Exhibit 4.1
FORM OF
SECOND SUPPLEMENTAL INDENTURE
by and among
GLOBALSTAR, INC.
AS ISSUER,
AND
U.S. BANK, NATIONAL ASSOCIATION
AS TRUSTEE
8.00% Convertible Senior Unsecured
Notes
Dated as of June [ · ], 2009
Supplemental To Indenture For Senior Debt
Securities
Dated as of April 15, 2008
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY
REFERENCE
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2
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Section 1.01. Scope of Second
Supplemental Indenture
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2
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Section 1.02.
Definitions
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2
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Section 1.03. Other
Definitions
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8
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Section 1.04. Rules of
Construction
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8
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ARTICLE 2 THE SECURITIES
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8
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Section 2.01. Title; Amount and
Issue of Securities; Principal and Interest
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8
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Section 2.02. Form of
Securities
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9
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Section 2.03.
Legends
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10
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Section 2.04. Registrar and
Paying Agent
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10
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Section 2.05. General
Provisions Relating to Transfer and Exchange
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11
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Section 2.06. Book-Entry
Provisions for the Global Securities
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11
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ARTICLE 3 COVENANTS
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12
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Section 3.01. Payment of
Securities
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12
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Section 3.02. Further
Instruments and Acts
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13
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Section 3.03. Statement by
Officer as to Default
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13
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Section 3.04. Special
Interest
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13
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Section 3.05. Reports by
Company
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13
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Section 3.06. Shareholder
Approval
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14
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Section 3.07. Usury
Laws
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14
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ARTICLE 4 REDEMPTION OF SECURITIES
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14
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Section 4.01. Mandatory
Redemption
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14
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Section 4.02. Notice of
Redemption
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15
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ARTICLE 5 DEFAULTS AND REMEDIES
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15
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Section 5.01. Additional Events
of Default
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15
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Section 5.02. Sole Remedy for
Failure to Report
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16
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ARTICLE 6 DISCHARGE OF INDENTURE
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17
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Section 6.01. Discharge of
Liability on Securities
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17
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Section 6.02.
Reinstatement
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18
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Section 6.03. Officer’s
Certificate; Opinion of Counsel
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18
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ARTICLE 7 AMENDMENTS
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18
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Section 7.01. With Consent of
Holders
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18
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Section 7.02. Without Consent
of Holders
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19
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ARTICLE 8 PURCHASE AT THE OPTION OF HOLDERS UPON
A FUNDAMENTAL CHANGE
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20
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Section 8.01. Purchase at the
Option of the Holders Upon a Fundamental Change
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20
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Section 8.02. Further
Conditions and Procedures for Purchase at the Option of the Holder
Upon a Fundamental Change
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22
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Section 8.03. Purchase of
Securities in Open Market
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24
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ARTICLE 9 CONVERSION
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24
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Section 9.01. Conversion of
Securities
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24
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Section 9.02. Conversion
Procedures
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25
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Section 9.03. Settlement Upon
Conversion
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25
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Section 9.04. Adjustments to
Base Conversion Rate
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26
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Section 9.05. Make-Whole
Adjustment to Common Stock Delivered Upon Conversion
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33
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Section 9.06. Fractional
Shares
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34
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Section 9.07. Notice of
Adjustment
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34
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i
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Section 9.08. Notice of Certain
Transactions
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34
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Section 9.09. Effect of
Recapitalizations, Reclassifications, and Changes of Common
Stock
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34
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Section 9.10. Responsibility of
Trustee
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36
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Section 9.11. Stockholder
Rights Plan
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36
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Section 9.12. Taxes on
Conversion
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36
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Section 9.13. Certain Covenants
of the Company
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37
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Section 9.14. Automatic
Conversion
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37
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Section 9.15. Limitation on
Conversion Prior to Shareholder Approval
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39
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ARTICLE 10 MISCELLANEOUS
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39
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Section 10.01. No
Defeasance
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39
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Section 10.02. Notices, Etc.,
to Trustee and Company
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39
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Section 10.03. Communication by
Holders with other Holders
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40
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Section 10.04. Rules by
Trustee, Paying Agent and Registrar
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40
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Section 10.05. Legal
Holidays
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40
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Section 10.06. Governing
Law
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40
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Section 10.07. Incorporators,
Shareholders, Officers and Directors of the Company Exempt from
Individual Liability
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40
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Section 10.08. Successors and
Assigns
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41
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Section 10.09. Multiple
Originals
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41
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Section 10.10. Conflict with
Trust Indenture Act
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41
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Section 10.11. Effect of
Headings and Table of Contents
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41
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Section 10.12. Separability
Clause
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41
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Section 10.13. Benefits of the
Second Supplemental Indenture
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41
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Section 10.14.
Calculations
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41
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Section 10.15. Ratification and
Incorporation of Original Indenture
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41
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ARTICLE 11 SUBORDINATION OF
SECURITIES
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42
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Section 11.01. Securities
Subordinated to Senior Debt
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42
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Section 11.02. No Payment on
Securities in Certain Circumstances
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42
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Section 11.03. Payment over of
Proceeds upon Dissolution, Etc.
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42
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Section 11.04. Payment Over of
Other Proceeds
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44
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Section 11.05.
