
amendment, to make any further appropriate agreements and
stipulations that may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but
the Trustee shall not be obligated to, but may in its discretion,
enter into any indenture, supplemental indenture or amendment that
affects the Trustee’s own rights, duties or immunities under
the Indenture or otherwise.
Any indenture, supplemental indenture
or amendment to this First Supplemental Indenture authorized by the
provisions of this Section 6.01 may be executed by the Company
and the Trustee without the consent of the holders of any of the
Notes at the time outstanding, notwithstanding any of the
provisions of Section 6.02 or Section 9.02 of the
Original Indenture.
Section 6.02 . Modifications
and Amendments With Consent of Noteholders . With the consent
(evidenced as provided in Section 8.01 of the Original
Indenture) of the holders of at least a majority in aggregate
principal amount of the Notes at the time Outstanding (determined
in accordance with Article 8 of the Original Indenture and
including, without limitation, consents obtained in connection with
a purchase of, or tender offer or exchange offer for, Notes), the
Company, when authorized by a Board Resolution and the Trustee, at
the Company’s expense, may from time to time enter into an
indenture, supplemental indenture or amendment to this First
Supplemental Indenture or the Notes for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this First Supplemental Indenture or any supplemental
indenture or of modifying in any manner the rights of the holders
of the Notes; provided , however, that in addition to
the matters described in the proviso to Section 9.02 of the
Original Indenture, with respect to the Notes, no such amendment
shall, without the consent of each Noteholder affected
hereby:
(a) make any change that impairs
or adversely affects the conversion rights of any Notes;
(b) modify the redemption or
repurchase provisions contained in Article 9 and
Article 10, respectively, in a manner adverse to the
Noteholders;
(c) reduce any amount payable
upon redemption or repurchase of any Note (including the
Fundamental Repurchase Price, the Repurchase Price and the
Redemption Price) or change the time at which or circumstances
under which the Notes may or shall be redeemed or repurchased;
or
(d) reduce the Fundamental
Change Repurchase Price, Repurchase Price or Redemption Price of
any Note or amend or modify in any manner adverse to the holders of
the Notes the Company’s obligation to make such payments,
whether through an amendment or waiver of provisions in the
covenants, definitions or otherwise.
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It shall not be necessary for the
consent of the Noteholders under this Section 6.02 to approve
the particular form of any proposed indenture, supplemental
indenture or amendment to this First Supplemental Indenture, but it
shall be sufficient if such consent shall approve the substance
thereof. After an indenture, supplemental indenture or amendment
under this First Supplemental Indenture becomes effective, the
Company shall send to the holders a notice briefly describing such
indenture, supplemental indenture or amendment, as applicable.
However, the failure to give such notice to all the holders, or any
defect in the notice, will not impair or affect the validity of
such indenture, supplemental indenture or amendment.
ARTICLE 7
Consolidation, Merger, Sale,
Conveyance and Lease
Section 7.01 . Company May
Consolidate, Etc. on Certain Terms .
Subject to the provisions of
Section 7.02, the Company shall not consolidate with, merge
with or into, or convey, transfer or lease its properties and
assets substantially as an entirety to another Person,
unless:
(a) the resulting, surviving or
transferee Person (the “ Successor Company ”) if
not the Company shall be a corporation organized and existing under
the laws of the United States of America, any State thereof or the
District of Columbia, and the Successor Company (if not the
Company) shall expressly assume, by supplemental indenture,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company under the Notes, and
the Indenture; and
(b) immediately after giving
effect to such transaction, no Default shall have occurred and be
continuing under the Indenture.
Upon any such consolidation, merger,
conveyance, transfer or lease the resulting, surviving or
transferee (by conveyance, lease or otherwise) Person (if not the
Company) shall succeed to, and may exercise every right and power
of, the Company under the Indenture.
For purposes of this
Section 7.01, the conveyance, transfer or lease of the
properties and assets of one or more Subsidiaries of the Company
substantially as an entirety to another Person, which properties
and assets, if held by the Company instead of such Subsidiaries,
would constitute the properties and assets of the Company
substantially as an entirety on a consolidated basis, shall be
deemed to be the transfer of the properties and assets of the
Company substantially as an entirety to another Person.
Section 7.02 . Successor
Corporation to Be Substituted . In case of any such
consolidation, merger, conveyance, transfer or lease and upon the
assumption by the Successor Company, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to
the Trustee, of the due and punctual payment of the principal of
and premium, if any, accrued and unpaid interest and accrued and
unpaid Additional Interest, if any, on all of the Notes, the due
and punctual delivery or payment, as the case may be, of any
consideration due upon conversion of the Notes and the due and
punctual performance of all of the covenants and conditions of the
Indenture to be performed by the Company, such Successor Company
shall succeed to and be substituted for the Company, with the same
effect as if it had been named
22
herein
as the party of the first part. Such Successor Company thereupon
may cause to be signed, and may issue either in its own name or in
the name of the Company
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