Subrogation
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44
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Section 11.06. Obligations of
Company Unconditional
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45
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Section 11.07. Notice to
Trustee
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45
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Section 11.08. Reliance on
Judicial Order or Certificate of Liquidating Agent
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46
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Section 11.09. Trustee’s
Relation to Senior Debt
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46
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Section 11.10. Subordination
Rights Not Impaired by Acts or Omissions of the Company or Holders
of Senior Debt
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46
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Section 11.11. Holders
Authorize Trustee to Effectuate Subordination of
Securities
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46
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Section 11.12. Not to Prevent
Events of Default
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47
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Section 11.13. Trustee’s
Compensation Not Prejudiced
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47
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Section 11.14. No Waiver of
Subordination Provisions
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47
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Section 11.15. Limitations on
Enforcement
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47
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Section 11.16. Trust Monies Not
Subordinated
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48
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Section 11.17.
Non-competition
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48
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Section 11.18. Filing of Claims
Upon an Insolvency Event
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48
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ii
SECOND SUPPLEMENTAL INDENTURE dated
as of June [ · ], 2009, between Globalstar, Inc., a
Delaware corporation (the “ Company ”) and U.S.
Bank National Association, 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 8.00% Convertible Senior
Unsecured Notes (the “Securities”) on the date
hereof.
W I T N E S S E T H:
WHEREAS, this Second Supplemental
Indenture is supplemental to the Original Indenture; and
WHEREAS, for its lawful corporate
purposes, the Company has duly authorized the issue of the
Securities which comprise (i) Original Securities (as defined
herein) in the aggregate principal amount of $55,000,000 and
(ii) Additional Securities (as defined herein) issued in
accordance with the terms hereof, and in order to provide the terms
and conditions upon which the Securities are to be authenticated,
issued and delivered, the Company has duly authorized the execution
and delivery of this Second Supplemental Indenture; and
WHEREAS, pursuant to
Section 3.1 of the Original Indenture, the Company may
establish one or more series of Securities (as such term is defined
in the Original Indenture) from time to time as authorized by a
supplemental indenture, of which the Securities shall be one such
series; and
WHEREAS, the Form of Security,
the certificate of authentication to be borne by each Security, the
Assignment Form, the Form of Conversion Notice, and the
Form of Fundamental Change Purchase Notice to be borne by the
Securities are to be substantially in the forms hereinafter
provided for; and
WHEREAS, all acts and things
necessary to make the Securities, 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 Second Supplemental
Indenture and the issue hereunder of the Securities have in all
respects been duly authorized.
NOW, THEREFORE, THIS SECOND
SUPPLEMENTAL INDENTURE WITNESSETH:
That in order to declare the terms
and conditions upon which the Securities are, and are to be,
authenticated, issued and delivered, and in consideration of the
premises and of the purchase and acceptance of the Securities 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 Securities (except as otherwise
provided below), as follows:
1
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Scope
of Second Supplemental Indenture. The changes,
modifications and supplements to the Original Indenture affected by
this Second Supplemental Indenture shall be applicable only with
respect to, and shall only govern the terms of, the Securities,
which comprise (i) Original Securities in the aggregate
principal amount of $55,000,000 and (ii) Additional Securities
issued in accordance with the terms hereof, which in each case 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 Second 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 Second
Supplemental Indenture and for purposes of the Original Indenture
as it relates to the Securities shall have the respective meanings
specified in this Section 1.02. Except as otherwise
provided in this Second 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 Second
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 Second
Supplemental Indenture. The words “herein,”
“hereof,” “hereunder,” and words of similar
import refer to this Second Supplemental Indenture as a whole and
not to any particular Article, Section or other
subdivision.
“ Additional Interest
” has the meaning specified in
Section 5.01(f).
“ Additional Securities
” means additional Securities issued under this Second
Supplemental Indenture in accordance with Sections 2.01 and 3.01
hereof, as part of the same series as the Initial
Securities.
“ Base Conversion Price
” at any time means a dollar amount equal to $1,000 divided
by the Base Conversion Rate at such time, rounded to the nearest
cent.
“ Base Conversion Rate
” shall initially be 555.6 shares of Common Stock per $1,000
principal amount of Securities, subject to adjustment as provided
in Article 9.
“ Beneficial Owner
” shall mean, with respect to any security, any Person who is
considered a “beneficial owner” of such security in
accordance with Rule 13d-3 promulgated by the SEC under the
Exchange Act.
“ Business Day ”
means any day other than a Saturday, a Sunday or a day on which
banking institutions in The City of New York are authorized or
required by law, regulation or executive order to close.
2
“ 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.
“ Change of Control
” means the occurrence of any of the following
events:
(1)
any “person” or “group” (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act) is
or becomes the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a
Person shall be deemed to have beneficial ownership of all shares
that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time),
directly or indirectly, of Voting Stock representing 50% or more
(or, if such person is Thermo Capital Partners LLC, 70% or more) of
the total voting power of all outstanding Voting Stock of the
Company; or
(2)
the Company consolidates with, or merges with or into, another
Person or the Company sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets to any
Person; provided, however, that any such transaction will not be a
Change of Control if immediately after such transaction the Person
or Persons that “beneficially owned” (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act) immediately
prior to the transaction, directly or indirectly, Voting Stock
representing a majority of the total voting power of all
outstanding Voting Stock of the Company, “beneficially own or
owns” (as so determined), directly or indirectly, Voting
Stock representing a majority of the total voting power of the
outstanding Voting Stock of the surviving or transferee person;
or
(3)
the first day on which the Continuing Directors cease for any
reason to constitute a majority of the Board of Directors (defined
without regard to the words “or any duly authorized committee
of that board to which the powers of that board have been lawfully
delegated” in such definition); or
(4)
the adoption of a plan of liquidation or dissolution of the
Company.
The number of shares of
“outstanding Voting Stock of the Company” for purposes
of clause (1) of the definition of Change of Control, shall
include (without duplication) all shares of Common Stock that any
Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time.
“ Close of Business
” means 5:00 p.m. New York City time.
“ Closing Sale Price
” of the Common Stock (or any other securities on any date)
means the last reported sale price per share (or if no last
reported 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 United States national or
regional securities exchange on which the Common Stock or such
securities, as applicable, are listed for trading. If the Common
Stock or the other security, as applicable, is not listed for
trading on a United States national or regional securities exchange
on the relevant date, the Closing Sale Price will be the last
quoted bid price for Common Stock or the other security, as
applicable, in the over-the-counter market on the relevant date as
reported by Pink Sheets LLC or similar organization. If Common
Stock or the other security, as applicable, is not so
quoted
3
the Closing Sale Price will be the average of
the mid-point of the last bid and ask prices for Common Stock or
the other security, as applicable, on the relevant date from each
of three nationally recognized independent investment banking firms
selected by the Company for this purpose (which determination shall
be conclusive and shall be evidenced by an Officer’s
Certificate delivered to the Trustee).
“ COFACE Agent ”
means BNP Paribas, as COFACE Agent under the COFACE Facility
Agreement.
“ COFACE Facility
Agreement ” means the COFACE Facility Agreement dated as
of June 5, 2009 between the Company, BNP Paribas,
Société Général, Natixis, Calyon,
Crédit Industriel et Commercial as mandated lead arrangers,
the COFACE Agent, BNP Paribas as security agent and the lenders
party thereto.
“ COFACE Final Maturity
Date ” means the earlier to occur of
(i) December 15, 2019 and (ii) the date that is 104
months after the final “Launch” as such term is defined
in the COFACE Facility Agreement.
“ COFACE Finance
Documents ” means the “Finance Documents” as
such term is defined in the COFACE Facility Agreement.
“ COFACE Finance
Parties ” means the “Finance Parties” as such
term is defined in the COFACE Facility Agreement.
“ COFACE Security Agent
” means BNP Paribas, as Security Agent under the COFACE
Facility Agreement.
“ Common Stock ”
means the Company’s common stock, par value $0.0001 per share
at the date of this Second Supplemental Indenture or, subject to
Section 9.09, 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 which the total
number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such
classes resulting from all such reclassifications.
“ Continuing Directors
” means, as of any date of determination, any member of the
Board of Directors who was (a) a member of the Board of
Directors on the date of the Original Indenture or
(b) nominated for election or elected to the Board of
Directors with the approval of a majority of the Continuing
Directors who were members of the Board of Directors at the time of
such nomination or election. Solely for purposes of this
definition, the term “Board of Directors” shall be
defined without regard to the words “or any duly authorized
committee of that board to which the powers of that board have been
lawfully delegated” in such definition.
“ 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.
4
“ Ex-Dividend Date
” means the first date upon which a sale of the Common Stock
does not automatically transfer the right to receive the relevant
distribution from the seller of the Common Stock to its
buyer.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated
thereunder.
“ Fair Market Value
” means the amount that a willing buyer would pay a willing
seller in an arm’s length transaction.
“ Final Discharge Date
” means the date on which all the Senior Debt has been
unconditionally and irrevocably paid and discharged in full and
none of the COFACE Finance Parties is under any obligation (whether
actual or contingent) to make advances or provide other financial
accommodation to the Issuer under the COFACE Finance
Documents.
A “ Fundamental Change
” means the occurrence of a Change of Control or a
Termination of Trading.
“ Initial Securities
” means the first $55,000,000 of aggregate principal amount
of Securities issued under this Second Supplemental Indenture on
the date hereof.
“ Indenture ”
means the Original Indenture, as amended and supplemented by this
Second Supplemental Indenture and, if further amended or
supplemented as herein provided, as so amended or
supplemented.
“ Insolvency Event
” means a situation where any of the following occurs in
respect of the Issuer: (a) the commencement of a
voluntary case (or analogous motion) under the US federal
bankruptcy laws or under other laws, domestic or foreign, relating
to bankruptcy, insolvency, reorganization, winding-up or adjustment
of debts or analogous proceedings; (b) the Issuer’s
filing of a petition (or analogous motion) seeking to take
advantage of any other laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up, composition for
adjustment of debts or analogous proceedings; (c) the
Issuer’s consent to, or failure to contest, in a timely and
appropriate manner any petition filed against it in an involuntary
case under such bankruptcy laws or other laws; (d) any
application for or consent to, or failure to contest in a timely
and appropriate manner, the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator or of a
substantial part of its property, domestic or foreign; (e) any
admission in writing by the Issuer of its inability to pay its
debts as they become due; (f) any general assignment for the
benefit of creditors; (g) the taking of any corporate action
for the purpose of authorizing any of the foregoing; or
(h) any suspension or threat to suspend making payment on any
of the Issuer’s debts or, by reason of actual or anticipated
financial difficulties, commencement of negotiations with
one (1) or more creditors with a view to rescheduling any
of the Issuer’s indebtedness (other than the COFACE Finance
Parties in connection with the COFACE Finance
Documents).
“ Intercreditor
Agreement ” means the Subordination Deed between the
Company, the Trustee and BNP Paribas as COFACE Agent under the
COFACE Facility Agreement providing for the subordination of the
Company’s obligations under this Indenture for the benefit of
the COFACE Finance Parties.
5
“ Interest Payment Date
” means June [15] and December [15] of each
calendar year, beginning with, and including, December [15],
2009.
“ Issue Date ”
means June [ · ], 2009.
“ Market Disruption
Event ” means the occurrence or existence for more than
one half hour period in the aggregate on any Scheduled Trading Day
for the Common Stock of any suspension or limitation imposed on
trading (by reason of movements in price exceeding limits permitted
by NASDAQ or otherwise) in the Common Stock or in any options,
contracts or futures contracts relating to the Common Stock, and
the suspension or limitation occurs or exists at any time before
1:00 p.m. (New York City time) on such Scheduled Trading
Day.
“ NASDAQ ” means
The NASDAQ Global Select Market.
“ Officer ”
means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer or any Vice President of such
Person.
“ Opening of Business
” means 9:00 a.m. New York City time.
“ Original Indenture
” means the indenture for Senior Debt Securities dated as of
April 15, 2008 by and between the Company and the
Trustee.
“ Original Securities
” means the $55,000,000 aggregate principal amount of
Securities issued on the date hereof.
“ Permitted Payment
” means (a) any payment made in the form of Additional
Securities or PIK Interest Shares in respect of interest and other
amounts due on the Securities or (b) payments made at any time
that “Shareholder Distributions” are permitted under
Clause 22.6 of the COFACE Facility Agreement.
“ Person ” means
an individual, partnership, corporation, business trust, limited
liability company, limited liability partnership, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a governmental body.
“ PIK Interest Shares
” means shares of Common Stock issued in payment of interest
on Securities in accordance with Section 3.01
hereof.
“ Placement Agent
” means Lazard Capital Markets LLC.
“ Placement Agent
Agreement ” means the Placement Agent Agreement dated
June [16], 2009 between the Company and the Placement Agent
related to the initial placement of the Securities.
“ Prospectus Supplement
” means the final prospectus supplement, dated
June [16], 2009, relating to the offering by the Company of
the Securities.
6
“ Regular Record Date
” for the payment of interest on the Securities, means the
May 31 (whether or not a Business Day) immediately preceding
an Interest Payment Date on June 15 and the November 30
(whether or not a Business Day) immediately preceding an Interest
Payment Date on December 15.
“ Scheduled Trading Day
” means a day that is scheduled to be a Trading
Day.
“ Securities ”
has the meaning ascribed to it in the second introductory paragraph
of this Second Supplemental Indenture.
“ Securities Act
” means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC 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.
“ Senior Debt ”
means all Debt of the Company, whether currently outstanding or
hereafter issued, owed to any COFACE Finance Party under or in
connection with the COFACE Finance Documents, including any
amendment thereto or refinancing thereof, provided that the
aggregate amount of Senior Debt at any time outstanding shall not
exceed $886 million.
“ Shareholder Approval
” means the approval by the Company’s shareholders of
the issuance of all shares of Common Stock issuable upon conversion
of the Securities and exercise of the Warrants in accordance with
the requirements of Listing Rule 5635(d) of
NASDAQ.
“ Special Interest
” has the meaning specified in Section 5.02.
“ Stated Maturity
” means, with respect to the payment of principal of the
Securities, the later to occur of (i) June [
·
], 2019 and (ii) the date that
is six months after COFACE Final Maturity Date.
“ Termination of
Trading ” will be deemed to have occurred if the Common
Stock (or other common stock into which the Securities are then
convertible) is not listed on a United States national securities
exchange or approved for quotation and trading on a national
automated dealer quotation system or established automated
over-the-counter trading market in the United States.
“ Trading Day ”
means any day on which (i) there is no Market Disruption Event
and (ii) NASDAQ is open for trading, or, if the Common Stock
is not listed on NASDAQ, any day on which the principal national
securities exchange on which the Common Stock is listed is open for
trading, or, if the Common Stock is not listed on a national
securities exchange, any Business Day. A “ Trading
Day ” only includes those days that have a scheduled
closing time of 4:00 p.m. (New York City time) or the then
standard closing time for regular trading on the relevant exchange
or trading system.
“ UCC ” means the
Uniform Commercial Code as in effect in the State of New
York.
7
“ Voting Stock ”
of any Person means all classes of the Capital Stock of such Person
entitled to vote generally in the election of the board of
directors, managers or trustees of such Person.
“ Warrants ”
means the warrants to purchase shares of the Common Stock issued on
the date hereof in connection with the sale of the
Securities.
Section 1.03. Other
Definitions .
|
Term
|
|
Defined in
Section
|
|
“Additional Shares”
|
|
9.05(a)
|
|
“Agent Members”
|
|
2.06(a)
|
|
“Business Combination”
|
|
9.09(a)
|
|
“Company Notice”
|
|
8.02
|
|
“Company Notice Date”
|
|
8.02
|
|
“Conversion Date”
|
|
9.02(a)
|
|
“Conversion Shares”
|
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9.03(a)
|
|
“Effective Date”
|
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9.05(a)
|
|
“Fundamental Change Purchase
Date”
|
|
8.01(a)
|
|
“Fundamental Change Purchase
Notice”
|
|
8.01(c)
|
|
“Fundamental Change Purchase
Price”
|
|
8.01(a)
|
|
“Global Security Legend”
|
|
2.03
|
|
“Make Whole Fundamental
Change”
|
|
9.05(a)
|
|
“Make Whole Fundamental Change
Notice”
|
|
9.05(a)
|
|
“Make Whole Premium”
|
|
9.05(a)
|
|
“Paying Agent”
|
|
2.04
|
|
“Registrar”
|
|
2.04
|
|
“Settlement Date”
|
|
9.03(b)
|
|
“Spin-Off”
|
|
9.04(d)
|
|
“Stock Price”
|
|
9.05(b)
|
|
“Valuation Period”
|
|
9.04(d)
|
Section 1.04.
Rules of Construction . In addition to the
rules of construction set forth in Section 1.1 of the
Original Indenture, unless the context otherwise
requires:
(a)
“or” is not exclusive; and
(b)
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.
ARTICLE 2
THE SECURITIES
Section 2.01. Title;
Amount and Issue of Securities; Principal and Interest .
(a) The Securities shall be known and designated as the
“8.00% Convertible Senior Unsecured Notes”
of
8
the Company. The aggregate principal
amount of Securities that may be authenticated and delivered under
this Second Supplemental Indenture is initially limited to
(i) $55,000,000 in Original Securities and (ii) such
Additional Securities as shall be issued from time to time in
accordance with the terms hereof, except for Securities
authenticated and delivered upon registration of, transfer of, or
in exchange for or in lieu of other Securities pursuant to the
terms hereof.
(b)
Subject to Section 5.2 of the Original Indenture, the
Securities shall mature on the Stated Maturity unless earlier
converted, redeemed or purchased in accordance with the provisions
hereof.
(c)
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 June 15 and
December 15 in each year, commencing December 15,
2009. The interest so payable on any Security shall be paid
to the Person in whose name such Security is registered at the
close of business on the Regular Record Date for such Interest
Payment Date. Interest on the Securities will be payable
solely in the form of (a) Additional Securities in the
aggregate principal amount equal to the amount of the interest due
on the applicable Interest Payment Date or (b) PIK Interest
Shares in accordance with Section 3.01 hereof. For
purposes of this Second Supplemental Indenture and the Securities,
unless the context clearly requires otherwise, references to
“interest” shall include Additional Interest and
Special Interest.
(d)
Principal on Global Securities shall be payable to DTC in
immediately available funds.
(e)
Principal of Definitive Securities shall be payable at the office
of the Paying Agent, which initially will be an office or agency of
the Trustee, or an office or agency maintained for such purpose, in
the Borough of Manhattan, The City of New York.
Section 2.02.
Form of Securities . (a) 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 Second Supplemental Indenture and to the
extent applicable, the Company and the Trustee, by their execution
and delivery of this Second Supplemental Indenture, expressly agree
to such terms and provisions and to be bound thereby.
(b)
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.
9
Section 2.03.
Legends . (a) Global Security Legend.
Notwithstanding anything to the contrary provided in
Article Two the Original Indenture each Global Security shall
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.”
(b)
Legend for Definitive Securities. Notwithstanding anything to
the contrary provided in Article Two of the Original Indenture
each Definitive Security shall bear a legend substantially in the
following form:
“THIS SECURITY WILL NOT BE
ACCEPTED IN EXCHANGE FOR A BENEFICIAL INTEREST IN A GLOBAL SECURITY
UNLESS THE HOLDER OF THIS SECURITY, SUBSEQUENT TO SUCH EXCHANGE,
WILL HOLD NO SECURITIES.”
Section 2.04.
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 ”), which Registrar shall constitute a
Security Register (as such term is defined in the Original
Indenture) and an office or agency where Securities may be
presented for payment (the “ Paying Agent
”). 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 or Paying Agent not
a party to this Second Supplemental Indenture, which shall
incorporate the terms of the Trust Indenture Act. The
agreement shall implement the provisions of this Second
Supplemental 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
10
pursuant to Section 6.7 of the Original
Indenture. The Company or any of its domestically organized,
wholly owned Subsidiaries may act as Paying Agent, 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 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 2.05. General
Provisions Relating to Transfer and Exchange . 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 the 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.
In addition to the matters described
in the 7th paragraph of Section 3.5 of the Original Indenture,
neither the Company nor the Registrar shall be required to exchange
or register a transfer of any Securities surrendered for conversion
or, if a portion of any Security is surrendered for conversion, the
portion thereof surrendered for conversion.
Section 2.06.
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; and
(iii)
bear the Global
Security Legend set forth in Section 2.03(a).
Members of, or participants in, DTC
(“ Agent Members ”) shall have no rights under
this Second Supplemental 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 the 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 Second Supplemental Indenture
or the Securities.
11
ARTICLE 3
COVENANTS
Section 3.01. Payment
of Securities . (a) The Company will pay or cause
to be paid the principal of and interest and Special Interest, if
any, on the Securities on the dates and in the manner provided in
the Securities. Principal will be considered paid on the date
due if the Paying Agent, if other than the Company or a Subsidiary
thereof, holds as of 11:00 a.m. New York City time on the due
date money deposited by the Company in immediately available funds
and designated for and sufficient to pay all principal and interest
then due or, in the case of interest and Special Interest and
Additional Interest, if any, paid on or before the Stated Maturity
of any Security, in (i) Additional Securities in an aggregate
principal amount equal to the amount of such interest and Special
Interest and Additional Interest, if any, then due, or (ii) in
the case of Holders for which a Common Stock Election is effective,
in PIK Interest Shares in an amount calculated in accordance with
paragraph (b) of this Section 3.01. Additional
Securities shall automatically be deemed to have been issued to
each Holder of record in an aggregate principal amount equal to the
amount of interest and Special Interest and Additional Interest, if
any, due to such Holder on the applicable Interest Payment Date,
and the Company shall thereafter promptly cause to be executed and
authenticated such Additional Securities in accordance with
Section 2.3 of the Original Indenture and deliver such
Additional Securities to each Holder of record (or to the Trustee
or the authenticating agent in custody for such Person).
Subject to Section 3.01(b)(iv), PIK Interest Shares, if any,
shall automatically be deemed to have been issued to each
applicable Holder of record in an amount determined as set forth in
Section 3.01(b), and the Company shall thereafter deliver such
PIK Interest Shares as set forth in Section 3.01(b). Such
Paying Agent shall return to the Company promptly, and in any
event, no later than three Business Days following the date of
payment, any money (including accrued interest) that exceeds such
amount of principal and interest paid on the Securities or, in the
case of interest and Special Interest and Additional Interest, if
any, paid on or before the Stated Maturity, any Additional
Securities or Additional Shares outstanding in connection with the
payment of such interest.
The Company will pay interest on
overdue principal at the rate specified in the Securities in
Additional Securities or PIK Interest Shares, as applicable, and it
will pay interest on overdue installments of interest and
Special Interest and Additional Interest, if any, in Additional
Securities or PIK Interest Shares, as applicable, at the same
rate.
Interest shall be computed on the
basis of a 360-day year comprising twelve 30-day
months.
(b) Subject to the procedures
set forth in this paragraph, a Holder of Securities may, in its
sole discretion, elect to receive interest and Special Interest and
Additional Interest, if any, in respect of the Securities held by
it in the form of Common Stock in lieu of Additional
Shares.
(i)
Such Holder must
complete and manually sign the interest election notice on the back
of the Security (which shall be substantially in the form set forth
in the form of Security attached as Exhibit A (an
“ Interest Election
Notice ”) and deliver such
notice to the Trustee at least 5 Business Days prior to the first
Interest Payment Date for which such election will be
12
effective.
Such Interest Election Notice shall remain effective and apply to
all subsequent Interest Payment Dates unless and until such Holder
revokes it by delivering written notice to the Trustee as set forth
on the Interest Election Notice.
(ii)
On each Interest
Payment Date, a Holder for which an Interest Election Notice is in
effect shall be entitled to receive, in lieu of Additional
Securities, a number of PIK
Interest Shares equal to the quotient of
(x) the aggregate amount of interest and Special Interest and
Additional Interest, if any, payable on the applicable Securities
on such Interest Payment Date, divided by
(y) 95% of the volume-weighted average Closing Price of the
Common Stock for the 10 Trading Days immediately preceding the
Interest Payment Date.
(iii)
The Company shall
deliver the PIK Interest Shares as soon as practicable, and in no
event later than the third Business Day following the applicable
Interest Payment Date.
(iv)
Notwithstanding
anything to the contrary herein, all interest and Special Interest
and Additional Interest, if any, will be payable solely in the form
of Additional Securities (and not in PIK Interest Shares) at any
time that the volume-weighted average Closing Price of the Common
Stock for the 10 Trading Days immediately preceding the applicable
Interest Payment Date is less than $0.25 per share.
Section 3.02. 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 Second Supplemental
Indenture.
Section 3.03.
Statement by Officer as to Default . The Company shall
deliver to the Trustee, within 30 days after the Company becomes
aware of the occurrence of any Event of Default or Default, an
Officer’s Certificate setting forth the details of such
events which would constitute an Event of Default or Default, its
status and the action which the Company proposes to take with
respect thereto.
Section 3.04. Special
Interest . If Special Interest is payable by the Company
pursuant to Section 5.02 the Company shall deliver to the
Trustee an Officer’s Certificate to that effect stating
(i) the amount of such Special Interest that is payable and
(ii) the date on which such Special Interest is payable.
Unless and until a Responsible Officer of the Trustee receives such
a certificate, the Trustee may assume without inquiry that no
Special Interest is payable. If the Company has paid Special
Interest directly to the persons entitled to it, the Company shall
deliver to the Trustee an Officer’s Certificate setting forth
the particulars of such payment.
Section 3.05. Reports
by Company . (a) In addition to and notwithstanding
the Company’s reporting obligations set forth in
Section 7.4 of the Original Indenture, the Company shall
deliver to the Trustee electronically (or otherwise in conformity
with Section 1.6 of the
13
Original Indenture), within 15 days after it is
required to file the same with the SEC, copies of all annual
reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may by
rules and regulations prescribe) that the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. In the event the Company at any time is no longer
subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, the Company shall file with the
Trustee all reports, if any, as may be required by the provisions
of Section 314(a) of the Trust Indenture Act.
(b)
Delivery of such reports and documents to the Trustee is for
informational purposes only and the Trustee’s receipt of such
shall not constitute constructive notice of any information
contained therein or determinable from information contained
therein, including the compliance by the Company with any of its
covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officer’s Certificates).
Section 3.06.
Shareholder Approval . The Company shall obtain
Shareholder Approval within 60 days of the date hereof.
Section 3.07. Usury
Laws . The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of,
any usury law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law has been enacted.
ARTICLE 4
REDEMPTION OF SECURITIES
Section 4.01.
Mandatory Redemption .
(a)
On the Stated Maturity, the Company shall redeem for cash all
Outstanding Securities, at a price (the “ Redemption
Price ”) equal to 100% of the principal amount of
Securities to be redeemed, plus accrued and unpaid interest to, but
excluding, the Redemption Date; provided that if the Redemption
Date falls after a Regular Record Date and on or prior to the
corresponding Interest Payment Date, the Redemption Price shall be
100% of the principal amount of the Securities redeemed but shall
not include accrued and unpaid interest, if any. Instead, the
Company shall pay such accrued and unpaid interest, if any, on the
Interest Payment Date to the Holder of record at the Close of
Business on the corresponding Regular Record Date. If the Company
is required to redeem Securities pursuant to this
Section 4.01, it shall notify the Trustee in writing of such
redemption together with the Redemption Date, the Base Conversion
Rate, the principal amount of Securities to be redeemed and the
Redemption Price.
(b)
The Company shall not redeem any of the Securities on any date if
the principal amount of the Securities has been accelerated, and
the acceleration has not been rescinded on or prior to such
date.
14
(c)
Except as provided in paragraph
(a) of this Section 4.01, the Company shall not be
required to make any mandatory redemption of the Securities.
The Securities are not subject to redemption through the operation
of any sinking fund.
Section 4.02. Notice
of Redemption . The Company shall notify each Holder of
Securities to be redeemed in the manner provided in
Section 11.4 of the Original Indenture. In addition to
those matters set forth in Section 11.4 of the Original
Indenture, a notice of redemption sent to the Holder shall
state:
(a)
the then current Base Conversion
Rate and provide a statement that the Securities called for
redemption may be converted at any time before the Close of
Business on the Business Day immediately prior to the Redemption
Date, and that Holders who wish to convert Securities must comply
with the relevant procedures;
(b)
that Securities called for
redemption and not converted shall be redeemed on the Redemption
Date;
(c)
the name and address of the Paying
Agent and the Conversion Agent;
(d)
that Securities called for
redemption must be surrendered to the Paying Agent to collect the
Redemption Price; and
(e)
the CUSIP or ISIN number of the
Securities.
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.01.
Additional Events of Default . In addition to those
Events of Default set forth in Section 5.1 of the Original
Indenture, the following events shall also be Events of Default
with respect to the Securities:
(a)
failure by the Company to pay on
interest on the Securities within five Business Days of the
applicable Interest Payment Date;
(b)
failure by the Company to comply
with its obligation to convert the Securities into shares of Common
Stock upon exercise of a Holder’s conversion right in
accordance with Article 9 and, if applicable, failure by the
Company to deliver any Make-Whole Premium pursuant to
Section 9.05;
(c)
failure by the Company to provide to
the Holders Company Notice of a Fundamental Change pursuant to
Section 8.01;
(d)
default by the Company or any
Subsidiary in the payment of 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 indebtedness of
the Company or indebtedness of any Subsidiary for money borrowed in
excess of $5.0 million in the aggregate, whether the indebtedness
exists or shall hereafter be created, resulting in the indebtedness
becoming or being declared due and payable, and the acceleration
shall not have been rescinded or annulled within
15
30 days after written notice of the acceleration
has been received by the Company or the Subsidiary from the Trustee
(or has been received by the Company or the Subsidiary, as the case
may be, and the Trustee from Holders of at least 25% in principal
amount of Outstanding Securities);
(e)
default in the performance, or
breach, of any covenant in this Indenture (other than the covenant
in Section 8.1 of the Original Indenture or any other covenant
a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with) and continuance of such
default or breach for a period of 45 days after there has been
given to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities a written notice specifying such default or
breach and requiring it to be remedied; and
(f)
failure by the Company or any
Subsidiary to pay final and non-appealable judgments, the aggregate
uninsured portion of which is at least $10.0 million, if the
judgments are not paid, discharged or fully bonded against within
60 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 affected 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.
Prior to the declaration of the
acceleration of the Securities, the Holders of two-thirds of the
aggregate principal amount of the Outstanding Securities may waive,
on behalf of all of the Holders of the Securities, any Event of
Default set forth in this Section 5.01 and its consequences
except an Event of Default under clause (a) and clause
(b) of this Section 5.01.
The Company will deliver to the
Trustee promptly, and in no case more than 3 Business Days, after
becoming aware of the occurrence of an Event of Default, written
notice thereof.
(g)
At any time that an Event of Default
(other than an Event of Default arising solely from the
Company’s failure to comply with the reporting obligations
under Section 3.05(a) hereof) has occurred and is
continuing, additional interest shall accrue on the Securities at a
rate equal to 2.50% per annum of the principal amount of the
Securities (the “ Additional Interest ”).
The Additional Interest shall be paid semi-annually in arrears,
with the first semi-annual payment due on the first regular
Interest Payment Date following the date on which the Additional
Interest began to accrue on the Securities. The Additional Interest
shall accrue on all Outstanding Securities from and including the
date on which an Event of Default shall first occur to, but not
including, the date on which the Event of Default shall have been
cured or waived.
Section 5.02 . Sole
Remedy for Failure to Report . Notwithstanding any other
provision of the Indenture, to the extent elected by the Company,
the sole remedy for an Event of Default relating to the failure to
comply with the reporting obligations under
Section 3.05(a) and for any failure to comply with the
requirements of Section 314(a)(1) of the Trust Indenture
Act, will for the first 45 days after the occurrence of the Event
of Default consist exclusively of the right to receive special
interest on the Securities at a rate equal to 0.50% per annum of
the principal amount of the Securities (the “ Special
Interest ”). The Special Interest shall be paid
semi-
16
annually in arrears, with the first semi-annual
payment due on the first regular Interest Payment Date following
the date on which the Special Interest began to accrue on any
Securities. The Special Interest shall accrue on all Outstanding
Securities from and including the date on which an Event of Default
relating to a failure to comply with the provisions of
Section 3.05(a) or a failure to comply with
Section 314(a)(1) of the Trust Indenture Act shall first
occur to, but not including, the 45th day thereafter (or any
earlier date on which the Event of Default shall have been cured or
waived). On such 45th day (or earlier, if the Event of Default
relating to the failure to comply with
Section 3.05(a) and failure to comply with
Section 314(a)(1) of the Trust Indenture Act is cured or
waived prior to such 45th day), the Special Interest shall cease to
accrue and, if the Event of Default relating to the failure to
comply with Section 3.05(a) and failure to comply with
Section 314(a)(1) of the Trust Indenture Act shall not
have been cured or waived prior to the 45th day, the Securities
shall be subject to acceleration as provided in Section 5.2 of
the Original Indenture. The provisions of this paragraph shall not
affect the rights of Holders in the event of the occurrence of any
other Event of Default. If the Company shall not elect to pay
Special Interest upon an Event of Default resulting from the
failure of the Company to comply with the provisions of
Section 3.05(a) and for any failure by it to comply with
Section 314(a)(1) of the Trust Indenture Act, the
Securities shall be subject to acceleration as provided in
Section 5.2 of the Original Indenture.
If the Company shall elect to pay
Special Interest in connection with an Event of Default relating to
its failure to comply with the requirements of
Section 3.05(a) and for any failure by it to comply with
Section 314(a)(1) of the Trust Indenture Act,
(1) the Company shall notify all Holders and the Trustee and
Paying Agent of the election on or before the Close of Business on
the date on which the Event of Default shall first occur, and
(2) all references herein to interest accrued or payable as of
any date shall include any Special Interest accrued or payable as
of such date as provided in this Section 5.02.
ARTICLE 6
DISCHARGE OF INDENTURE
Section 6.01 .
Discharge of Liability on Securities . Article 4 of
the Original Indenture shall not apply to the Securities.
When (1) the Company shall deliver to the Registrar for
cancellation all Securities theretofore authenticated (other than
any Securities which have been mutilated, destroyed, lost or
wrongfully taken 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 deposited for conversion and the Company
shall deliver to the Holders shares of Common Stock or a
combination of 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 wrongfully taken 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 for the payment of principal of the
Securities or Redemption Date or Fundamental Change Purchase Date,
as applicable, and the Company shall deposit with the Trustee cash
and shares of Common Stock, if any, 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
wrongfully taken and in lieu of or in substitution for which other
Securities shall have been authenticated and delivered)
17
not theretofore canceled or delivered to the
Registrar for cancellation, including the principal amount and
interest accrued and unpaid to such Stated Maturity for the payment
of principal of the Securities or Redemption Date or Fundamental
Change Purchase 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 Second
Supplemental 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 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 Second Supplemental Indenture with respect to
the Securities), and the Trustee, on demand of the Company
accompanied by an Officer’s Certificate and an Opinion of
Counsel as required by Section 6.03 and at the cost and
expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Second
Supplemental 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, 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 Second Supplemental Indenture with respect
to the Securities.
Section 6.02.
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 the Indenture with respect to
the Securities shall be revived and reinstated as though no deposit
had occurred pursuant to Section 6.01 until such time as the
Trustee or the Paying Agent is permitted to apply all such money in
accordance with the Indenture and the Securities to the Holders
entitled thereto; provided, however, that if the Company make any
payment of principal amount of or interest on any Security
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 6.03.
Officer’s Certificate; Opinion of Counsel . Upon
any application or demand by the Company to the Trustee to take any
action under Section 6.01, the Company shall furnish to the
Trustee an Officer’s Certificate or Opinion of Counsel
stating that all conditions precedent, if any, provided for in this
Second Supplemental Indenture relating to the proposed action have
been complied with.
ARTICLE 7
AMENDMENTS
Section 7.01 . With
Consent of Holders . In addition to the matters described
in Section 9.2 of the Original Indenture, the Company and the
Trustee may not, without the consent of each
18
Holder of Outstanding Securities affected, amend
or waive any portion of the Indenture or the Securities for one or
more of the following purposes:
(a)
to reduce the Fundamental Change
Purchase Price or the Redemption Price payable with respect to any
of the Securities;
(b)
to change the principal amount, rate
of interest or Stated Maturity of any Security;
(c)
to change the Company’s
obligation to redeem the Securities on a Redemption Date in a
manner adverse to the Holder;
(d)
to change the Company’s
obligation to purchase any Security upon a Fundamental Change
pursuant to Section 8.01 in a manner adverse to the
Holder;
(e)
to reduce the Make Whole Premium or
otherwise modify the provisions of Section 9.05 in a manner
adverse to the Holder;
(f)
to reduce the Fundamental Change
Make-Whole Amount or otherwise modify the provisions of
Section 8.01 in a manner adverse to any Holder; and
(g)
to impair the right of a Holder to
convert any Security or reduce the amount of cash or the number of
shares of Common Stock (or any other property) receivable upon
conversion.
Section 7.02. Without
Consent of Holders . In addition to the matters described
in Section 9.1 of the Original Indenture, the Company and the
Trustee may amend or supplement the Indenture or the Securities
without notice to or consent of any Holder of an Outstanding
Security for one or more of the following purposes:
(a)
to cure any ambiguity, omission,
defect or inconsistency in the Indenture, to correct or supplement
any prov
